Lords Sitting of 2 July 1984

Preamble
The House met at half-past two of the clock: the LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.

Polytechnic of North London
Lord Beloff: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have proposals for the closure of the Polytechnic of North London.
The Earl of Swinton: No, my Lords.
Lord Beloff: My Lords, is my noble friend the Minister aware that for at least 10 years certain departments of this polytechnic have been subject to continuous disruption by students claiming, on political grounds, to dictate who should study, who should teach and what standard should be applied in examinations? At a time when public expenditure is being limited, could not more useful expenditure in the higher education field be found?
The Earl of Swinton: My Lords, I am aware of my noble friend's feeling on this matter, and I am sorry not to have given him an original reply which would have satisfied him more upon his birthday. However, as my noble friend says, the fact is that in some departments these events have indeed been happening: but in other departments matters have been going fairly well.
Lord Mulley: My Lords, I thank the Minister for giving us the assurance—and I take it to be an assurance—that the Government are not planning a further reduction in the powers of local authorities by
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intervening to close educational establishments. Will not the noble Earl agree that as has been said, while this college has had very difficult problems, it is now making quite an effort for progress, and that the type of questions that have been asked this afternoon are not helpful?
The Earl of Swinton: My Lords, I do not think that I would altogether agree with the noble Lord, Lord Mulley. Some of the comments made by my noble friend were very accurate and very justified. However, my right honourable friend does not have the power to close down an entire establishment like this; he can only close down individual courses, if he considers it necessary.
Baroness Cox: My Lords, is my noble friend aware that, although the Polytechnic of North London has suffered repeated disruptions (to which reference has already been made) for more than 12 years, no disciplinary action whatever has ever been taken by the governors or by the Inner London Education Authority, and that the situation is now so serious that some staff in some good departments would prefer to be relocated in a healthier academic environment?
Noble Lords: Reading!
Baroness Cox: My Lords, since the political composition of the ILEA is such that it is unlikely to take action to this effect, I should like to ask whether the Government might undertake a radical review or reorganisation of the polytechnics similar to that which has already taken place in London University?
The Earl of Swinton: My Lords, I found it rather difficult to hear my noble friend's questions because of the rather strange noises from the other side of the House; but I gather that her question referred to discipline. I understand that a joint advisory committee has been established between the ILEA and the polytechnic, and that it has already met several times. The aim of this committee is to tighten up the disciplinary procedures of the polytechnic in order to prevent unacceptable and disruptive behaviour either by individuals or by groups of students. The committee will also be considering the question of

3
communication between the polytechnic and staff and students with a view to recommending improvements. My right honourable friend looks forward to learning the outcome of the committee's deliberations in due course and he will be studying them most carefully.
Lord Annan: My Lords, would the noble Earl accept that, if politically it is impossible to close down whole institutions, would not it be possible to close those departments which are not really concerned with the work of polytechnics?—polytechnics being principally concerned with the applied sciences and with mathematics and perhaps with business studies. But the departments to which the noble Lord, Lord Beloff, was referring are not actually crucial to the existence of this polytechnic. Would it also be possible for the noble Earl to look into the reply he made about the consultations taking place between the Inner London Education Authority and the polytechnic? The Inner London Education Authority's representatives on the governing body of this polytechnic have for years supported disruptive action by students in that institution.
The Earl of Swinton: My Lords, in reply to the first part of Lord Annan's question, the courses to which he is probably referring are the BSc in sociology and the BA in Applied Social Studies. HM inspectors have reported several weaknesses in these courses. It is the practice where HMI reports reveal weaknesses to offer the institution and its maintaining or responsible local authority the opportunity to put matters right. Both the polytechnic directorate and the ILEA have agreed to take remedial action and we should not prejudge the issue. However, the advice of the national advisory body in respect of the Polytechnic of North London's provision for 1984–1985, as endorsed by my right honourable friend, entails a halving of student intakes in those subjects. So we hope that there will be an improvement. On the matter of discipline, I do not think I can go further than to say that my right honourable friend will be studying the report when it arrives.
Lord Cledwyn of Penrhos: My Lords, while no one defends or condones antics that go on from time to

EUROPEAN REGIONAL DEVELOPMENT FUND COMMITMENTS AND PAYMENTS TO BRITISH TELECOM 1981–1983

1981

1982

1983

Region

Commitments

Payments

Commitments

Payments

Commitments

Payments

Northern

6,682,800

9,999,881

5,320,200

174,775

4,614,300

2,473,668

North-West

3,881,700

963,253

2,664,000

951,230

6,566,520

2,657,417

Yorkshire and Humberside

1,206,000

—

—

—

2,865,000

—

East Midlands

—

—

—

—

—

—

West Midlands

—

—

—

—

3,192,300

—

South-West

—

904,500

1,397,400

5,265

2,985,900

143,460

Scotland

2,014,800

1,883,834

10,084,590

3,264,343

3,702,720

612,365

Wales

1,110,600

326,495

701,802

1,170,883

6,062,790

1,424,385

Great Britain

14,895,900

14,077,963

20,167,992

5,566,496

29,989,530

7,311,295

Northern Ireland

3,402,120

2,890,599

3,557,149

1,088,679

3,959,400

0

United Kingdom

18,298,020

16,968,562

23,725,141

6,655,175

33,948,930

7,311,295

Note: The payments shown in the table include some payments arising from commitments made in years prior to 1981.
time, is the noble Earl aware that in Oxford in the 13th century all the Welsh students were sent home and there was some talk of closing Oxford then? Could we have the same sense of proportion now?
The Earl of Swinton: My Lords, I think that over the years Welshman have invaded more than Oxford and there might be a feeling on this side of the House that some of them inflicted a certain amount of damage here the other day and that they might well be banished to Wales in return!

EEC Grants to British Telecom
2.43 p.m.
Lord Orr-Ewing: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much money was granted for regional development to British Telecom by the EEC in each of the last three years, how it was spent between the different United Kingdom regions, and how much private sector service providers received.
The Chancellor of the Duchy of Lancaster (Lord Cockfield): My Lords, as the Answer contains a number of figures I will with permission include the detailed analysis in the Official Report. But, in brief, in the three years 1981, 1982, and 1983 grants allocated by the ERDF towards public sector infrastructure works undertaken by BT in areas eligible for national regional aid amounted to £76 million. These figures do not include sums allocated under supplementary measures, as these formed part of the procedures adopted to give effect to the United Kingdom's budgetary refunds.
The position of private sector service providers is quite different. They would not normally qualify in respect of infrastructure works; and in respect of industrial projects ERDF aid would not go directly to the company concerned, but would be in partial reimbursement of regional aid.
Following is the detailed analysis referred to above:
Lord Orr-Ewing: My Lords, is my noble friend aware that the House must be very grateful that these quite amazing figures have emerged from this Question? A sum of £76 million to help the infrastructure in parts of our country which need it is wholly salutary, and perhaps more people would have taken part in the European elections had figures of this kind been known and had just what the EEC is doing for various sectors of our economy been known.
Lord Cockfield: My Lords, I am grateful to my noble friend for drawing attention to that matter.
Lord Bruce of Donington: My Lords, is the noble Lord aware that of the aid of £76 million which he has mentioned, some 71 per cent. was provided direct by the United Kingdom to the EEC, that the EEC is acting as a conduit in the matter, and that the only profit gained by the United Kingdom is some 8 per cent. of the total?
Lord Cockfield: No, my Lords, I would not accept the noble Lord's interpretation of the figures. Probably what he has in mind is ERDF aid to the private sector in respect of industrial projects, but even there the figures are quite different from those which the noble Lord has given.

Stockholm Conference: Mandate
2.45 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are aware that NATO representatives are alleged to be delaying serious negotiations in Stockholm by refusing to discuss any proposals other than those submitted by them which exclude consideration of naval and air forces and confine discussion to ground forces and ground-launched weapon systems; and whether they will seek to remove any such barriers to a free exchange of views.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, the mandate for the Stockholm Conference was adopted by consensus at the Madrid CSCE review meeting in 1983. It includes a provision that only those air and sea activities which form part of a notifiable land activity will be subject to measures to be agreed at Stockholm.
We and our allies have made it clear that we are prepared to consider any proposals which conform to the conference mandate. Moreover, Western and neutral participants have taken the lead in making procedural proposals to move the conference towards detailed negotiations. These are now under discussion.
Lord Jenkins of Putney: My Lords, is it not the case that the difficulty in the matter is that the conference is not making the progress which was expected, due to the mutual decision by each side not to discuss the proposals put forward by the other side? Would not progress be made if NATO representatives were to agree to discuss one Warsaw Pact proposal in return
6
for the Warsaw Pact countries agreeing to discuss one NATO proposal?
Baroness Young: My Lords, we should like to make progress at this conference, and the United Kingdom and the NATO powers have made proposals which are designed to reduce tension and the danger of surprise attack through increased openness about normal patterns of military behaviour. The Soviet Union proposals, which were formally tabled on 8th May, include a treaty on the no first use of force, a declaration on the no first use of nuclear weapons, a reduction in military budgets, a ban on chemical weapons in Europe, nuclear weapon-free zones, and some suggestions for building on measures in the Helsinki Final Act.
However, we believe that the measures that we have proposed are designed to reduce tension and the danger of surprise attack, and that this is the first step in this conference.

Voting Practice
2.47 p.m.
Lord Diamond: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask the Leader of the House what steps he proposes to codify the present practice of the House of Lords with regard to voting on Government Bills at Second and Third Reading.
The Lord President of the Council (Viscount Whitelaw): None, my Lords. The powers which this House possesses are considerable, but it has in the past exercised them with restraint, as indeed I hope that it will in the future. This restraint has been self-imposed, and I suspect that any attempt by the Leader of the House for the time being to impose a code of practice to regulate the position would be neither welcome nor effective.
Lord Diamond: My Lords, while expressing my gratitude to the noble Viscount for that Answer, may I ask him whether he is aware that there is considerable confusion among Ministers as to the extent of what he calls the restraint and what I might call the conventions under which this House works, particularly with regard to Second and Third Readings and in regard to the Motions which have recently been laid before your Lordships' House? Therefore, does he not think it would be helpful if this matter were to be examined by the appropriate committee and reported on, so that the House would have an opportunity to decide the extent of the conventions and whether the House ought to be bound by them? Is it not of considerable importance that when he and his noble friends find themselves sitting on this side of the Chamber they should feel bound by pecisely the same self-denying ordinance as do the present Opposition parties?
Viscount Whitelaw: My Lords, of course it is open to this House and, naturally, to the Procedure Committee to make any changes that they wish. If

7
they did so wish, of course it could be done. As far as the details are concerned, as a newcomer to this House I have learnt that a certain flexibility, together with a certain understanding of convention, has worked much to the benefit of this House. I hope that it will always be thus; and although I do not anticipate my translation from one side of the House to the other (although one never knows), I do not imagine that I would adopt any different position if I were in opposition from that which I seek to adopt now, except that I should be seeking to beat the Government, at which I think other people seem to be very successful, instead of defending them, at which I do not seem always to have been so successful.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Police and Criminal Evidence Bill will be adjourned for dinner at approximately 7 p.m. for approximately one hour. During this adjournment the Consideration of Commons Amendments to the Agricultural Holdings Bill will be taken.

Police and Criminal Evidence Bill
3.1 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington).
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Lord Mishcon Lord Mishcon moved Amendment No. 28:
After Clause 3, insert the following new clause:
("Code of practice.
.—(1) It shall be the duty of the Secretary of State to issue a code of practice in connection with the exercise by police officers of their powers and the duties under sections 1, 2 and 3 of this Act.
(2) The provisions of section 64 of this Act shall apply to such code of practice.").
The noble Lord said: In the other place during the debate on this Bill there was a considerable amount of discussion in regard to the need for codes of practice. I do not think that it is necessary for me to enter into a long dissertation on the advantages of having a code of practice when you are dealing with matters such as stop and search, arrest, detention, and so on. I think that your Lordships would be happier to know that codes of practice existed, and that the Secretary of State was mandated to prepare such codes of practice, the drafts of which would be placed before Parliament.
There was considerable pressure for that in the other place. The result of that pressure was that the Secretary of State gave an undertaking to look favourably on the inclusion in the Bill of provision for codes of practice. It was not possible for that undertaking to be implemented by any suggested legislative provision
8
until this came before your Lordships' House. My noble friends and I therefore put down as an amendment Amendment No. 28, which is now before your Lordships. It will be seen that that amendment provides that the Secretary of State shall issue—it is going to be his duty to issue under this amendment—
"a code of practice in connection with the exercise by police officers of their powers and the duties under sections 1, 2 and 3 of this Act".
May I briefly remind your Lordships that Part I of the Act deals with "Powers to Stop and Search"; Part II with "Powers of Entry, Search and Seizure"; and Part III with "Arrest". After this amendment was put down the Government, following upon their undertaking, honourably put down Amendment No. 156. Your Lordships will therefore notice that as a result of the pressure, properly exercised and courteously acknowledged in the other place, and as a result as well of this amendment put down by my noble friend and I, Amendment No. 156 appears.
Amendment No. 156: Clause 63, page 60, line 27, leave out from ("with") to ("the") in line 29 and insert—

(" (a) the exercise of statutory powers—

(i) to search a person without first arresting him; or

(ii) to search a vehicle without making an arrest;

(b) the detention, treatment, questioning and identification of persons by police officers;

(c) searches of premises by police officers; and

(d)")

May I therefore refer your Lordships to Amendment No. 156 and say briefly, while recognising that this is in some way in compliance with the undertaking, why it is the belief of my noble friends and I that that amendment is not as good as Amendment No. 28. Under that amendment there is in fact an amendment to the Bill at page 60, line 27. To follow this therefore one has to turn to page 60, line 27, and your Lordships will see that as a result of the amendment the words,
"detention, treatment, questioning and identification"
are left out, and
"the exercise of statutory powers"
comes into the Bill and it is limited to:

"(i) to search a person without first arresting him; or

(ii) to search a vehicle without making an arrest;

(b) the detention, treatment, questioning and identification of persons by police officers';
(c) searches of premises by police officers".
The first thing one notices about that amendment is that it provides that Clause 64 shall apply to these codes of practice, and that when the draft codes appear they will come before Parliament. But your Lordships will notice that the specific provisions that are laid down there omit various items. First of all we see reference to searching a person without first arresting him. What about a code of practice which deals with stopping a person before you decide to search him? Should there not be some code of practice relating to that, otherwise all innocent people are in danger of being stopped and having preliminary words uttered to them before a search?
There ought to be a code of practice about what you ought to suspect before you interfere with the lawful comings and goings of peaceful and honourable citizens. We also see provision for a search of a vehicle without making an arrest. There is nothing to do with stopping a vehicle without making an arrest. There is

9
nothing here, either, about the power of the police to enter and seize. Instead of that we have,
"searches of premises by police officers".
There is nothing about a code of practice which says what ought to be the situation before a police officer enters premises and seizes property.
Therefore I turn back—I think it is the logical thing to do—to Amendment No. 28 and ask your Lordships to be good enough to direct your attention to the fact that our amendment covers the whole of Clauses 1, 2 and 3 and does not attempt to dissect the clauses or extract various items from them. It makes it quite inclusive of 1, 2 and 3 in respect of which important powers of the police there ought to be codes of practice. It is in those general terms that I bring the amendment before your Lordships for your consideration. I hope I have differentiated between this amendment and Amendment No. 156 to your Lordships' satisfaction. I beg to move.
Lord Gifford: I understand that we shall be addressing our minds to the Minister's amendment, Amendment No. 156, at the same time as we consider the amendment in the name of my noble friends. I should like to say how much I welcome the introduction of a code of practice. For the moment I do not take up the point exactly what form it should be, but I welcome in principle that there will be such a code. I should like to renew the plea that I made on the last Committee day that a first draft at least of that code might be with us before we leave our consideration of this Bill.
May I mention two considerations which I hope will be taken into account when the code dealing with stops and searches is being drafted. The first concerns the question to which we have had to turn our attention on a number of occasions already; that is the question of colour and of prejudice. Anyone who thought that some of us were scaremongering when we drew attention to the bias which has been shown in the exercise of the police forces' existing powers would have understood why we did it when the report of the Policy Studies Institute on this matter was published. In the section headed, "Colour as a criterion for stops", in the fourth volume of the report, the researchers of the PSI—who, let us remember, spent many weeks and months in the company of metropolitan police officers—described the attitude of three relatively experienced police constables as to their relationship with coloured people, in their thoughts about colour and the stop and search powers. One of them said that he would give this advice to probationers:
"How does an experienced policeman decide who to stop? Well, the one that you stop is often wearing a woolly hat, he is dark in complexion, he has thick lips and he usually has dark, fuzzy hair".
The PSI reporters stated:
"This group of officers indulged in a great deal of racialist talk, but they also gave what they regarded as reasoned justifications for stopping black people. All three insisted that it was reasonable to stop any black people in cars because nine times out of ten they would have drugs".
The report commented that 3 per cent. of stops led to an arrest or charge and a further 5 per cent. lead only to an offence being reported.
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Finally, one of the police officers, living in a division containing areas of high and low ethnic concentrations, said:
"If I saw a black man walking through Wimbledon High Street I would definitely stop him. 'Course, down here it's a common sight, so there's no point".
I hope that the code of practice will lay upon police officers the most stringent duties so far as these biased criteria for stopping people are concerned.
The second matter concerns the recording of the information which will be asked of the people who are to be stopped and searched, in pursuance of the powers conferred by Clause 1. It really is essential that no more information is extracted from the people who are stopped and searched and on whom nothing is found than is necessary for the proper discharge of police duties. I have in front of me a Metropolitan Police draft form which is described as being Form 124B, and is headed "Search Record". I understand it to be the type of form which it is proposed will be used to record the details of people who are stopped and searched. I note that it has only a line and a half of small space on which to record the grounds for the search. I note also that it requires the officer to record the date and place of birth of the person who is stopped in the street for the purposes of a search. If someone is stopped and searched and is innocent, he should be allowed to go on his way. In my submission it is not right that the date and place of his birth should be demanded by the police officer. The only purpose that I can think of for this being down on the form as being something which should be recorded is so that the facts of the stop and search can be recorded against any entry that might be made of that individual in the police computer, since the date of birth is an essential marking point to ascertain whether someone is on the police computer and, if he is not, he can be put on it. It seems to me that if that is being recorded, it is so that people who are innocent, but who are being stopped and searched, whether or not anything is found on them, should have that fact recorded and logged against them on the police computer. I hope that the code of practice will ensure that that practice, if it is contemplated, will not be carried out.
Lord Hutchinson of Lullington: I should like to support the suggestion that there should be a code of practice, and I welcome the Minister's amendment, but I would agree with the noble Lord, Lord Mishcon, that his amendment really fulfils the purpose much better than does the Government's amendment. This code of practice is perhaps as crucial as anything in the Bill. I am quite sure that the Minister is aware—in fact he has said so—that hitherto the powers of stop and search have been misused. In saying that in the last debate we had in Committee, the noble Lord said that if there is a defect, it does not lie in the definition in subsection (3). It will be remembered that the noble Lord, Lord Hooson, and myself put down an amendment to try to deal with the misuse by, first of all, limiting the powers of stop and search to an officer in uniform—that amendment has gone through—and, secondly, requiring the reasons for the suspicion to arise out of the circumstances of the stop itself. The noble Lord said that the defect did not lie in the definition because there must be some concrete basis for the police officer's beliefs relating to the individual

11
concerned. That, if I may say so, is the essence of the whole of the guidance which is to be given in this code of practice.
I should like to ask the Minister now, for the third time, the same question which hitherto he has not been able to answer: is it the view of the Government that if a police officer knows that an individual has a conviction of some kind for a criminal offence, that knowledge alone would found a reasonable suspicion? Both Ministers in another place during Committee said that that would be so. It is because of that that we feel the amendment we have put down, which now could find its sense in the code, is so crucial. As the Minister said, there must be some concrete basis for the officer's belief relating to the individual. By that does he mean that it will be open to the police to stop anybody on the street simply and solely because that person has some form of criminal record?
If that is not so, I ask the Minister to make it abundantly clear in the code that that does not found a reasonable suspicion? It is that, to which one can add the appearance of the person, the company he keeps, his proclivity (such as being a homosexual) and so on, that have given rise to all the worries and the hassle that this power has brought with it. I ask the Minister whether he can reply to that question and, whatever his answer, I hope that it will be in the sense that I have indicated—that he will make it abundantly clear in the code when it is drafted.
Will he also make it clear that when there is a stop of this kind the person stopped should be cautioned? It is just as important that he should be cautioned at that stage as when he reaches the police station, and as when he is arrested, which is now the law. The Government have introduced into the criminal law a completely new concept, that of detention, which has never before been recognised in the criminal law. There is now something called "detention", which is different from arrest, and the law at present is that if someone is arrested, he must be cautioned; that is, told of his right to keep silent. I would suggest that in the code it is equally crucial that the person should be cautioned when stopped because, for instance, it may be suggested that he has stolen goods in his pocket. What he says in relation to those stolen goods may be of crucial importance, and he should be warned of his rights at that stage.
Lord Inglewood: If it is still in order to address Amendment No. 28, I hope that I may do so very briefly and ask the Minister whether he can tell us more about the shape, form and length of these codes which will be laid before us soon, I believe, in draft. It is possible that they may be very short. They must be long enough, or they are not going to serve their purpose. On the other hand, if they are made too long they will not be read and learned and understood in the same way. In fact, if they are too long they will be self-defeating; and I think that that could easily happen. I am not sure how many of these codes are already in view. We have been discussing three of them under Amendment No. 28, and I think that there are more to come.
It may be of interest to your Lordships that I always try to compare police procedure in another country
12
with that in this country. Not so long ago, at the beginning of this year, an extremely intelligent and able German police officer who understands English as well as we do asked if I could send him not just a copy of the Bill but also of the amendments when it came to Committee stage. The opinion he expressed to me was that their men, who are trained over at least two years before they come out and do duty outside, would take about two years before they understood this Bill which we are now considering. I should like to think that when the Minister goes through this question of the codes he will give us his idea so that in due course we can discuss exactly where the golden mean may lie.
Baroness Macleod of Borve: It seems from the speeches we have heard already that both sides of the Committee are as aware as I am that this code of practice is vitally important, not only for the police but certainly for the younger people in society. They must know where they stand as well as the police knowing where they stand. It will breed confidence in the young people, about whom we are worried today. The noble Lord, Lord Gifford, made an allusion to a form. It seems to me that his idea that there should be one form for one lot of people and another form, asking for details of birth and address, for another lot of people is not really a practical idea. With respect, it seems to me that everybody should have the same form and that every police officer should have the same form to fill in. But I agree also that the code of practice, as such, must be as concise as it is possible for it to be.
Lord Renton: Although I have a great deal of sympathy with what has been said in favour of codes of practice dealing with these matters, I am somewhat surprised that we are dealing with this at this stage. Therefore, I assume that Amendment No. 28 is really a probing amendment. Your Lordships have agreed that Amendment No. 156, which is a specific amendment to the relevant clause, Clause No. 63, dealing with codes of practice, can be referred to now. But I would very much hope and expect that my noble friend on the Front Bench will say that these matters should be dealt with in a code under Clause 63, and not separately and at this early part of the Bill. As I am referring to Clause 63, may I humbly give notice that when we come to that clause I shall be suggesting that there should be a code covering the interrogation, arrest and treatment in the hands of the police of those suffering from mental handicap and mental illness.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): It may be convenient if I speak at the same time to Amendment No. 156. Several noble Lords have already referred to it. Amendment No. 156 has been tabled by my noble friend, and we shall come to it in due course. Both amendments serve the same purpose: to include in the Bill a requirement that the Home Secretary should issue a code of practice governing the use of powers to stop and search. My right honourable friend the Minister of State undertook to consider the case for such code following a suggestion made during Report in another place.
Having done so, both we and the Association of Chief Police Officers, which we have consulted on this suggestion, agree that provision for a code is desirable,

13
and we are grateful to those who have made this helpful and constructive proposal. A code will provide an opportunity to supplement the already detailed safeguards contained in the Bill and to provide guidance about the exercise of powers which, while necessary, must be exercised responsibly and with care if community relations are not to suffer. My noble friend Lord Elton undertook on the first Committee day that we would push forward as fast as possible with work on the code. I can now tell your Lordships that we shall publish a first draft of this code of practice before the Report stage in your Lordships' House, and copies will be available from the Printed Paper Office.
The draft will include, among other things, a guide to the police about the requirement of reasonable grounds for suspicion as a pre-condition for the exercise of these powers. This was in the mind of one noble Lord who spoke. It was, I think, accepted by your Lordships on the first day of Committee that the reasonable suspicion test was a key safeguard but that it was not susceptible to precise definition; but, as it was not susceptible to precise definition, great care had to be taken to ensure that it was not devalued in practice. We shall be sending copies of this draft code to the wide range of bodies which have commented on drafts of the other codes of practice for which the Bill provides. I should like to take this opportunity to stress that the stop-and-search draft is very much a first draft, and that we shall welcome constructive criticisms and suggestions from any quarter.
Amendment No. 156, standing in the name of my noble friend, has exactly the same effect as the new clause proposed by the noble and learned Lord, Lord Elwyn-Jones, and the others who have attached their names to this amendment. I hope that the noble and learned Lord will agree that the matter can be dealt with in Clause 63 and that a new clause is therefore not necessary.
The noble Lord, Lord Mishcon, in his opening remarks, referred particularly to the powers of search referred to in our amendment—that is, our Amendment No. 156—and I can confirm that these include the power to detain for the purposes of a search; and the code of practice will, therefore, as I said just now, cover that point.
Lord Mishcon: Before the noble Lord proceeds to embellish that remark, could I perhaps help him, I hope, by saying that it was not my point that the code might cover other things. It was my point that the statute must lay down what the code should or should not contain. I am sure that the noble Lord the Minister will bear in mind that there is also the power to issue new codes, and therefore the fact that a current code may, although it is not in the Act, cover something, an amended code may not do so. Therefore, it is necessary to be precise in the Bill.
Lord Trefgarne: I know the noble Lord has some anxieties on this matter. I was going to draw his attention to one of the three codes which have already been published in draft—I do not think the noble Lord has given full weight to that fact—and that is the code of practice for the searching of premises and seizure of property, which is another matter to which he referred later in his remarks. But our amendment does indeed
14
cover the seizure of property, and the noble Lord did express some anxiety on that point when he was speaking just now.
In the course of his remarks, the noble Lord, Lord Gifford, referred to the question of the date of birth being entered on the form when suspects were stopped for search under this provision. The noble Lord will be reassured to know that suspects are not required to give their date or place of birth when questioned under these provisions. The question may indeed be asked but the suspects are not required to give that information. I am not sure whether or not the noble Lord was aware of that point.
Lord Gifford: I intervene to say and to put on record that I am not reassured. My hope is that when the code is being considered the question will not be asked—certainly as a matter of routine—because it is the asking of the question which is offensive. Most people will not know that they are not required to answer it.
Lord Trefgarne: I hear what the noble Lord says. Nonetheless it is the case that suspects are not required to give this information, but I will take note of the observation of the noble Lord that perhaps that fact may not be immediately known to those who are stopped under these provisions.
But if I may revert to the remarks of the noble Lord, Lord Mishcon, I should add that the power to search does indeed include the power to detain, which is included in the Bill, and therefore the code must cover that particular aspect of the matter to which the noble Lord referred just now.
The noble Lord, Lord Hutchinson, asked me specifically whether a previous record alone would suffice as a ground for suspicion in this case. I can tell the noble Lord that a previous record alone cannot suffice, and the draft code will deal with this point.
The noble Lord, Lord Hutchinson, also suggested that we were providing some sort of novelty by means of this provision, but there has long been a power to detain short of arrest—for example, the power to stop and search under the Misuse of Drugs Act 1971—so the proposition that the power is a novel one is not, I think, quite correct.
Lord Inglewood: Will my noble friend make one simple matter clear? What does a police constable do with a man whom he is about to detain? What is the difference between that and arresting him? Where does the police constable put him if he is responsible for a man who is detained?
Lord Trefgarne: These are just the sort of matters that will be covered by the code of practice to which I have referred and which will be brought before your Lordships in due course. But I should have thought that it was fairly obvious that a suspect who was detained in this way would then be searched and only following the search would the constable decide what was the right way to proceed thereafter.
Lord Molloy: Would the suspect be allowed to protest and say that he did not want to be searched because he had not been accused of anything whatsoever?
Lord Trefgarne: No, my Lords. The purpose of this provision is of course to give the police constable the power to detain and to search, which is exactly the issue that we are discussing at this moment.
But, if I may revert again to the remarks of the noble Lord, Lord Hutchinson, when I said that this was not a novel power, it is not the present intention to require cautioning over and above what is included in Section 11 of the draft questioning code, which we believe to be sufficient for all purposes.
I hope that in the light of these explanations the noble Lord, Lord Mishcon, will not wish to press his amendment. I do believe that the Government have brought forward a proper response to the concern that has been expressed, and that response is contained in Amendment No. 156, to which we shall come in due course.
Lord Mishcon: I am sure that the noble Lord the Minister knows that I have the greatest respect for him and therefore if I say that the reply is rather woolly, he will not take that as a personal affront at all because it is not meant to be. But we are dealing with a very important matter and I am afraid that the noble Lord the Minister has not addressed his mind to what may be very imperfect observations that I have made, but the noble Lord has just not directed his mind to them.
As I understood the Minister, the code of practice is intended to cover Parts I, II and III of the Bill. Our amendment says that. The noble Lord the Minister says, "There is no difference at all between that, really; do look at our Amendment No. 156. We will cover all that in the code." In Amendment No. 156, instead of saying with great simplicity and clarity that the codes will cover Parts I, II and III, matters are singled out from Parts I, II and III. There is no point in the noble Lord, the Minister, opening his comments by saying, "Of course we cover stop and search". I ask him to stop and search for one moment his own amendment and he will find that there is no reference at all to stop—only to search. There is a reference to detention but not arrest. There is a reference to seizure of property in premises but not to entry into premises. There is also a question here of the whole of this matter being answered by the Minister by saying, "Wait until you see the code of practice and you will find that everything is in it, even though Amendment No. 156 does not say so." I have two points to make in answer to that and I shall make them very briefly.
First, statute ought to say quite clearly what codes of practice should cover. One should not just leave it to the fact that the code of practice might. Secondly, a code of practice may be before your Lordships next week or in a fortnight's time. The Secretary of State, whoever he may be in the future, has the right to prepare new codes of practice. It is perfectly correct that they will have to come before both Houses of Parliament but there will not be the possibility, as the Committee knows, to amend them when they come before Parliament. There will be only the power either to throw them out or to accept them. When the next set of codes do come, instead of our being bound to see the provisions in that code covering Parts I, II and III, we shall not be in that position because Amendment No. 156 does not say so. If the codes do not include these vital items in Parts I, II and III, Parliament will
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have no power at all except to throw out the whole code of practice.
Lord Foot: Perhaps I may interrupt the noble Lord, Lord Mishcon, for a moment, because the Committee may be under a misunderstanding. The noble Lord has referred constantly to "Parts I, II and III", when I think he means Sections 1, 2 and 3.
Lord Mishcon: If Members will turn to the first three pages of the Police and Criminal Evidence Bill, they will see "Part I—Powers to Stop and Search"; "Part II—Powers of Entry, Search and Seizure"; and "Part III—Arrest". So what I was trying to do was to follow the nomenclature of the Bill itself. I hope that the noble Lord will not think that I have acted incorrectly or misleadingly in so doing.
Lord Foot: No, my Lords, but I am looking at the noble Lord's own amendment, in which he refers to "sections 1, 2 and 3". That is what I thought he was referring to in his remarks to the Minister.
Lord Mishcon: I think I am right in saying that by the time the Bill passes, it will in fact be "sections 1, 2 and 3", and it is only when the Bill is before Parliament that it becomes Parts I, II and III. So I am trying—
Several noble Lords: No.
Lord Mishcon: Is that wrong? My Lords, not for the first time I have dealt incorrectly with Parliamentary procedure and possibly it is a question of not having had the benefit, as other noble Lords have had, of sitting in another place. I have learnt my procedure in this House at very courteous hands and I apologise to the Committee if I have said something wrong on procedure. I was prompted to say that and obviously it is not accurate. All it really means is that it would have been better had this amendment said "Parts I, II and III", instead of "sections 1, 2 and 3".
Several noble Lords: No.
Lord Foot: Will the noble Lord understand that I am trying to help him? I am not being critical of him in any way. If he will look at his own amendment he will see that it refers to "sections 1, 2 and 3". Those are the present Clauses 1, 2 and 3. The effect of the noble Lord's amendment, as I understand it—and I entirely approve of it—is that the code of practice will be required to cover all the matters which are referred to in the present Clauses 1, 2 and 3. I entirely support what the noble Lord is saying about that but I think that in referring to Parts I, II and III he must have been bewildering the Committee because the Bill as a whole is divided into parts, and he cannot be referring to Parts I, II and III in this particular connection.
Lord Donaldson of Kingsbridge: With respect, I think he is; I think he is referring to Clauses 1 to 7, 8 to 16 and 17 to 21.
Lord Mishcon: In endeavouring to persuade the Committee that the noble Lord the Minister is confusing the Committee, in the course of those

17
remarks I have possibly confused your Lordships, for which I apologise. It is my intention absolutely definitely to be covering Parts I, II and III and, if my amendment is wrongly worded in calling parts "sections", I apologise to your Lordships. However, it is my firm intention to be covering Parts I, II and III.
Having said that, I hope I have made the point that the noble Lord the Minister has, by extracting from Parts I, II and III various matters which leave out other matters in Parts I, II and III, obviously put before your Lordships an amendment which, in my submission, is inferior to the amendment before your Lordships which I would ask you to consider as referring to Parts I, II and III.
Lord Trefgarne: I, of course, was replying to the amendment as I saw it on the Marshalled List, but I do believe there is a misapprehension in the mind of the noble Lord, and I confess that it may be that I have not sufficiently clearly explained the difficulties or, rather, the misapprehension in the mind of the noble Lord on this matter. I do firmly believe, for example, that it really is inconceivable to construct a power of search which does not include a power to detain, since nobody can search a person, or a vehicle for that matter, without stopping it first. Guidance about searching, therefore, has to include guidance about detaining in the first instance: in other words, I believe that Amendment No. 156, which we are discussing now, does confer adequate powers to meet the anxieties of the noble Lord.
Incidentally, he did draw attention to what he thought was a shortcoming in Amendment No. 156 about the searching of premises and the seizure of property, and before you can search premises you have of course to enter them. I can assure the noble Lord that of course this matter is very much part of the code of practice which I imagine the noble Lord will have already seen. I believe there is nothing between the noble Lord and myself on this matter, and therefore I hope that he will see fit to withdraw his amendment and to agree to ours in due course.
Lord Mishcon: It does appear that there is a certain amount of meeting of the ways here. The last thing in the world that I want to do, in endeavouring to meet halfway down the road and secure a betterment of the Bill, is to argue further at this stage. I think it may be a good idea if the noble Lord the Minister, with his customary diligence and courtesy, would look at what I have been trying to say. I will look at what he has been trying to say, and I hope that between now and Report stage it will be possible to bring before your Lordships something which is truly acceptable. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Road checks]:
3.35 p.m.
Lord Gifford Lord Gifford moved Amendment No. 29:
Page 6, line 18, leave out paragraph (b).
The noble Lord said: We now pass to Clause 4 and away from stops and searches to a very important
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clause of the Bill which is entitled "Road checks". It is important, if for no other reason than that the power given by this Bill to allow police officers in certain circumstances to stop either all vehicles or vehicles selected by some criterion is likely to affect, albeit sometimes in quite small ways, more citizens than perhaps any other power given by this Bill.
The existing law on the powers of the police to institute road blocks or road checks, as they are called in this Bill, is very unclear. It is a murky area of the law which I hope the noble Lord the Minister will be able to help us to clarify. We have at the moment road blocks instituted over large sections of our country in connection with the miners' dispute. I was myself in Nottinghamshire last week and saw on every road leading towards any colliery a group of police officers stationed there in order to stop those whom they believed to be going to the colliery for the purposes of picketing. I heard of case after case of people prevented from going, not to picket, but about their lawful business as a result of these road blocks. I mention this not to raise that controversy but in order to draw your Lordships' attention to the difficulties arising in the existing law, because it would be my contention that there is not a power at the moment to set up road blocks at will around the country, and I certainly welcome any clause in this Bill which has the effect of clarifying the law and tying the circumstances down to identifiable criteria which we can all understand and accept.
The doubts arise in other fields as well. I have before me a letter written by the Metropolitan Police in answer to complaints raised by the National Council for Civil Liberties, who themselves had received complaints from citizens about road blocks in North West London, and I quote the answer of the commander:
"Authority to set up the road blocks was given by the divisional chief superintendent in order to increase public awareness of police presence in an area which was experiencing a high level of vehicle thefts."
It appears therefore that the police believe they have the power to set up road blocks in a variety of circumstances which certainly many of us had no idea were legal at all and which I suggest are in fact not legal.
In those circumstances I turn to the specific provisions of the Bill, because it is my submission that that even the attempt to tie down the power to set up road blocks to specific circumstances has gone far too wide. If we look at Clause 4 we see that there are four separate types of people who can be the targets of a road check under the Bill. The first one is a person who has committed an offence, and later we learn that it must be a serious, arrestable offence. I do not seek to interfere with that power. We all know how valuable it is in cases where an offender such as Sutcliffe, the rapist, is at large in an area and everyone would wish road blocks to be set up in order to find him.
Much the same criteria apply to Clause 4(1)(d),
"a person who is unlawfully at large"—
an escaped prisoner—and I make no proposal to delete that type of person. My Amendment No. 29 addresses itself to paragraph (b):
"a person who is a witness to such an offence".

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My Amendment No. 30, which it might be convenient to take at the same time, addresses itself to paragraph (c)
"a person intending to commit such an offence".
Amendment No. 30: Page 6, line 19, leave out paragraph (c).
Amendments Nos. 33 and 34 are consequential upon those two amendments and I shall take them in turn.
Amendment No. 33: Page 6, line 37, leave out paragraph (b).
Amendment No. 34: Page 6, line 40, leave out paragraph (c).
So far as a witness is concerned, I find myself very puzzled. The police do not have the power by force to stop a citizen in the street to try to find out whether he has been a witness to an offence. They have the power to ask a question, and they have the power to ask for the co-operation of the public, which is how the public should be addressed. But what this Bill is seeking to introduce is a power forcibly to stop vehicles, in order to try to find a witness to an offence. It has to be a serious arrestable offence, but that is the only limit which is placed in subsection (4)(b), and that goes too far.
By all means let members of the public be invited to co-operate with the police; by all means let the numbers of passing cars which might have witnesses in them be taken and the owners in due course interviewed. But the power to interfere with traffic and to stop people going about their lawful business should be circumscribed and not made so wide as to include a search for vehicles.
The next paragraph which I seek to delete, paragraph (c)
"a person intending to commit such an offence",
worries me even more. It is not a crime to intend to commit a crime. Attempted crime is an offence. Conspiracies when groups of people conspire together to commit a crime are an offence. But to have in your mind the intention to commit a crime is not a crime, and for the police to have powers to set up road blocks in order to find people who are intending to commit an offence takes us dangerously near to the thought-crime of George Orwell, when to have crime in your mind is to commit a crime and to make one the object of police attention—
Lord Molloy: There was a time in Nazi Germany when police were instructed in a similar way to look at the features of a person. If he had Semitic features he could be arrested.
Lord Gifford: I am grateful to my noble friend, and when we come to an amendment that I intend to move, which deals with the police being able to stop people selected by any criterion at all, I will take up his point. When we find out what circumstances the Bill envisages for the exercise of this power, our confusion and worry grows, because in Clause 4(4)(c)(ii), at the top of page 7 of the Bill, we see that in order to exercise power to set up road blocks to find people intending to commit an offence, the criterion has to be
"that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence"—
that is to say, a serious arrestable offence—
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"is likely to be committed in that area during the period during which the road check would be authorised to continue".
We have already seen in our consideration of Clause 109 how wide and lax the definition of "a serious arrestable offence" is. It seems to me that under this Bill as it stands road blocks could be instituted all around our cities, week after week, in order to find people who are intending to commit crimes, if "having regard to a pattern of crime" is the necessary criterion. It is an extraordinary criterion. If there is a spate of burglaries in Hampstead, of drug dealings in Notting Hill or of any other crimes of a type which occur daily or weekly in our cities, any officer in a case of urgency can set up a road block.
We need to exercise our powers of limiting this Bill in relation to this clause. Of course, there will be an element of discretion. Of course, the number of road checks set up will be recorded and the reasons for them given, and that is to be welcomed. But let us try to deal with the situation in circumstances which we all agree are proper, and those are the circumstances in Clause (4)(1)(a) and Clause (4)(1)(b), I submit that the others are not necessary. I beg to move.
Lord Denning: I hope that your Lordships will not accept these amendments. As regards paragraph (c),
"a person intending to commit such an offence",
let us take the case where motorists start from the metropolis and intend to break into a house in Hampshire. The attempt to commit the crime does not start when they leave London. The attempt starts, and the crime starts, only when they enter the front gate or break the front door of the house in Hampshire. Therefore it is essential that there should be power to put on a road check if need be so as to stop those people who are intending to leave London on their escapade. That is the difference in the law between an attempt to commit a crime and the preparation for it, which is well known.
As regards paragraph (b),
"a person who is a witness to such an offence",
quite often you might have a criminal who is escaping or who has a colleague who goes off from the crime. There is no evidence to implicate him in it, but he is certainly a witness to it, and it must be most valuable in finding the miscreants if you are able to have a road check to stop a person who is a witness to such an offence. He will probably not want to be found out and all you can be sure of is that he is a witness, but that should be sufficient. So I hope that your Lordships will not accept these amendments.
Lord Wigoder: I see the force of the argument put forward by the noble and learned Lord, Lord Denning, and I certainly would not want to do anything to weaken the protection to which owners of houses in Hampshire are entitled. At the same time, there is something in the point made by the noble Lord, Lord Gifford, that the wording,
"a person intending to commit such an offence"
is extraordinarily loose and may simply cover a person with a mental element of the intention of committing an offence at some indeterminate time in the future.
I wonder whether the point of both the noble Lord, Lord Gifford, and the noble and learned Lord, Lord

21
Denning, might be met if the noble and learned Lord the Minister would consider at a future stage some alteration to the wording, so that the Bill read either,
"a person about to commit an offence",
or,
"a person on his way to commit an offence".
Would that meet the point that the Minister is seeking to make, without giving rise to the objection raised by the noble Lord, Lord Gifford?
Baroness Macleod of Borve: I am sure we are all aware that up to now road checks have been completely unrestricted. This Bill is trying to make them more restricted, so that they cause less nuisance to the public at large. But we have to make it possible for the police to apprehend criminals, whether they are intending to commit a crime or whether they have already done so. My reading of the Bill is that if a robbery has been committed in a district, the witness who has taken part in the robbery must be able to be apprehended in a road check, if and when one is put up with the authority of the police. These amendments are very important, because the police must have flexibility to be able to apprehend anybody who they think is in breach of the law.
3.50 p.m.
Lord Harris of Greenwich: It may well be that the suggestion made by my noble friend Lord Wigoder, that Clause 4(1)(c) could be improved at the Report stage is valid, but for the moment I should prefer to speak simply about Clause 4(1)(b) which is concerned with the power given to the police to stop a person who might be a witness to a serious arrestable offence. It seems to me that it is desirable to maintain some form of provision of this kind in the Bill, for a series of reasons, some of which have been given. The noble and learned Lord, Lord Denning, touched on some of those reasons.
Perhaps I may give another illustration which may have some validity. Let us assume that a child has been murdered and buried in a wood near a highway in a rural area. Tragically, there are, as we know, many such cases each year. If the police decide that a motorist who regularly passes that spot at seven o'clock in the evening or thereabouts could have some information which would be of help to them, it does not seem to me to be unreasonable that the police should have such a power. It would be very unfortunate if we were to delete it.
Lord Plant: I hope that these amendments will not be carried. They would deprive the police of a facility to trace witnesses. They would seriously hamper the investigative process. So far as crime is concerned, areas throw up certain patterns which need to be checked by way of road checks. How was the Yorkshire ripper caught? If these amendments had been in operation, he might never have been caught. We have to think very seriously before we take away from the police an investigative procedure which is very much in the interests of the community.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): The noble Lord, Lord Plant, has
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referred to an amendment dealing with the pattern of crime. It is not among the group referred to by the noble Lord, Lord Gifford. On the other hand, it is in the group of amendments which it has been agreed by the usual channels should be taken now. I wonder whether the noble Lords opposite would like at this point to give their views on that matter.
Lord Mishcon: If we are invited to give our view on the pattern of crime, it will mean referring, will it not—I ask the noble Lord the Minister to help me on this point—to Amendments Nos. 35 and 36?
Lord Elton: Yes.
Lord Mishcon: If it is convenient to the Committee that Amendments Nos. 35 and 36 should be dealt with now, I shall do so with pleasure and, I hope, with brevity.
Amendment No. 35: Page 7, line 1, leave out from ("that") to ("the") in line 3.
Amendment No. 36: Page 7, line 4, leave out ("that area") and insert ("the area in which vehicles would be stopped if the road check was authorised").
I wonder whether your Lordships would be good enough to look at the top of page 7 of the Bill, where the most extraordinary and, your Lordships may think, extremely harmful words appear. They are:
"that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence is likely to be committed in that area during the period during which the road check would be authorised to continue".
Are we to accept crime areas—areas where the pattern is such that rights are given which do not exist in other areas? If I may turn to the noble and learned Lord, Lord Denning, I would ask, is Hampshire to be designated as an area where a pattern of crime exists? I hope not, because I have the privilege of sharing that county with the noble and learned Lord and of loving it very much indeed.
I dare not treat this matter lightly because many of your Lordships—I look in particular at those who occupy with honour the Bench of Bishops in this House—are terribly concerned about the way in which relationships are being built up or destroyed in various areas. This would mean talking in terms of areas which are going to receive special treatment because there is a pattern of crime in those areas; therefore rights are going to be given.
When we on these Benches saw these words we decided, after a reaction which I hope your Lordships can imagine and which therefore I do not have to describe, that the best way to deal with the matter was to delete them and to improve them with a constructive amendment. The constructive amendment appears as Amendments Nos. 35 and 36. Therefore the words would be that,
"the offence is likely to be committed in the area in which vehicles would be stopped if the road check was authorised during the period during which the road check would be authorised to continue".
In other words, we are saying that it is likely, from all the facts which the police know, that an offence will be committed in that area. There is no question of past pattern, future pattern, or present pattern. It is just that it is likely that an offence will be committed in that area. Therefore the power is given in those

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circumstances. The suggested wording in these amendments is inoffensive. The wording which appears in the Bill as drafted is, to use an understatement, offensive.
Lord Molloy: I support both of the amendments of my noble friend Lord Gifford. When passing legislation I believe it to be fundamental that we should make certain that, so far as is right and proper, full assistance is provided to the police of our country in carrying out their difficult task. I do not believe that they can carry out that task on the banal assumptions of the noble and learned Lord, Lord Denning, that all criminals emanate from London and that all the victims are in Hampshire. That to me is a criminal absurdity. Those of us who have experience of other lands know that eminent judges have given eminent reasons which have then been twisted by well meaning people. Therefore one ends up with something which can be encapsulated in one word: racialism. You stop a person who might have witnessed something because he is black.
Noble Lords: No.
Lord Molloy: That is what some people are saying. It is one of the reasons why a thorough investigation was conducted by one of our noble and learned friends in this House. We should ensure that in no way do we detract from the confidence which ordinary people have in our police. We should always bear that fundamental point in mind.
Lord Elton: With that sentiment I do not for a moment disagree, but as to the question of racialism, the noble Lord is perhaps thinking of another amendment, not this one. So I am sure he will forgive me if I revert to the main theme which we have been discussing and pick up the point which my noble friend Lady Macleod of Borve so aptly made. I begin by saying that your Lordships will of course need to remember, in describing the appalling consequences that will flow from giving these liberal and unrestrained powers to the police, that not one of them is new, that everything that is in the Bill serves to reduce the powers of the police below what they now are. The power to stop vehicles is not in the—
Lord Molloy: The noble Lord the Minister asked me to give way, and I did so immediately. I had not finished what I wanted to say.
Lord Elton: I apologise for disappointing both the noble Lord and the Committee over what he has to say.
Lord Molloy: Knowing the noble Lord, I am sure that is true; but he rose in the middle of what I was saying, and because I do not believe in the practice of going on for another minute and then giving way I thought it right and proper to give way immediately. That is what I did. My point is that if one reads the report of the noble and learned Lord, Lord Scarman, one sees that there is evidence on this matter beyond all peradvanture. Let me take the case of the little boy of 16 who was arrested because he might have
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witnessed something, because he was black and because his friends were black. I find that disturbing. We must not do anything that will detract from the confidence that ordinary people have in our police force. If this Bill became an Act, certain things could happen which would be injurious to the general public at large and detract from the good name of the police. It is in that respect that I support the arguments submitted by my noble friend Lord Gifford and the amendments which he moved so ably.
Lord Elystan-Morgan: Speaking for my own part, and I trust for those on these Benches, it would on the face of it appear that there was considerable force in the comments of the noble Lord, Lord Gifford, in relation to both Clause 4(1)(b)—that is, a person who is a potential witness—and Clause 4(1)(c); that is, a person intending to commit such an offence. If I may deal first with the question of the witness, it would appear to be the case that the police already have the power sought, under Section 159 of the Road Traffic Act 1972. That is a very wide power. It has never been defined, although the noble and learned Lord, Lord Denning, in 1964 in the case of Waterfield pointed out certain limitations to its use. But so far as I know—and I see the noble and learned Lord nodding his head in agreement—it would appear to be the case that there has never been any definition of that section's boundaries, and that they are certainly wide enough to cover the power of stopping a vehicle to establish whether there is a person who might be a witness to the type of offence referred to in Clause 4.
The second matter raised by my noble friend Lord Gifford is better founded in logic, in that he must be right when he says that there is no offence in the whole of our criminal law of a person intending to commit a criminal offence. One of course accepts readily what the noble and learned Lord, Lord Denning, says; that an attempt to commit an offence, which is of itself a criminal offence, can occur before the very last act in the chain occurs, provided that it is sufficiently proximate to the ultimate intention of the miscreant. On the other hand, the Minister may take the view—and this is really my purpose in speaking at this stage—that it might be right to place some limit on the powers of the police here, in that to allow to the police the power to stop vehicles in order to establish whether there is a person who has the intention to commit a criminal offence might be going too far.
I wonder whether some form of wording which would make Clause 4(1)(c) read as follows,
"a person setting about to commmit such an offence",
might be nearer the mark. I do not pretend that that wording is perfect but the Minister may take the view that it leads properly in the right direction.
Finally, since I am on my feet, I will make one point in relation to Amendments Nos. 35 and 36 to which my noble friend Lord Mishcon has spoken. Does the Minister accept that in certain circumstances this qualification, which is a second limb to Clause 4(4)(c) in so far as paragraph (c)(i) is concerned may be too restrictive? In respect of a person who intends to commit an offence, the constable must have reasonable grounds for believing, first,
"that the offence would be a serious arrestable offence"

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and secondly, in sub-paragraph (ii),
"that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence is likely to be committed in that area during the period during which the road check would be authorised to continue".
With the greatest of respect, I venture to suggest to the Minister that that may be unduly restrictive of the powers of the police in this particular regard.
Let me give an instance. Interpol, by information that has come to them suddenly, may pass on vital facts to the police operating in the area of Hampshire—since that county has already been chosen as an example. It may be a terrorist-type offence. Nobody would be able to say that it is in any way at all the type of offence that conforms with a pattern in the area. But as I understand it, the police would not be able to invoke the powers of Clause 4 in that regard. I therefore ask rhetorically the question: is the second limb of the pattern of events either necessary or desirable in this connection?
4.5 p.m.
Baroness Phillips: I find myself listening to this debate with an increasing air of astonishment. I wonder what kind of a world some of your Lordships live in. I am all for a code of practice for enforcement officers. I only wish that we could have a code of practice for the criminals; it would make life a great deal easier for many of us. I understand that one of the duties of our police force is to prevent crime as well as to detect crime and arrest crime. I will give your Lordships an example from my own area just a few nights ago.
A car which had been patrolling up and down the streets in the small hours was stopped by the police—not because the vehicle in question was obviously breaking any law but because the police were curious. When the car was stopped, the police found that it contained, not surprisingly, a great deal of stolen property. I only know of this because my next door neighbour's property was restored to him as a result. The police must have been acting on suspicion.
If we are to prevent crime, there is no other way than by acting with speed It is easy for us to sit here in this calm and detached atmosphere and discuss these matters, and it is easy for noble Lords who are lawyers and who are skilled in the art of changing words. As a magistrate, I have listened many times to pleas in court. I thought that I knew what crime was when I started hearing the case, but by the time a convincing barrister had finished, I was not quite so certain—which was obviously his intention.
But here we are making laws, We are making laws to protect innocent citizens. That is what we are making laws for. We are making laws in order that our enforcement officers may carry out their duties. It ill-behoves us to place any heavier restrictions upon the police. There is very little evidence that police powers are abused. The fact that any such abuses make news means that they occur only very rarely. I give this instance because we must be very careful before placing any restrictions upon our police force.
Lord Elton: I am most obliged to the noble Baroness—
Lord Inglewood: May I speak in support of the noble Baroness—particularly in respect of one point she made concerning the speed at which criminals move. If we are to have road checks, they must be set up instantly. It is not a question of a pattern that one can set out on paper. We must use men of experience who can move quickly and who can recognise offenders' strange ways and suspicious characters. We would not recognise them, but practised police officers recognise strange ways and characters, and can then check suspicious vehicles at the side of the road. Many criminals are caught in that way.
When speaking in the House of Commons in about 1829, Sir Robert Peel made that very same point. He observed that criminals were beginning to move around very quickly with the advantage that they had in those days. That goes to show that some truths remain from one age to another. We must be sure that we give our police the freedom to act; not to delay people for any great length of time but to move quickly in making such checks.
Lord Elton: Third time lucky! First, I should like to remind your Lordships of the comment made by the noble Baroness, Lady Phillips; that we are constructing laws for the protection of law-abiding citizens and at the same time trying to see that we do so in a way that does not lead to affront or tension between those citizens and the police. It is our intention to protect the innocent, but not necessarily, I would have thought, to protect the guilty from the operation of the police.
Secondly, I should like to remind the Committee that the power to stop a vehicle rests in Section 159 of the Road Traffic Act and it is entirely at large. Therefore, what we are discussing is not whether we are permitting the police excessive new powers but surely whether we are excessively diminishing the powers the police already have. With that in perspective, I hope, I should like to turn to the amendments proposed by the noble Lord Lord Gifford, which I think are intended to remove entirely the power to set up a road check for the purpose of tracing a witness to a serious arrestable offence or to apprehend a person who intends to commit such an offence.
One of the principles underlying the whole of this Bill is that coercive powers should be used only where it is necessary for them to be used; and then only to the minimum extent that it is necessary for them to be used. I accept that we would expect all responsible members of the public who can provide the police with information about an offence—particularly about a serious arrestable offence—to come forward with it voluntarily, so we must be cautious to compel people to do what is, after all, their plain duty as citizens. It was for this reason that we decided not to accept the recommendation of the Royal Commission that the police should have a power to detain witnesses in the immediate vicinity of a grave incident. Subsection (1)(b) will only permit a road check in order to trace a witness to a serious arrestable offence. Taken together with subsection (1)(a) and (c), it represents a restriction of existing powers. I believe those powers are needed, and particularly this one.
Your Lordships will recall a particularly frightful case last year in which a young boy was sexually assaulted in Brighton. In their attempts to solve this

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crime the police set up road checks, not with any expectation of finding the offenders but simply to try to find witnesses. I, for one, am convinced that they were right to do so. The noble Lord's amendment would make it impossible for them to do the same in future. There are other ways of trying to get witnesses to a serious crime to come forward: notice boards by the roadside saying, "Were you here last Tuesday?", "Can you help?", and things like that. But in certain special circumstances a road check may be the most effective and practical way of finding witnesses. The experience of the police is that, in general, notice boards are not an effective means of communication. Often people do not know that they may be important witnesses simply because without talking to a policeman they may not understand the significance of something they have seen, or, indeed, of something they have noticed not seeing in a particular case.
The second group of amendments tabled by the noble Lord, Lord Gifford, seeks to remove the power to set up a road check in order to discover an intending criminal. The amendments of the noble and learned Lord, Lord Elwyn-Jones, moved by the noble Lord, Lord Mishcon, seek to leave that power intact but to remove its dependence on the existence of an observed pattern of crime suggesting that a serious arrestable offence is likely to be committed. The Royal Commission were quite clear in their report that there should be a power to set up road checks in these circumstances. They noted that the police sometimes find it necessary, where there is a spate of serious crime in a specific area, to mount such checks, and they expressly said that they saw the value of this procedure. They said that they understand and acknowledge the potential value of such a procedure to the police when a clear pattern of serious crime is observable.
The source of the power to set up the road check is, as I have already said, on the statute book already. I think those of us who live, or may live, in areas where there is a clearly detected pattern of crime would not agree with the noble Lord, Lord Mishcon, that it was in some way derogatory to have that recognised. If he was a turkey farmer in an area where turkey farming was common, and it was approaching Christmas, he would be quite clear that turkey rustlers are an amazingly expensive force battening on his trade; and if it was possible to apprehend a turkey rustler who had already lifted several lots of turkeys on his way to another with an empty car, he would welcome it. Of course, there are more serious crimes than turkey rustling. I only give that example, because I believe there are turkey farmers in Hampshire, which is a county which attracted the noble Lord's interest. There will always be outbreaks of serious crime in particular areas. If the affliction of an area by crime makes road checks necessary, then, in our view, they should be possible.
Nonetheless—and I turn to the amendment of the noble Lord, Lord Mishcon—the phrase "pattern of crime" in subsection (4)(c) has come in for a fair amount of criticism in the past few months. As I said, "a clear pattern of serious crime" was the phrase used by the Royal Commission as the basis for their recommendation, and with reason. Let us imagine,
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not turkeys but a series of sexual assaults taking place in a particular area, or a series of robberies at building society branches. The police do not know who is responsible for them, but a pattern is discernible. There are reasonable grounds to suspect that another assault or robbery will take place in accordance with the pattern; and if a road check is established there is a chance that the offender will be found or, indeed, deterred.
On the noble Lord's amendments I should like to clear up one thing. The effect of Clause 4(4)(c)(ii) is to add a second restriction to 4(1)(c) checks. The first restriction is that the expected offence would be "a serious arrestable offence" if it was committed. That is in Clause 4(4)(c)(i). The second, which is the subject of the noble Lord's amendment, is not only that the commission of the offence is likely but that that likelihood arises, as the Royal Commission recommended, from an existing pattern of crime. It is this latter condition which he seeks to remove. Any expectation would do for him, not one based on a pattern of crime. That is in fact a weakening of the restrictive power, and I should like to know if it is what he intends before I further say what I think of his amendment. I think I have made it clear that the others do not commend themselves to us.
Baroness Gaitskell: May I ask the Minister a very short question? What is the matter with us? We seem to be frightening ourselves into fits since the stop and search debate. We are talking about things that we have known about all our lives. We have not been particularly frightened, only frightened occasionally. I do not understand anything that has been said this afternoon about this. It is absolutely incomprehensible. Why are we making such a fuss about this? What has happened to our country that we have to make such a fuss about this?
Lord Elton: May I try to put in a nutshell the answer to the noble Baroness? What has happened is a series of events culminating in the Brixton riots which led us to realise that, although the law was very strong and specific in dealing with crime, it allowed crime to be dealt with in ways which were sometimes counterproductive because they offended the innocent and thereby the public lost confidence in the police in certain areas and the work of the police was made more difficult. One of the areas we are now looking at is the power that the police already have to protect us from serious crimes and other things by means of setting up a road check. The purposes of these amendments bear on the new ground in the Bill. The new ground in the Bill is to restrict the use of those powers which already exist where they are used to find people, not things—whether witnesses, offenders or intending offenders. Noble Lords are anxious to restrict those more than the Government are; that is why we are so excited.
Lord Mishcon: I am most grateful to the noble Lord the Minister for that courteous intervention. May I make one observation before I say something specific in answer to the question that the noble Lord the Minister asked me?
I have said before, and it has been said by my noble and learned friend Lord Elwyn-Jones, that there is no

29
difference between the two Front Benches as to their ends. Both are in favour of law and order and it seems a most curious thing for any reasonable person even to discuss it. The only thing we feel that we must very carefully do—and the noble Lord the Minister said this for his Front Bench and for all his noble friends—is to make absolutely sure that we can keep as near as we can a correct balance between catching the criminal, which all of us want to do, protecting the public, which all of us want to do, and infringing upon the rights of citizens, without doing so where that infringement should not take place. It is against that background, I make it perfectly clear, that all the discussion will take place so far as my noble friends and I are concerned.
To go to the direct question which the Minister put to me, if I may be frank I am not very sure that it is right to take Amendments Nos. 35 and 36 with the amendments very properly raised, as he independently did, by the noble Lord, Lord Gifford. But these arrangements were put before us and we did not demur. Therefore, we are in the position that Amendments Nos. 35 and 36 are now being taken.
I was asked whether in this amendment we were really endeavouring to increase the rights of the road check by the police because we were interfering with the wording of (4)(c)(ii) at the top of page 7. My answer is this. I would prefer that reasonable grounds for thinking that a serious arrestable offence had been committed, or was about to be committed, should stand by itself rather than that the words should occur which do occur at the top of page 7 in paragraph (c)(ii). The Minister was very fair and endeavoured to give examples to the Committee of what might happen at Christmas time in regard to turkeys in certain areas. That is all very well and it sounds very feasible. If the words in this clause had referred to patterns of a specific crime, or of a certain quality or category of crime, I and my noble friends might have stomached it a little better than we do the actual wording of this clause. The actual wording is:
"a pattern of crime in the area".
That means general crime. That means it is a criminal area; that it is a thug area. It is those words—
Lord Elton: Perhaps the noble Lord will allow me to intervene. He referred to a particular category of crime. He will find in subsection (4) that it must be "a serious arrestable offence".
Lord Mishcon: I am sorry, but that makes it even worse. If it is to be "a serious arrestable offence" for it to be "a pattern of crime" in an area, it really means that it is an area where not just trivial offences are being committed but the sort of area where serious arrestable offences are committed. That is the designation and the label of the area. That is the offensive part. My noble friends and I are not trying, in this amendment, to limit the powers of the police. What we are trying to do, in a Bill which is supposed to deal with police powers and criminal evidence, is to stop offensive words occurring in a Bill which will be interpreted by the police, regardless of codes of conduct, as "Well, we have the right to set up road checks in this area for a serious arrestable offence. Everyone knows—even Lord Scarman found there were difficulties in the area of Brixton—that this must
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be the sort of area to which the noble Lord, Lord Elton, was referring in the remarks he made in Committee which we have so carefully studied. It is that sort of interpretation which can be put on it by the police and it is that interpretation that, very properly, can be put upon it by people who live in certain areas. It is on that basis that I find these words objectionable.
Baroness Trumpington: I live in a perfectly respectable part of England, near Margate and Ramsgate. Occasionally I go to Brighton on holiday. I consider there is a definite pattern of serious crime on such days as bank holidays when gangs of youths come down not only to those towns but to the small town of Sandwich which does not have its own police force. These gangs terrorise and commit serious crimes—certainly serious arrestable offences.
Lord Inglewood: I do not believe that efficient, experienced police officers are going to be so impressed by these words in the Bill, whether or not slightly changed. There is something called ways and means which is well-known in certain police circles. If they thought there was some crime which they were by way of detecting they would be after it.
Lord Elton: The noble Lord, Lord Mishcon, questioned the wisdom of grouping these amendments together. It might be helpful if I give now an undertaking to consider very seriously the amendment which he has in this group of amendments. I tried to explain at the conclusion of my last intervention that, in our view, it limits the limitation on the police. I shall not expand on that but we are content to consider it. Perhaps the Committee would now like to return to the noble Lord, Lord Gifford, who I know is anxious to enlighten the Committee with his views on what has transpired in the last 51 minutes.
Lord Gifford: I am anxious to be constructive in this debate which deals with an area of law which is confusing to many of us. Speaking for myself, I am not sure that the confusion about the existing law has been dispersed by what the Minister said. He said that this clause is not so much granting new powers to the police as restricting the unrestricted power which the police now have. I find that difficult to accept in view of the wording of Clause (4)(16) which states:
"Nothing in this section affects the exercise by police officers of any power to stop vehicles for purposes other than those specified in subsection (1) above".
As I understand it, therefore, we are to keep all the powers that the police now have and add to them the powers in Clause (4)(1).
Lord Elton: That is not the case. We are to keep all the powers that the police now have for purposes other than finding people. The noble Lord will see in Clause 4(1) that:
"This section shall have effect in relation to the conduct of road checks"—
they are defined in subsection (2) as the exercise of the power to which I have referred—
"for the purpose of ascertaining whether a vehicle is carrying"—
four classes of people are then given. If the road check is for that purpose it is to be limited by the terms of

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Clause 4. That is the limitation imposed. Previously, both the power to look for people and the power to do other things were all at large. Clause 4 now brings the power to search for certain classes of people within bounds. Therefore, it is a limitation on the power of the police. It does not claim to be a limitation on their power to stop vehicles for other purposes.
Lord Gifford: I am following carefully what the Minister says and I expect he will further enlighten us when we come to the amendment to delete Clause 4(16) and we might find out a little more about the other powers to be preserved intact. However, I still have this confusion. The noble Lord, Lord Elton, said that at the moment there is an unrestricted power to stop vehicles for reasons pursuant to the Road Traffic Act. But I do not understand that to be an untrammelled power to stop any vehicles for any purposes. According to the Royal Commission's statement of the law, paragraph 25, the existing law is:
"By Section 159 of the Road Traffic Act 1952, however, a police constable in uniform may require any person driving a motor vehicle to stop the vehicle, and this is a general power. The constable must be acting in the execution of his duty, that is to say his conduct must be authorised by statute or recognised at common law and not involve any unjustified use of the powers associated with the duty".
It is not right to say that at the moment there is a general, unrestricted power. I gave certain examples in moving the amendment, and I still maintain that the police are not acting within the law. I gave the example of the mining communities today when the police set up a variety of road blocks.
However, I have listened with care to what has been said on the two subsections to which I referred. I think that different considerations apply to each of them. So far as witnesses are concerned, a number of noble Lords have referred to the desirability of asking potential witnesses whether they have noticed something relevant to the commission of a crime. That is not a power that I see giving rise to grave abuse. No doubt people would be pleased, if the power is properly used, and at any rate not excessively, to answer the question if they are stopped. I do not therefore intend to pursue that amendment.
I am far more concerned about Clause 4(1)(c)—
"a person intending to commit … an offence".
The noble Lord, Lord Elton, gave the game away a bit when he said that it is necessary to apprehend people intending to commit an offence. There is no power to apprehend people intending to commit an offence. As I listened to the various noble Lords who gave examples of how they felt that this power would be useful, it seemed to me that all the examples could be taken account of by reference to Clause 4(1)(a), which deals with the apprehension of criminals.
The gang of robbers coming from London to burgle the house in Hampshire—to which the noble and learned Lord, Lord Denning, referred—would have committed the crime of conspiracy. Under Clause 109(5) a conspiracy to commit a serious arrestable offence is itself a serious arrestable offence. The gangs of robbers referred to by the Minister could be the subject of a road check if it was thought that they were going to commit a further offence. Indeed, the very reference to a pattern of crime in an area, which is
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intended to justify this clause, means that we are looking for criminals—people who have committed crimes—and it is not necessary to have a special clause which talks about people intending to commit a crime.
The difficulty with a clause which gives the power to the police to look for people intending to commit a crime is that the police are then allowed to try to go into the motives and the future intentions of people driving around the roads, and then, one asks oneself rhetorically, do what? Since there is no power of arrest, they cannot arrest someone who is intending to commit a crime. One assumes that the only power that the policeman can exercise, if he has stopped somebody who he thinks is intending to commit a crime, is to tell him to go back to where he came from. That is exactly what is happening at the moment in the road blocks in Nottinghamshire. Whether or not they are intending to commit crimes or breaches of the peace, people are being told to go back home.
That leads us to the danger that the passage of traffic along the road of people who are in fact obeying the law but who the police think are intending to commit crimes will be impeded to a degree which is not warranted. Therefore we ask ourselves, is this power necessary? If it can be accommodated either by Clause 4(1)(a), or by some amendment to Clause 4(1)(c) which restricts it, as the noble Lord, Lord Wigoder, suggested, we shall be much more reassured and better off.
I hope that the noble Lord, Lord Elton, in addition to saying that he will examine the definition in Clause 4(4)(c)(ii) of "a pattern of crime", will respond not only to myself but to the noble Lord, Lord Wigoder, and, I think, my noble friend Lord Elystan-Morgan, by looking at this description of,
"a person intending to commit … an offence".
Certainly I would be happy to withdraw the amendment if there is to be another look at this arm of the law and so long as we can keep open—and the Minister will keep open—the question of whether,
"a person intending to commit … an offence",
is to remain without any change at all in this Bill. I do not know whether the noble Lord can help me on that.
4.35 p.m.
Lord Elton: I can help your Lordships to this extent. What the noble Lord has now said seems to boil down to this. He will correct me if I am wrong. It seems to boil down to a belief that, if there is a pattern of crime, the people who are next going to fall into the projected pattern will be the same people who committed the crimes before. What he is really saying, I think, is that there is a power already under Clause 4(1)(a) to catch somebody who has committed an offence, and the assumption is that when the police are after the turkey rustler, it will be the same turkey rustler who took the last lot of turkeys. That may or may not be the case.
The same is equally true—is it not?—of the example which my noble friend gave of the swarm of young people who come down on motor bicycles, etc. to seaside resorts, create mayhem and sometimes commit very serious offences. Whether those individual young people were the same people who came last year, and whether they go to the same place as last year, is very much open to doubt. What the noble Lord

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is saying is that, if the police expect that an event like this is going to take place and do not know that it will be caused by or composed of the same people, they will have simply to watch them go by or stop them for some other reason. But the purpose of this clause is to control the way in which the police stop vehicles to ascertain whether particular classes of people are inside or on them.
Therefore it seems to me a pity that the noble Lord should be prepared to deny the police the powers, which are preventive powers, to stop vehicles where they think serious crime is likely to be committed but they do not know that it has been committed in the past by the same people who are now in the vehicles. I think that that would be a mistake, and I hope that I have persuaded your Lordships of that.
Lord Gifford: Perhaps I am not making myself clear, but the noble Lord is not meeting the point that I seek to make. The point that I seek to make is that what is being given in this Bill is too wide a power. If it even risks being too wide a power, one must see whether there are in fact other powers which deal with the evils which are being contemplated. The gang of hooligans that the noble Baroness, Lady Trumpington, described, had undoubtedly committed, or will be suspected of having committed, conspiracies to contravene breaches of public order. So far as the turkey rustlers are concerned, they will be squarely within Clause 4(4)(a), because there will be grounds for suspecting—not for knowing for sure; that is not the criterion—that criminals are in the area, and whether or not it turns out that they are criminals does not matter.
A lot of concern has been expressed, not only by myself, about the potential ambit of this clause. The only question is whether we see what the Government's ultimate intention with regard to this clause is when they have examined it—or at any rate part of it—or whether we divide on this amendment now. I am prepared to see what the noble Lord finally comes up with when he has looked at the criterion in Clause 4(4)(c)(ii) to see what we are finally left with so far as this part of the Bill is concerned. But I ask the noble Lord to realise the potential evil of allowing the police to set up road blocks purely to find people who they think have crime in their minds is going very far and should be resisted.
Lord Elton: I will be very brief, too, and I shall quote the noble Baroness, Lady Phillips, as closely as I can. What do we think we are about? We are not inventing a thought police. We are enabling them to take quick preventive action when they have good reason to believe that a serious crime is going to be committed in a particular area within a particular time. I think the Committee will mostly agree with me that they should be empowered to do that.
Lord Mishcon: May I make the position clear on Amendments Nos. 35 and 36 because I think it will help the noble Minister and the Committee. The noble Lord the Minister has given a very clear indication that he recognises, without necessarily conceding them, the arguments that have been put forward as to the use of words to which this amendment objects. In those
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circumstances I am grateful to him. Therefore, I hope that something can happen between now and Report stage. It would be my intention when Amendments Nos. 35 and 36 are reached to say that they will not be moved in view of what the noble Lord the Minister has said.
Lord Boyd-Carpenter: If my noble friend examines Amendments Nos. 35 and 36 and if he discovers, as he has suggested he might discover, that the powers of the police would be increased as a result of the adoption of those amendments, may I express the hope that he will adopt them?
Lord Gifford: I, too, would wish to wait and see what happens with regard to Amendments Nos. 35 and 36 and to that part of the Bill before finally asking for any view to be taken about this part of the Bill. I beg leave—well, I will not beg leave quite yet.
Lord Elton: I do not wish the noble Lord to be encouraged to think that I shall be meeting him in any way on his amendment. I am not sure what that will make him decide to do now, but I cannot tell him that deciding to do nothing now will put him in what he will think is a happier position at Report stage.
Lord Gifford: I understand that and I have not taken anything that the noble Lord has said as any undertaking or assurance. However, I want to know what is the final form of this clause before commenting in the Committee on how acceptable it is. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
Lord Gifford Lord Gifford moved Amendment No. 31:
Page 6, line 24, after ("any") insert ("reasonable").
The noble Lord said: If the Committee pass on to Clause 4(2), we come to the nature of the power which is conferred once one of the grounds set out in Clause 4(1) exists. The power conferred is the exercise of the power conferred by the Road Traffic Act, that is to say, to stop a vehicle, in such a way as to stop all vehicles or vehicles selected by any criterion. My amendment seeks, I hope reasonably, to insert the word "reasonable" between "any" and "criterion".
Once there is a pattern of crime or once there is a suspected offender, whatever the ground may be, for a police officer then to have untrammelled, unfettered power to decide by any criterion in the world which vehicle should be stopped cannot be right. It would allow an officer to stop a vehicle on a criterion, however unreasonable, however biased and indeed—and I now come to what my noble friend Lord Molloy said—however racist the criterion may be.
I have already quoted live police officers from the PSI report expressing themselves in a racist way in the exercise of powers to stop. So we are not talking about something mythical or unlikely. The difficulty that "any criterion" imposes is that the citizen who is stopped and who believes that he has been selected according to a criterion which is biased or which is unreasonable, has then no right of redress. No doubt

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he can go to the record. He can ask for the record which is provided under another part of the Bill, and find out why the powers were exercised in the first place. He may agree that the exercise of the power in those circumstances was in principle reasonable.
However, he may still want to say, "Why did you pick on me?" If the policeman's answer is allowed to be, "I do not even have to give the reason why I picked on you. I picked on you because of an unreasonable reason", or, "I picked on you because although there was nothing racial about the suspected offence, you were black", or "I picked on you because you were driving a Rolls-Royce and I do not like posh cars", or whatever unreasonable criterion it might be, that person would have no redress.
Some people are going to be inconvenienced. Some people are going to be delayed, or miss appointments, or be queuing up along the roadsides when these road blocks are exercised. That is inevitable. The people who are inconvenienced in that way need to know that the power is being reasonably exercised and, if it is not being reasonably exercised to be able to exercise their right to complain or bring a civil action. However, if the criterion does not even have to be reasonable then they are left without a remedy and, what is worse, the police are left with an arbitrary power to stop people because they selected the criterion without reference to what might be reasonable in the circumstances.
Of course, "reasonable" has a very wide meaning and in the long run would be interpreted by a judge or jury. It may be reasonable in some cases to stop every tenth car. It may be reasonable in some circumstances to stop every car. There may be choices which could then be judged in the light of the emergency which motivated the search. However, there must be some criterion of reasonableness.
In the exercise of most statutory powers, particularly when they are exercised by Ministers, the law demands that they should be exercised reasonably. It may be that one could make a case that a power has to be exercised reasonably. Maybe that is what the noble Lord the Minister will say. If that is right, let its put it in the Bill. Let us not have an open power to select by any criterion. Let us put in the word "reasonable", which cannot in any way hamper the powers of those police officers who use these powers for reasonable purposes in reasonable ways. I beg to move.
Lord Somers: I cannot understand this widespread horror at a motorist being stopped by a policeman. If I were driving along the road and were stopped by a policeman, the only feeling that I should have would be anxiety to be of some use. The only regrets that I should have would be if eventually I found that I was not of any use. Surely the only person who can regret being stopped by a policeman is the man who has something to hide from the police. I cannot understand this idea that if the police stop a motorist in their effort to combat crime—which, incidentally, is growing to be a very serious matter in our society today—it should give any offence at all.
Lord Elton: If the noble Lord, Lord Gifford, would bear with me, the principal concern which he expressed, and one upon which he said I might be able
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to reassure him, was whether by some other provision in the law the conduct of the police in a case like this had to be reasonable, and if so he would still wish it to be in this Bill. So I may be able to curtail this debate by directing him to subsection (4) which makes the authorisation of a road check under subsection (3) the responsibility of a police officer of at least superintendent rank—and I see that others would wish it to be higher. That is in subsection (3). Subsection (4) makes it necessary for him to have reasonable grounds for suspecting that a serious arrestable offence has been taken. So the mechanism wanted is there. "Reasonable grounds", which is the requirement the noble Lord wanted, are on the face of the Bill. They are not, as it were, in the hand of the constable on the road; they are in the hand of the authorising officer in the station. He may feel that that is a more experienced, senior and responsible hand.
As to the question of people taking it amiss if they are stopped, the noble Lord, Lord Somers, is right in almost every respect. However, some people do feel that they are being picked on. It is the extent of that feeling which has led to the tabling of this Bill and many amendments to it. I only say that inevitably there are going to be what appear to be surprising decisions as far as the people stopped are concerned. For instance, since the noble Lord chose a case where the colour of a person's skin was important, if a black male prisoner escapes from, let us say, Parkhurst or Albany, it is not unreasonable for a police constable to stop a tractor and a trailer in the district if it is driven by a white female. It will suffice for the person to know that a convict has escaped and that the police are looking for him. In view of the fact that the reassurance that he wants is on the face of the Bill, I wonder whether I need address myself any longer to the noble Lord.
4.50 p.m.
Lord Gifford: I hope that the noble Lord the Minister will continue. If what he says is right—and it is—that would be a reasonable criterion for stopping the man. My question is, why should not "reasonableness" be contained in the Bill? It is not enough to say that the officer has to have reasonable grounds to believe that an offence is going to be committed or has been committed. It may be as clear as day that there is a serious arrestable criminal in the vicinity, but we need to extend the criterion of reasonableness to the judgment of who is stopped. I fail to see so far why that should not be done. There is no harm in it. It would give that protection and provide an answer to anyone who chooses to complain that he was picked on. If he was unreasonably picked on, should he not have redress? Will the noble Lord explain why the amendment is not acceptable?
Lord Elton: I am not entirely certain that I follow the noble Lord. I think that what he says is that the Bill provides that the purpose of the road check should not be frivolous, but must be based on reasonable grounds. He then says that the constable must have reasonable grounds for the basis on which he picks an individual vehicle to stop. He asks us to put this into the Bill out of a fear, I think, that constables may stop only black drivers or Rolls-Royces. I find it difficult to imagine

37
the constable would stop only black drivers if he was aware that a crime had been committed but not aware of the ethnic appearance of the person who committed it. Equally, I would be puzzled if, knowing that a crime had been committed by a white person and that that person was driving a car and would be visible, he should then stop cars driven by black people. However, as no constable can actually see who may be on the floor of a car until it has been stopped, I do not honestly see that the noble Lord's amendment would advance his case.
Lord Molloy: What the Minister says flies completely in the face of the Scarman report. We cannot in the early part of the year laud that report and then have this Police and Criminal Evidence Bill which throws it all to one side.
Lord Elton: I really must ask the noble Lord to give way. This Bill is very largely a response to the Scarman report. I doubt whether the noble Lord can have read the Bill, if he has not seen the provisions in it. All that we are arguing is whether it is a sufficient response. It is not a rebuttal. It does not cast the report aside. It is a measured and important piece of legislation designed to reassure people on exactly the grounds that Scarman showed they needed reassurance.
Lord Molloy: I cannot imagine the ordinary people of this country being enamoured of the Minister's argument that he is opposed to the word "reasonable"; and he is opposed to that word. There have been many debates in this Chamber when Members on this side have charged the Government that their inclusion of the word "reasonable" is not explicit enough, is not sufficiently explanatory, whereupon the Government have courageously gone on record and have stated what they mean in that instance by being "reasonable". Let them do the same now. Any Government should do that. I see nothing wrong in having the word "reasonable" put into the Bill. I shall tell the Committee why. A number of senior police officers to whom I have spoken tell me that they do not want what they call draconian or massive powers, but want at all times to appear to be really reasonable in the exercise of their very responsible duties. I am simply supporting my noble friend Lord Gifford—
Baroness Macleod of Borve: May I suggest to the noble Lord that he is being completely unreasonable?
Lord Molloy: I am sorry, but I missed what the noble Baroness said.
Lord Elton: My noble friend said that the noble Lord himself was perhaps being a thought unreasonable. I wonder whether I may just ask the noble Lords, Lord Gifford and Lord Molloy, to take account of this further consideration. The precise effect of the amendment may not be exactly what is intended. Subsection (2) places restrictions on the use of the Road Traffic Act power. The effect of the amendment would be to remove them from unreasonable cases of its use. If that is so, perhaps the noble Lord will spare us pursuing it further and consider between now and Report stage whether he has got it right.
Lord Molloy: I wish to make this point. If I was almost totally opposed to everything that the Government had done, I would let them leave it as it is, so that I could go outside and argue that the Government and their Front Bench are opposed even to anything that contains the word "reasonable". I do not want to do that. I want this Government who, in the general sense, are also my Government, to be able to say that they are at all times sensible and reasonable in the wording of legislation. I believe that the overwhelming majority of senior police officers would welcome the term "reasonable" simply because it is a well-known term in British jurisprudence which, by and large, we all applaud.
Lord Gifford: I do not want to raise controversy in the debate. I have so far accepted the integrity of the noble Lord, Lord Elton, in seeking by this Bill to redress the grievances which gave rise to the Brixton disorders and which are monitored in the PSI report. It is totally in that spirit that I move the amendment. In asking the Committee to accept that the requirement of reasonableness adds something to the Bill, and adds something that it needs, I go no further than to repeat a couple of quotations from the PSI report which indicate how some officers select whom to stop. It is the criterion of whom to stop that we are dealing with.
The first quotation concerns three experienced police officers:
"All three insisted that it was reasonable to stop any black people in cars because nine times out of 10 they would have drugs".
That means to say that if there was a suspected drug peddler—there could be a serious arrestable offence involved if there was substantial gain—whose colour was unknown, these officers would go round stopping black drivers only. It would be unreasonable, and there should be a redress.
The second quotation was:
"If I saw a black man walking through Wimbledon High Street, I would definitely stop him".
No doubt, the same officer would also stop him if he was driving through Wimbledon High Street and there was an alert out that a serious burglar of unidentified colour was in the area. Again, it would be unreasonable and, I am sure, contrary to the code of practice. But there would he no redress because the law allows that officer to select by any criterion.
I believe, further—
Lord Elton: The noble Lord has been kind to me in interrupting. The point is that the code of conduct is enforceable by the disciplinary code, and so there is, in fact, a redress.
Lord Gifford: That raises entire questions of whether the disciplinary code is enough. I want the complainant to be able to have a redress if the criterion for his being stopped was unreasonable; if he was stopped, let us say—because these are the examples I have given—on a racist criterion. The amendment is to Clause 4(2) which provides that the power to stop vehicles can be exercised for the purposes of this clause in such a way as to stop either all vehicles—one accepts that this may be necessary in some cases—or vehicles selected by any criteria. All that I seek to do is to insert "reasonable" into those criteria.
Lord Elton: I must detain your Lordships' Committee for a moment longer to elaborate on what I have said. The effect of Clause 4(2) is to de-limit those parts of the powers of the Road Traffic Act which operate under this clause. At the moment the power operates on all stops of all vehicles or vehicles selected on any criterion. The noble Lord would have it operate only on those which were selected by any reasonable criterion and not by any other. So the amendment is defective. However, I cannot dissuade the noble Lord.
Lord Mishcon: I wonder if I can be of some assistance, and if I am not, then at least I shall have wasted only one minute. A considerable time has been spent on what I am sure is an important amendment. Would the noble Lord the Minister consider the words:
"in such a way as to stop all vehicles or vehicles selected by any criterion"
necessary at all? Would he not think that the subsection could read:
"For the purposes of this section a road check consists of the exercise of the power conferred by section 159 of the Road Traffic Act 1972?"
Then we do not have to worry about anything other than the fact that the law exists as set out in the Road Traffic Act 1972 and will be so exercised in the course of these provisions. I should have thought that that might be a sensible way in which to deal with the matter.
Lord Elton: That is not a solution that is on the Marshalled List and it is one that I would be prepared to consider.
Lord Foot: I wonder if I could try to come to the assistance of the Minister because I think that he is right about this and that a lot of what has been said on this side of the Committee is incorrect. As I understand it, if we look at Clause 4 we find in subsection (1) the circumstances in which the clause shall have effect. As I understand it, subsection (2) is an attempt to define a road check. It says that a road check is:
"the exercise of the power conferred by section 159 of the Road Traffic Act";
that is, the power to stop vehicles of any kind in any circumstances. It goes on to say that a road check is the exercise of that power when it is done,
"in such a way as to stop all vehicles or vehicles selected by any criterion".
If one reads the words:
"vehicles selected by any criterion"
in this way: "vehicles selected by a criterion", one finds that a road check is defined as, first, a check to stop all vehicles or, secondly, a more limited check—that is, a check of certain types of vehicles or vehicles selected according to a more limited criterion. As the Minister has already pointed out, one then goes on to find that subsections (3) and (4) amply set out the fact that that power can only be exercised on the authority of a superintendent, and the superintendent can only exercise the power at all as long as he is satisfied that it is reasonable to do so. That seems to me to be perfectly sensible and reasonable and I
40
cannot understand why we have occupied however long it may have been discussing a matter of this nature.
Lord Gifford: If the noble Lord tells me that my amendment is defective then I feel that it is my duty to find out why, although at the moment I am bound to say that I cannot see why the Bill should not contain a clause or a limitation on the power to select what vehicles to stop, which imports a requirement of reasonableness. Nothing that the noble Lord has said has indicated to me that he is prepared to allow that criterion of reasonableness. We shall come back to this matter. I shall find out whether this amendment is defective and if it is I shall put an effective one down at the Report stage. I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
5.5 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 32:
Page 6, line 26, leave out ("superintendent") and insert ("assistant chief constable").
The noble and learned Lord said: Along with amendment No. 32 it may be convenient also to discuss Amendments Nos. 37, 37A—if the noble Lord, Lord Inglewood, has no objection—and Amendment No. 39.
Amendment No. 37: Page 7, line 10, leave out ("superintendent") and insert ("assistant chief constable but not below the rank of inspector").
Amendment No. 37A: Page 7, line 10, leave out ("Superintendent") and insert ("Inspector").
Amendment No. 39: Page 7, line 38, leave out ("superintendent") and insert ("assistant chief constable").
Clause 4(3) of the Bill confers on a police officer of the rank of superintendent or above the power to authorise in writing a road check. It is an important power. The police already and currently use their powers to stop vehicles where a person whose arrest is sought in connection with a serious offence may be known to be moving in a particular area. That power already exists. The Royal Commission, upon whose report so much of this Bill is based—or ought to have been based—recommended in paragraph 3.31 that such road blocks:
"should be confined to particular types of serious crime and should be regularised by the introduction of a measure of supervisory control".
The supervisory control that they were initially contemplating was the requirement of the authorisation of a magistrate's warrant.
The commission took very seriously, and quite rightly, the importance of the setting up of road blocks. Road blocks can obviously seriously disrupt the community and the movement of traffic upon the roads and, of necessity, the effect of a road block holding up a stream of traffic inevitably means that a large number of innocent people are disturbed upon their way or upon their business. Therefore, the setting up of road blocks is an infringement of a person's liberty to go about his business.
Therefore, it was for reasons of concern that the power should be under proper scrutiny that at any rate consideration was given not to the giving of the power to a police officer of certain rank but indeed to a magistrate's warrant. That, however, was ultimately

41
rejected by the Royal Commission for a reason which certainly appeals to me; namely, that the police in such a matter should take responsibility for an operational decision of that kind. That, if I may say so, is a sensible conclusion.
But the Royal Commission proposed that the decision with regard to setting up a road block should be by a police officer of rank not less than assistant chief constable. That is a measure of the importance that the power should not be used excessively—I shall not use the ugly word "abused"—when a person whose arrest is sought in connection with a grave offence is believed on reasonable grounds to be moving in a particular area. The Royal Commission's recommendation is quite specific and quite unambiguous upon this matter and we think that it is right to adhere to it.
There seems to us to be also practical reasons why the power of decision should be in the hands of an assistant chief constable or, of course, the chief constable himself. As the Bill stands, it will be possible for road checks to be set up on many parts of the same police area at the very same time. Let us take as an example Lambeth. Lambeth has four divisions—Brixton, Clapham, Kennington and Streatham—with a superintendent in charge of each. Under the clause as it stands it would be possible for superintendents in each of those divisions to set up checks without knowing that there are checks already in place in the other divisions. If a development of that kind took place, road movements in the whole of this considerable area would be brought to a wholesale halt. Therefore, in our view—and it was certainly the strong view of the commission, expressed in very clear terms—it would be more prudent and, indeed, more effective if the decision as to road blocks came from the level of chief constable or his assistant, who have an overall view of the requirement of the situation and of the area. It is because of the recommendation by the Royal Commission that this amendment ought to commend itself to the noble Lord the Minister, and it is because of its practicability and its reasonableness that I move it.
Perhaps I should say in passing that the amendment of the noble Lord, Lord Inglewood, proposes to lower the level at which road checks should be authorised. I imagine that he has in mind the argument of availability of inspectors as distinct from superintendents, and, least of all, as distinct from assistant chief constables. However, I submit that the importance of this decision and its possible practical effects point to the wisdom of the recommendation of the Royal Commission itself that this should be a decision of the assistant chief constable. I beg to move.
Lord Inglewood: I should like to respond to what the noble and learned Lord opposite has just said. I have tabled my amendment to replace the rank of superintendent with the lower rank of inspector on purpose. However, I am not quite sure that I have the words in the right place later in the Bill. It appears to be the wish of the noble and learned Lord opposite to raise the level at which authority can be given to set up a major road check. I believe that was the noble and learned Lord's point. He mentioned Brixton, where blocks might be sited to cover a large area. That
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situation would be entirely different from quite a small check, especially if, say, an important terrorist or other criminal was being sought.
One of the most important aspects in this case would be speed. The moment there is reason to check traffic in this way, a block must be set up at once. The next most important point is that a more senior officer should have a chance to assess whether or not it is reasonable, and for how long the check should be maintained. I must not describe any personal experiences, but perhaps I may be permitted just one sentence. Not very long ago I went to Germany, and the Germans gave me the opportunity, all on my own, with an officer the rank of sergeant and two juniors, immediately to set up such a check. We decided the criteria to be selected. We never heard a single word from anyone, and after ensuring that the check was happily proceeding, we closed it down.
Lord Elwyn-Jones: Perhaps I could draw the noble Lord's attention to the provisions of Clause 4(5) of the Bill, which, in an urgent situation, allows an officer below the rank of superintendent, without specification—
Lord Inglewood: I have already said that I did not think my words were in the right place, and I had that subsection in the back of my mind.
Lord Elwyn-Jones: I was merely drawing the noble Lord's attention to the fact that the emergency scene is covered by Clause 4(5) of the Bill.
Lord Denning: My noble and learned friend has referred to the metropolis; I want to refer to Hampshire. In Hampshire we have a chief constable, a deputy chief constable and an assistant chief constable. They deal with the whole county and have their own provinces of jurisdiction. However, the north of Hampshire covers an enormous area, and the superintendent lives just at the top of the hill beyond us. He keeps jolly good control over everything; he can deal with everything. He is much the best person to decide whether or not there is to be a road check. We should not bother the chief constable about it but leave it to the superintendent.
Lord Harris of Greenwich: I think that there are, indeed, practical arguments relating to this amendment, as the noble and learned Lord, Lord Elwyn-Jones, suggested in moving it. But in fact they are practical arguments which are in the opposite direction to the one which the noble and learned Lord favours. Following the point made by the noble and learned Lord, Lord Denning, I want to deal with a particular problem which would arise if the rank was that of assistant chief constable. There are 13 police forces in England and Wales which have only one assistant chief constable, and a deputy chief constable and chief constable on their establishments; all the other forces have more than one assistant.
I should like to deal with this practical problem. It is impossible to assume that a chief constable will always be in his own force area. He obviously will not be; he may be at a meeting of ACPO in London; he may be at a regional conference of chief constables.

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His deputy may be on holiday. Therefore, there would be only one officer of the rank of assistant chief constable or above who, in terms of this amendment, would be authorised to make this decision. I am bound to say that in a large police force area, such as the county of Suffolk, the sheer difficulty of a junior officer getting hold of that officer, who may be 70 miles away from his force headquarters, and of explaining to him the circumstances in which he believes it is necessary to introduce some form of road check would, in certain circumstances, create very serious problems indeed.
Therefore, I believe that it would be a mistake to pass this amendment, notwithstanding the point that the noble and learned Lord, Lord Elwyn-Jones, made, perfectly correctly. that the Royal Commission indeed recommended it. That is undoubtedly true. However, for the reasons that I have given, I believe that to limit ourselves in this way would not be advantageous; it would create massive practical problems in implementation. For that reason, I very much hope that the amendment will not be pressed.
Lord Plant: I support the noble Lord, Lord Harris, in opposing this amendment. The three police trade unions are well content with the word "superintendent". It would be a great inconvenience to forces where there is only one assistant chief constable if ACCs were given these powers instead of superintendents. For reasonable management it is right and proper that the word "superintendent" should remain. The Police Federation is quite content with that. I do not believe that it would wish to have "inspector" instead of "superintendent" inserted in the Bill, unless many more inspectors were to be appointed. The superintendents' association is quite happy, and the Association of Chief Police Officers would, I think, be gravely concerned if this amendment was carried. I shall oppose it.
Lord Elton: The noble and learned Lord has moved this amendment in view of the large powers embraced within Clause 4. I have already explained to your Lordships that they are not new powers and that Clause 4 embraces only those where the search is for people, and I shall not tread that ground again. It is also necessary to remember that there are two circumstances in which a road check may be needed. One of them is the circumstance of urgency, as my noble friend Lord Inglewood has mentioned. In those circumstances, the decision must be taken immediately as near the spot as possible, and a road check set up as soon as notice of a murder, a child abduction, or whatever, with the suspect proceeding in a particular direction, reaches the officer in charge at the moment. Therefore, I do not think that Amendment No. 37 in the name of the noble and learned Lord will work, because one cannot tie an instant decision to a particular and senior rank by saying, "not below the rank of inspector" in subsection (5). For practical reasons, I think your Lordships will agree that that will not work.
That brings us simply to the question of whether or not a superintendent is a sufficiently senior rank for the purposes of this clause. I listened to what the noble
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Lords said, and I also listened to the cogent arguments of those who disagreed with them. I almost wonder whether it is necessary for me to add to them. It seems to me that the rank of superintendent is a senior rank, and it carries day-to-day responsibilities which are at least commensurate with the matter we are now talking about. Whatever rank in practice one selects, if the chief officer starts getting complaints, whether from his police authority or from members of the public, that the power to check vehicles is being irresponsibly or too frequently used in any area, it is the chief officer who is going to take steps, so he will be alerted very early.
There is of course a further provision in Clause 5 which will enable the police authority itself to see how many road checks are occurring and why, and with what results. It would be a rash chief constable who allowed his divisional superintendents to expose him to warranted criticisms there. With the greatest respect, I think that the noble and learned Lord may feel, on this occasion, that he has probed far enough to find that he should not go further.
Lord Elwyn-Jones: I am not sure that I have. We set up a Royal Commission to investigate this and other matters. That Royal Commission, over a period of years, heard massive evidence, and on the police front they heard witnesses from the following police organisations: the Association of Chief Police Officers; the Police Federation of England and Wales; the Police Federation of the Sussex Police Joint Branch Board; and the Police Superintendents' Association. I have no doubt that all those witnesses spoke about these matters—whether they dealt directly with this particular point of course I cannot say—and we have in their conclusions the benefit of the evidence that they have taken.
We cannot hear the evidence here. Some noble Lords who have put the case for the police authorities have put it rightly and properly, but the advantage the Royal Commission had was that it heard the submissions of evidence to support their conclusions. We will be ill-advised to depart from the recommendations of the Royal Commission in the consideration of this Bill unless there are powerful reasons for doing SO.
As at present advised—perhaps some new advice will come from heaven on this matter any moment now—I am disposed to invite the noble Lord to think again about this. I do not know whether he would be willing, in the light of the attention I have drawn to the extent of the evidence that the Royal Commission heard in this field—I will not say on this very point—to in turn think again before giving a final negative to the amendment.
Lord Elton: I only want to intervene on a point of theology. I regret that I never have advice from heaven, and I am told very often that where I get advice from is closer to purgatory as the night goes on. The noble and learned Lord asks us to take a course which was rejected twice in the other place. It is not a new departure. The reasons against it seem to me to be cogent and persuasive and to come from all round the Committee. Therefore I leave the noble and learned Lord with no comfort as to my view.
Lord Elwyn-Jones: I am quite impenitent about having raised this matter. It was in the Royal Commission, and we should only depart from the Royal Commission's recommendations on the clearest possible occasions. I shall think again about this. For the moment, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 to 37A not moved.]
5.25 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 38:
Page 7, line 32, leave out ("seven days") and insert ("48 hours").
The noble Lord said: I can move Amendment No. 38 shortly. Once authorisation has been given by the senior officer—
Lord Elton: I rise only to be helpful, if I may, to ask the noble Lord whether he is also speaking to Amendment No. 40? I think that that is his intention.
Lord Elystan-Morgan: Yes, the two go together. I am most obliged to the Minister for his assistance.
Amendment No. 40: Page 7, line 41, leave out ("seven days") and insert ("48 hours").
The point is a short one. Once the senior officer—in this case the superintendent—has decided that there should be such a road check, then by virtue of subsection (11) of Clause 4 he
"shall specify a period, not exceeding seven days, during which the road check may continue".
Then so far as subsection (12) is concerned, it reads:
"If it appears to an officer of the rank of superintendent or above that a road check ought to continue beyond the period for which it has been authorised he may, from time to time, in writing specify a further period, not exceeding seven days, during which it may continue."
The arguments in favour of the amendments, which seek to substitute a period of 48 hours in both cases for the period of seven days, are as follows. First, the Royal Commission does not seem to have envisaged that a road block should ever be maintained for the length of period referred to in subsections (11) and (12). Secondly, one remembers the type of exercise that is involved in relation to Clause 4, which is the apprehension of a person who has committed a serious arrestable offence:
"a person who is a witness to such an offence; a person intending to commit such an offence; or a person who is unlawfully at large".
I am sure that the Committee would accept that there is broad common sense in the supposition that if results are to be fruitful they are likely to be fruitful in the first 24 hours, and at the most within 48 hours.
Road checks are serious interferences not only with private liberty but with the convenience of ordinary people. As the Minister has said time-and-time again this afternoon, this part of the Bill deals with restricting powers which are already existent in our law. It is on that basis that the Minister has invited the Committee to consider this very clause.
That being so, it would be right to limit the exercise of this power, which at the moment means that a superintendent can say that it shall be there for seven days and can, ad infinitum, prolong it by seven day renewals. It is right that that should be severely
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circumscribed. The practicality of the powers that have been granted to the police by this clause would in no way be impaired. I beg to move.
Lord Boyd-Carpenter: The amendment may well have considerable relevance in respect of road blocks set up in urban areas. But as I listened to the noble Lord I was inclined to think that he was overlooking the kind of situation which has frequently arisen in the past few years in the remoter country districts. The noble Lord and your Lordships will recall that there have been several cases recently of dangerous and desperate men—murderers, kidnappers and the like—who have taken to the woods and who have been hunted over considerable areas of country for periods longer than 48 hours. We should be unnecessarily handicapping those who have to deal with this very difficult situation, if we were to restrict the period of the road blocks in those cases to 48 hours, albeit that there is, as has been pointed out, the power to renew. The power to renew is there and it is a good thing, but it seems unnecessarily bureacratic.
There are situations when it is quite plainly necessary to hold blocks for some days, and, hopefully, those are in areas where the amount of traffic held up is little, where there are roads serving a stretch of fairly wild country or, in particular, woods. I feel that the seven-day rule, though it may not be necessary in many cases, sensibly takes account of those.
Lord Plant: I oppose this amendment very shortly. Let me give an example of something that has happened not once but on many occasions. Prisoners have escaped from Dartmoor, fog descends on the moor and it is foggy for four days. If there is a road block which has to be lifted after 48 hours, do the police allow the escaped criminals to go free?
Lord Elystan-Morgan: It may save time if I intervene. I think the noble Lord is labouring under a misapprehension that at the end of 48 hours the powers contained in this clause come to an end. They do not, because they can he prolonged under subsection (12) for another 48 hours, and another 48 hours, ad infinitum.
Lord Plant: This Bill is supposed to make things easier for the police; it is supposed to codify police instructions to make the issue reasonably straightforward for the police to follow. I think we are making things a little more difficult and confusing. If I believe that "seven days" is right, I cannot agree to "48 hours". Admittedly one can extend the period of 48 hours. If we can extend it ad infinitum, then I must ask what is wrong with "seven days"? I ask the Minister whether this Bill will apply to Northern Ireland? If it does, the IRA will feel that things are looking up. But I oppose the amendment.
Lord Elton: I am obliged to my noble friend and to the noble Lord, Lord Plant, for putting the practicalities before us. We are not dealing with a draconian power or a new power, therefore I think the sensitivity as to its duration is perhaps not entirely necessary. The noble Lord, Lord Plant, is correct that it would mean the renewal of an approach to a senior

47
officer every 48 hours rather than once a week, and senior officers have a very great deal to do.
We must remember that road checks may be continuous or intermittent. Therefore, a power to have a road check for seven days may amount to a small interference in the freedom of traffic to circulate. We must also be aware that circumstances change and the fog does come down and lifts on Dartmoor.
There is the other aspect of this which comes again to the matter we were discussing a moment ago about the expectation of a serious crime being committed. Here the power to renew does not seem to me to get us out of the difficulty that the noble Lord, Lord Plant, has put before his noble and learned friend Lord Elystan-Morgan. The justification for the use of the power must be that a serious arrestable offence is expected to take place within the period during which the road block continues. If it did not happen in the first 48 hours, the justification for the road block would have, as it were, fallen, so the curtailing of this period is difficult in that respect as well. I think that my noble friend has been eloquent on this, and I hope that the noble Lord will not pursue it.
Lord Elystan-Morgan: May I take the Minister's last point first, when he seeks to argue that, if the period of 48 hours were substituted for the period of seven days, that would appear to be the maximum period in the operation of Clause 4(4)(c) (ii). In other words the words,
"during the period during which the road check would be authorised to continue".
means the first period that will be authorised. I am sure that the Minister is putting a heavy gloss, an unwarranted gloss, upon those words. It would seem to me that the period during which the road check would be authorised to continue would be the period that the officers have in mind when they set it up. They may have several renewals in mind at that time.
For all the admiration that I have for the Minister's powers of argument, and indeed for his balance, if I may say so—my admiration for the exercise of his fairness and judgment is considerable—I am afraid that on this occasion I am not impressed by the attitude he has taken. Why was seven days chosen? It is a purely arbitrary figure. What virtue has seven days over two days? If it was one final period of time, and no renewal, I could understand that one would say seven rather than two. But what is the difference between a renewable seven and a renewable two? The Minister may say that two is arbitrary. Was it the Book of Genesis that led the Government to choose seven days rather than 14 or 28 days? With the greatest respect to the Minister, I do not think that the case for seven days has been made out.
Since we are dealing with the precious issue of human liberty, and since there is a question here of infringement upon the privacy of ordinary individuals, tens and hundreds of thousands of individuals perhaps in a year, I ask the Committee to consider that 48 hours may be more appropriate than seven days in this context. However, that is not a matter upon which I am prepared to go to the stake because the renewability factor means that one can renew 48 hours
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as often as one likes, making the same period in the end. Nevertheless, I should be grateful if the Minister would, between now and Report stage, give the matter further thought. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 and 40 not moved.]
Lord Gifford Lord Gifford moved Amendment No. 41:
Page 8, line 10, after ("entitled") insert—

("(a) to be informed of the name of the constable who has stopped him and the police station to which he is attached;

(b) to be informed of the purpose of the road check; and

(c)").

The noble Lord said: Clause 4(15) deals with the rights of the driver who is stopped at a road check. It is the only clause which deals directly with those rights. It limits those rights to the right to obtain a written statement on application within 12 months from the date one is stopped. The written statement would be a statement of the purpose of the road check. I have no quarrel with that so long as the written statement of the purpose of the road check is not just a form of words. I wonder whether the noble Lord, Lord Elton, can help on that: whether the written statement which is to be given would just be the form of words set out in Clause 4(1), or whether it would give some detail of the purpose of the road check.
However, my amendment seeks to increase those rights in two ways: to require the police officer who stops the driver, first, to tell the driver his or her name and the police station from which he or she comes, and, secondly, to inform him of the purpose of the road check. In other words, what the amendment seeks is what I am sure we would all wish to hear if we were stopped at a road check, that is a police officer courteously saying "Excuse me, my name is Sergeant Dixon, of Dock Green Police Station. We are checking to see if there are any witnesses in the car to a serious crime which took place", or whatever the purpose may be.
If the officer does not give that information the driver, first of all, does not know who has stopped him, which can be serious if the stop is carried out in an officious way. The noble Lord, Lord Elton, said a short time ago that it would be a disciplinary offence to stop someone on the basis of a purely racist criterion. It would only be redressed if the person aggrieved knew who it was who had stopped him. So far as the purpose is concerned, the public are surely entitled to know, if they are being stopped, broadly speaking the reason why and what is the purpose, and not just to have an officer looking into their car or looking at them without being told anything of the reason why. So it would seem that those rights would be valuable.
There is no provision for a code of practice, as I understand it, as far as road checks are concerned, so that any provision would have to be built into the Bill. When we dealt with the powers of stop and search we saw that the people who are going to be stopped and searched had those rights. People who are stopped and searched in the street will be entitled, according to the Bill, to be informed of the name of the constable who is stopping them and will be entitled to be informed of the reasons for the stop. If that is the right to be given to those who are suspected of carrying stolen or

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prohibited articles, how much more should it be given to drivers who are not suspected of anything and who are going to be the object of these road checks? It would very much conduce to good relations between drivers and the police if this information had to be given. I beg to move.
Lord Elton: May I remind your Lordships first that we are looking at the power to check and not to search. If the police constable were to wish to look inside the vehicle and search, then, under Clause 2(2), the requirements that the noble Lord seeks will already bite. We are only talking about a road check. Even if what the noble Lord wanted done only took 15 seconds, that is an extra quarter of an hour delay for the traffic with every 60 stops, if my arithmetic is right. Therefore, I have to ask myself whether this is a sensible thing to do or a necessary thing to do. Establishing the officer's name would only be useful if the person stopped wanted to pursue a complaint that he had exceeded his powers. But the stopping of a car at a road check does not require or imply any reasonable suspicion of that car.
If the road check has been properly authorised then the constable cannot have exceeded his powers in stopping the car. If the check has not been properly authorised, then a requirement of the kind proposed (which only arises in the case of an authorised check) would not be of much value; so that, as far as the purpose of the check is concerned, it would be good police practice when stopping a vehicle for the officers to explain to the driver the need for the road check there and then. It may simply be, "Have you seen a runaway horse?"—and no further explanation may be needed. I think it is better to rely on good practice than to require this rather elaborate procedure to be gone through when on so many occasions it will be unnecessary and will cause delay.
Lord Gifford: I do not intend to press this matter but I am anxious to know how these powers (which are now more closely defined) will be exercised. Will there be any guidelines, short of a code of practice, as to how the public will be addressed or is it to be left completely to the discretion of the police constable exercising the stop? A check implies that there is going to be some communication between the police officer and the driver. One would have thought that there ought to be in normal circumstances some explanation given to the member of the public. I am wondering whether any kind of guidelines, even if there is not going to be a code, will be applied to this power.
Lord Elton: We deliberately framed the drivers' entitlements in terms of a written statement and not necessarily of a copy of the superintendent's authorisation which must set out the grounds. This is because in the case of serious crime such as terrorist crime it may be desirable not to let out too many clues as to what the police expect and where.
Lord Gifford: One would have to see how this operates. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 42:
Page 8, line 14, leave out subsection (16).
The noble Lord said: The amendment I seek to move in this matter is not moved out of any feeling of hostility towards subsection (16) at all but out of a deep and abiding desire for information on this matter. It is a probing amendment on this basis. The Government in another place—and we have heard that refrain echoed several times today by the noble Lord the Minister—have said that the power in Clause 4 to set up road checks is a restrictive power in that it reduces the power which the police already have under Section 159 of the Road Traffic Act 1972. Yet the clause specifically, by subsection (16), preserves what appears to be wider powers. I should be very grateful, as I am sure would many noble Lords, if the noble Lord the Minister would explain to the Committee what other powers are saved by subsection (16) additional to the powers that are already set out in the clause.
My noble friend Lord Plant says that this is a codifying clause simplifying the law as far as police officers are concerned. If that is its motive, then, with the greatest respect, I fear that it will not succeed in that particular purpose. Nevertheless, if it be the case that this subsection does not add anything to the other powers contained in the clause, then there is no reason why it should remain in the statute.
Recently, in the context of the miners' dispute, the Government have stated that the police have extensive common law powers to stop vehicles. As I understand it, there are two sets of powers in relation to the stopping of vehicles. One is the common law power which enables any constable—or, indeed, for that purpose, any citizen—to act, using such force as is reasonably necessary, to prevent the commission of a crime. Secondly, there is the power in the statute that we have heard so much about this afternoon under Section 159 of the Road Traffic Act. Therefore, it is out of a feeling of uncertainty that I would respectfully ask the Minister to define exactly what wider powers, if any, are contained in subsection (16). I beg to move.
Lord Elton: Subsection (16) of Clause 4 makes it clear that its provisions are without prejudice to the ability of the police to stop vehicles for purposes other than the arrest of wanted persons or the tracing of witnesses to crime. There is a wide range of circumstances in which the police may wish to obstruct roads, and therefore to stop vehicles, for which the restrictions set out in Clause 4 are not appropriate. These circumstances range from the obstruction of a road that has been flooded to preventing vehicles from completing their journeys in order to prevent a breach of the peace.
The Royal Commission did not intend the restrictions they recommended to apply to the public order powers of the police. Indeed, they recognised that those powers were outside their terms of reference; and your Lordships will know that they are at present under review. But those powers are clearly necessary. They are also clearly not readily susceptible of statutory definition. Certainly they cannot be brought within the framework of the Bill, if only

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because the whole basis of Clause 4 is the restriction of road checks to the prevention or detection of serious arrestable offences, whereas breach of the peace as such is not an offence under the general criminal law. It would of course make no sense to provide that, since the common law powers of the police cannot be brought within the scope of the Bill, they should therefore cease to exist—not that I think that that is what the noble Lord proposes. But Clause 4 accordingly preserves the common law powers of the police, which have proved their value in a wide range of circumstances. I think that that is probably the substance of what the noble Lord was asking.
Lord Elystan-Morgan: I am very grateful to the noble Lord the Minister for his reply. I am not in any way surprised by anything he said. In fact, my noble and learned friend Lord Elwyn-Jones and other noble and learned friends indeed thought that that must be the legal position. But I asked the question, perhaps rather mischievously, on the basis…of what the noble Lord said about an hour ago when he said that he worried whether this clause would have the effect of,
"excessively diminishing the powers the police already have."
With the greatest respect to the noble Lord the Minister, I do not think that there can be any question of diminishing the powers which the police have. The Bill clarifies in a certain limited area those powers, but it does not diminish them and of course it does not restrict the other powers which are saved by subsection (16). For those ample reasons, I beg leave to withdraw gracefully.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Reports of recorded searches and of road checks]:
5.52 p.m.
Lord Elton Lord Elton moved Amendment No. 43:
Page 8. line 24. leave out ("set up") and insert ("authorised").
The noble Lord said: This is a drafting amendment which will bring the wording of subsection (1) into line with that of subsection (3) and Clause 4. I beg to move.
On Question, amendment agreed to.
Lord Gifford Lord Gifford moved Amendment No. 44:
Page 8, line 35, at end insert—
("(c) the nature of the charges preferred in each such month in consequence of arrests in each category specified in paragraph (b) above.").
The noble Lord said: Clause 5 of the Bill deals with the various kinds of record that need to be made public about the matters which we have been considering. I am sure that it is part of the Government's case for the powers that are being taken by this Bill that the information about how they are being exercised year by year will be made available to the public as a matter of statutory requirement.
Subsection (2) deals with the information that has to be given about searches and requires that the total number of searches should be reported in the various reports and that the numbers of people arrested in
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consequence of searches should be reported. I seek by this amendment also to require details not just of the arrests but of the charges preferred. I do so for the reason that in a great number of cases where the existing powers of stop and search have been used, people have been arrested in consequence of the search not because they have anything illegal on their person but because they are alleged to have obstructed the police in the exercise of the power that has been given; or to have assaulted the police; or to have committed some offence which is not an offence that they would have committed if it had not been for the approach of the police officer.
One needs therefore to separate those charges from charges which flow directly from the object of the statute—charges of carrying stolen goods: carrying an offensive weapon; or carrying goods which are for the use of theft. Therefore this amendment would enable us to monitor how successful these powers really are; in what proportion of cases, area by area and year by year, are people who are really guilty being stopped and searched and what proportion of people did not have any prohibited or stolen articles upon them. I beg to move.
Lord Elton: The purpose of publishing information is to make the broad application of the powers subject to independent scrutiny. The relevant information here is the number of arrests, and the clause already provides for that. What charges, if any, are brought following an arrest is, in a sense, an incidental question. After an arrest is made, various things can happen. It may be decided that a prosecution shall not after all be brought but that the person shall be dealt with by way of a caution; or that the person is to be summonsed rather than charged, and the summons may be issued in the calendar year following the arrest so that the prosecution could not be picked up in the relevant annual report; or that the person is to be charged but charged with an offence not related to the search itself.
I think that the noble Lord is anxious to test his thesis that a high proportion of arrests relate not to the possession of unlawful articles but to obstructing an officer in the execution of his duty or to assault—that is, that the arrest is generated by the search itself and by the resentment it causes. I am not sure that I read the mind of the noble Lord correctly but I think I do.
Research into the use of stop and search does not in fact support this thesis and, even if it were true, it would not prove that the powers were unnecessary or, indeed, that they were being misused. For example, the fact that a certain proportion of persons searched for drugs may be found to have stolen articles, or vice versa, does not show that either power is not useful, and since there is a strong relationship between drugs and theft—very often the latter pays for the former—it would not be surprising if the powers did overlap in this way. So statistics of the kind that the noble Lord proposes would not provide a useful means of checking on the exercise of powers of search. The statistics would be of some interest but not of practical benefit and, if there were a need for them, they could be collected on an occasional basis by research based on sampling from time to time. Moreover, there

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would be serious practical difficulties in requiring information about charges to be included in annual reports.
I have already referred to the difficulty relating to delay in the issue of the summons. More significantly, police filing and record-keeping procedures could not generate the information required without a very substantial exercise in collation, for which resources do not exist. There is one set of records which relates to the operational use of stop and search. These records terminate with the act of arrest. In the event of a prosecution, another set of records is opened. In principle, and with enough computer power, these different records can of course be matched, but I am advised that in practice this exercise would soak up a lot of additional police and clerical time which cannot, frankly, be spared and which would not, as I have tried to show, be usefully productive. So, while I sympathise with the interest of the noble Lord, I do not think I can help him on this.
Lord Gifford: I will consider carefully what the noble Lord has said but, before I withdraw my amendment—which I intend to do—I wonder whether he could help me about one matter, and, if he cannot help me immediately, he may be able to help me by writing. If someone is stopped by a police officer and is searched, and in the course of the proceedings—whether at the time of the stop or at the time of the search or at some time a little later—there is some obstruction, and the suspect is finally arrested for obstructing the police and not for anything which is found on him—let us say that nothing is found on him—would that be an arrest in consequence of the search? It may be that my fears can be allayed by being informed that it would not be an arrest in consequence of the search but would be an arrest in consequence of the behaviour of the individual. If that were the case, it might be that the Bill as it stands would provide for the information that we want.
Lord Elton: I think it would be best if I were to write to the noble Lord in answer to that question.
Lord Gifford: I quite understand that, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 45:
Page 8, line 38, after ("check") insert—
("() about the numbers of vehicles stopped in each of them; and
() about the duration of each of them;").
The noble Lord said: The necessity pressed by law upon the Commissioner of Police for the Metropolis and every chief constable to prepare and publish an annual report on the operation of his force is, in my submission, a very important constitutional phenomenon. It enables the possibility of public scrutiny upon various policies carried out by chief constables and it is a very substantial and necessary constitutional check upon the operation of a police force. Indeed, in Clause 5 the Government have legislated that every such annual report, among other things, so far as a road check is concerned, shall
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include information (a) about the reason for authorising each road check, and (b) about the result of each of them. That, of course, could be a very full report but it might be something very, very scant.
To say that a road check has been conducted upon a certain road for a certain period, and that the result was blank, might not convey any useful or significant information so far as the ordinary subject was concerned. It is for that reason that the amendment proposes that there should be contained in that report a statement about the number of vehicles stopped in each such check, together with the duration of each check. I appreciate that a line has to be drawn between overwhelming detail that would place a wholly unnecessary burden upon a chief constable on the one hand and, on the other hand, such scant information as would not in any meaningful way convey to the public exactly what had happened. In my submission, this amendment would achieve a medial position between those two extremes, and it is on that basis that I commend it to your Lordships. I beg to move.
Lord Boyd-Carpenter: I should be very grateful if the noble Lord opposite would explain how the figure of the number of vehicles is necessarily to be arrived at as a matter of practicality. If you put a road block on a road that carries major traffic, very soon a very considerable accumulation of traffic builds up. Equally, once this is known, a number of vehicles that have been stopped there for a little time either turn round if they can, back away or in one way or another escape on to a side road. How police manning a road block when there is a large accumulation of vehicles held up by that road block are to provide the figure that the noble Lord suggests they should provide seems to me to be very difficult. Frankly, it seems to be a case of "think of a number".
Lord Elton: I was wondering whether the noble Lord has an answer. But while he is considering—
Lord Elystan-Morgan: I certainly would not quarrel with the noble Lord, Lord Boyd-Carpenter, if in fact an approximate figure was to be calculated by the officers concerned. What I think is very important, however, is that there should be in that report something which gives an indication of the totality of the interference with private liberty that is involved. I would urge on the Committee that the sort of data which gives some indication of that factor is in fact the number of vehicles involved. If the noble Lord can think of a better criterion I will gladly accept it, of course. It is not a question of trying to make a nuisance of oneself so far as the police are concerned, but of conveying meaningful information that gives some idea of the scale and nature of the operation.
Lord Boyd-Carpenter: The noble Lord's amendment does not, of course, say anything about an approximate calculation; it asks the police to provide the number of vehicles. We rightly expect of the police, when they are under a statutory obligation to supply material, to supply accurate material. With respect, to say, "Oh well, that is not really what I mean; they can think of a number" does not seem to me to justify this amendment.
Lord Elton: I always try at Committee stage to look at principles as well as practices. The noble Lord wants something more precise about the use of this power, but since the purpose of his inclusion of it in the Bill is to exercise some supervision of the police it seems to me a little questionable—although this is not on the Marshalled List, what he has suggested is in our minds—to give the duty of making an approximation of the use of the power to the person exercising the power. This does rather reduce the value of the control itself.
We are—are we not?—in this Bill (and it is impossible not be to be aware of it) contributing very considerably to the amount of paperwork and the bureaucracy that the police have to carry out. Therefore, we have to test proposals such as this very closely. I am not certain that what the noble Lord proposes, in either form, will really enable the public to reach a view as to whether a road block was necessary or properly carried out. The essence of the road check is that the police do not know which car contains the person they are looking for. If they did, of course, they would stop only one car. Therefore, it is a matter of totally fortuitous circumstances whether he is in the third, the 30th or the 300th car which they check. It may well be that he will be found early, late, or not at all. So I do not see that the number of cars that have to be stopped at a particular check is of great significance, and it would be quite wrong to infer that because a small number of cars were stopped in one road check that was in some sense better justified than a case where 300 or 400 extra cars were stopped. The same argument, of course, applies to the duration of the check because the police may be fortunate in putting the block on and immediately finding their man or woman, or they may be unfortunate in not finding him or her for perhaps three days or seven days.
Finally, I would not wish to impose on the police for this very doubtfully effective purpose the duty of counting every vehicle that they check. I think that would be to add unreasonably to their duties. Of course, it is a fact that I regard this power as a less alarming one than, apparently, the noble Lord does.
Lord Mishcon: I wonder whether I might be allowed to make just a very short contribution. It is not just a question of supplying information for the use of the motorist concerned. As I understand the position, there are separate authorities who are interested in congestion of traffic. There are separate authorities or organisations representing motorists which have a view as to whether road blocks and road checks are really being systematically and sensibly arranged and ordered by the police.
This sort of information, whether it is precise or approximate—and I do not quite see the difficulty, if you have a road block, of counting the maximum number of vehicles caught by the road block—is very vital information for various purposes other than the one closely limited by the provisions of this clause. What one would be able to do as a result of seeing this information is to argue: "You know, a terrific amount of congestion has been caused. We have looked at the instances where this has occurred. It was needless. It lasted for too long and the number of vehicles was so
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huge". Without this information none of these representations can be made.
Lord Elton: I sympathise with the noble Lord's concern which he has made clearer to us, but I wonder how often he has been held up in one of these immense queues, because I cannot recall having been held up in one. It is not a matter of general complaint; it does not surface annually in the complaints made to the Police Complaints Board or, so far as I know, to the individual police authorities. It seems to me that the noble Lord is perhaps trying to provide a check upon something which does not need checking in the terms that he has stated. I do not think that the Automobile Association is always complaining about the length of queues produced by police road checks. I have not heard that.
Baroness Phillips: I would ask my noble friend on the Front Bench whether he would extend this argument to the number of times that one is held up while demonstrations go down streets. If the motorists were to say that they did not want that, they would be described as extraordinarily obstructive, very difficult and undemocratic. I can recall many occasions—one not too long ago—when I had been endeavouring to get to a very reasonable function but when it took me twice as long to get there as the trip had usually taken and when, finally, I had to walk, because a group of people living in this country were demonstrating over something that they did not like about the government of the country from which they had come—a matter about which we could do nothing at all. In our country we pride ourselves on the fact that we are liberal and allow anyone to demonstrate. But I suggest that if we are to keep records of the number of times that we are held up, it will be equally relevant to keep records of the number of times that we are held up because of road diversions, which often happen quite quickly and on the spur of the moment.
Lord Mishcon: I appreciate the progressive intervention of my noble friend, but it could very well be that it is most interesting for the police—and they usually compile them—to have statistics as to the number of people in a demonstration. I always notice that the numbers seem to differ between those given by the organisers of a demonstration, who talk in many thousands, and those given by the police, who talk in as many hundreds. Nevertheless, we are always interested to know that. I am sure that one day somebody will argue—I hope not effectively—that, because of the interference with transport, demonstrations should be limited, should go off main roads, and so on; but without these statistics one cannot do anything.
May I, in answer to the noble Lord—and I am not taking this any further—point out that it is all very well to say that some of us may have been delayed, or none of us has been delayed, by a road block, to our inconvenience; but it is quite obvious that if road blocks take place there will be people who are inconvenienced. I remember so vividly what happens in Brighton on a bank holiday. If we are to have road blocks on a bank holiday because Brighton is to be known as a pattern of crime area, I assure the noble Baroness that there may well be objections by

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motorists; but you cannot argue if you do not have the facts.
Lord Hooson: I should like to say from these Benches that we find it difficult to get steamed up about road blocks. There are many important matters in this Bill that excite our interest, and this whole matter ought to be put into perspective. Road blocks are not often introduced into this country, and when they are it is usually in a very serious situation. The Government have probably got it about right. We could spend a great deal of time on the details, but there must be a limit to the amount of bureaucracy that we place on the shoulders of the police; and I should have thought that on this part of the Bill we ought not to take it any further.
Lord Elystan-Morgan: Chastened by those words of the noble Lord, Lord Hooson, we on these Benches certainly do not regard this as a matter of the utmost importance. I accept that there is a great deal of force in what the Minister said in that, by and large, road blocks have been conducted for decades in the United Kingdom without there being any great public outcry about them. But it is the Government who, in Clause 5(3), make it incumbent upon a chief officer of police to report about these matters. If they were matters so utterly unimportant as the Minister might suggest, then there would be no reason for subsection (3). It is he and his honourable friends who have put in subsection (3), and it is on the basis of subsection (3) that we on this side suggested that there might be more meaningful information put in. I cannot strengthen my case without the sin of further repetition, and I do not intend to do that; nor do we intend to divide at this stage, though we might just about return to it on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Lord Foot: Before we leave this clause, I wonder whether I may put a question to the Minister about subsection (3). I agree with what he said just now about its not being very informative for the public to be told how many vehicles were stopped, or the duration of the road check, but the two matters referred to in this subsection—that is, the reason for authorising each check and the result of each of them—are matters in which the public would be extremely interested. What I do not fully understand is what is meant by the words "the result of each". Do they mean that, if a road check is set up and nothing comes of it, it has to be stated that the road block was ineffective? That is not necessarily so. Do they mean that if somebody is arrested or some information is obtained by the road check, that is what is supposed to be given as a result of the road check, or what? I should like to know what the Government have in mind when they talk about "the result of each".
Lord Elton: Of course, a chief constable can say only what he knows, and if the result has been something which he does not know, such as the prevention of a crime which he was not to know was in preparation,
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then he will not be able to put it in his report. But if a person is identified or a crime is solved, then obviously he will put that in the report. I do not doubt that the noble Lord, Lord Mishcon, would want him to say, "Lord Mishcon was made late for his dinner as well", if that was the result; but that is not what is meant by the Bill.
Clause 5, as amended, agreed to.
Clause 6 [Statutory undertakers etc.]:
6.17 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 46:
Page 9, line 2, at end insert ("if he has reasonable grounds for suspecting that an arrestable offence has been or is intended to be committed".)
The noble Lord said: In Clause 6 there is a reference to statutory undertakers and I hasten at once to tell your Lordships that my understanding is that it does not refer to the Treasury. The statutory undertakers are police employed by statutory authorities; namely, the transport authorities and various other authorities which have police whom they administer. The extent of this clause is seen in, for example, subsection (3) which reads
"any person appointed under the Special Constables Act 1923 to be a special constable within any premises which are in the possession or under the control of British Nuclear Fuels Limited shall be deemed to be a constable deputed by a public department".
We are now dealing not with the police employed upon criminal matters in the normal course, not with the Metropolitan Police, and not with the police employed by county authorities.
Under this clause, the constables employed by the statutory undertakers may,
"stop, detain and search any vehicle … in the premises of the statutory undertakers through a designated exit."
There the provision ends. Especially because one is dealing with this class of constable, for whom I have nothing other than respect, but not with the constable whom we are normally dealing with under this Bill, your Lordships may well think that before such constables are given this power to stop and search vehicles, then at the very least within the wording of this amendment they must have,
"reasonable grounds for suspecting that an arrestable offence has been or is intended to be committed".
I stress the fact that in this amendment I have not said, "serious arrestable offence". I have said, "arrestable offence". I have not said that a crime has been committed; there have to be reasonable grounds for suspecting that a crime has been committed. I have even gone so far as to use that dreadful word, "intended" which was referred to earlier this afternoon. Therefore I have given the broadest possible power, within certain limitations, to the constables we are dealing with—the employees of the statutory undertakers. But there must be some stop upon the all-pervasive power of constables employed by statutory undertakers to stop and search vehicles. I beg to move.
Lord Denning: I hope your Lordships will not accept the amendment. When I was very young I prosecuted many cases on behalf of the railway company. Their

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constables are first rate. As constables, they have to take the oath. I wrote a police manual for them when I was very young. We must remember that with vehicles going in and out of the great goods depots of London there is bound to be colossal pilfering. Nobody knows the extent of it; it runs into millions of pounds. How is one to check it? The police officer at the gate of the depot cannot say that he has reasonable cause to suspect each vehicle. He has to make a random check. This is the only way to enforce discipline: not because you think that everybody is necessarily criminal but because you have to make a random check of certain vehicles in order to see that all is going well. The power which is given in the Bill seems to me to be just about right. No qualification of it is needed.
Lord Boyd-Carpenter: May I ask my noble friend the Minister about the words in the clause at the point at which it is proposed to add the amendment. It appears to limit the power of the constable to stop and search to cases where a vehicle leaves by a designated exit. If a vehicle were to leave other than by a designated exit—by a back door, by pushing down a fence or by some other irregular means of egress—surely there would be a still stronger argument for stopping and searching because it would seem, prima facie, quite likely that an offence was being committed. I cannot see the point, although there is no doubt a perfectly good answer, for limiting this power to cases where the leaving is by a designated exit.
Lord Renton: Would my noble friend agree that his argument would apply especially in those cases where the exit was marked, "No Exit"?
Lord Harmar-Nicholls: I, too, hope that these words will not be added. If they were included they could interfere with good management. The example given by the noble and learned Lord, Lord Denning, is very clear. Another example would be hotel kitchens where, as part of good management, it is expected that people will have their bags looked at before they leave the hotel kitchen, otherwise all the staff in that kitchen are held responsible for any shortages which may arise. As the noble and learned Lord, Lord Denning, said, the random check is accepted. It is sensible. If you have to suspect that somebody is a thief before you provide the necessary precautions in order to make certain that the hotel kitchen is properly run, it will be to the disadvantage of everybody concerned. These words would I believe cut across what is normal practice, which is part of the test of showing that it is reasonable and sensible.
Lord Inglewood: Am I not right in thinking that the powers contained in Clause 6 are all new powers? There is no reason for getting pressure up about this. The power to stop, search and detain is a power which has existed for such undertakers for a very long time.
Baroness Trumpington: Subsection (1) deals with the search powers which are necessary to prevent and detect crime in the premises of statutory undertakers—as the noble Lord, Lord Mishcon, said, in the premises of railways, docks or harbours. The
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powers conferred by the clause will be exercised only by constables employed by the statutory undertaker, such as the Port of London police or the British Transport police, and will not affect the general public. They will be used to ensure that stolen goods are not smuggled out in goods vehicles by allowing regular checks to take place. I am most grateful for the words of the noble and learned Lord. Lord Denning, who justifies the present state of the Bill.
As is explained in the note on this clause, in order to deter and limit theft in premises such as railways and docks where substantial quantities of goods are stored and handled, it is conventional for a system to be employed under which the details of the authorised movement of any goods are entered on a pass given to the driver of the goods vehicle carrying them. All vehicles leaving the premises, or designated warehousing area within them, are then liable to be checked by the undertaking's police force to establish whether the goods on them match the pass. If, in answer to my noble friend Lord Boyd-Carpenter, the vehicle tried to leave through an undesignated exit, the power under Clause 1 would apply and there would be reasonable suspicion. I hope that answers my noble friend's point.
I do not believe it is necessary that such searches should require reasonable suspicion that the individual vehicle concerned is carrying stolen or prohibited goods. Clause 6 accordingly differs from Clause 1 in not incorporating the reasonable suspicion test as well as in extending beyond public places. However, I ask noble Lords to note that the power which it confers is confined to vehicles. If a constable employed by the relevant undertaking proposes to search any person in the vehicle, the test of reasonable suspicion must be satisfied and the search must be recorded in accordance with Clause 3.
There is clear precedent for such powers in the form of Section 27(2) of the Aviation Security Act 1982. This provides for the searching of vehicles leaving the cargo areas of certain airports. The important point about this power is that it does not depend upon reasonable suspicion of the individual concerned. The amendment proposed by the noble Lord, Lord Mishcon, would impose a reasonable suspicion test in the form of a requirement that there be such suspicion that an arrestable offence has been or is intended to be committed. But it is of the essence of the Clause 6 power, like that under the 1982 Act, that regular and random checks should take place. In their very nature, reasonable suspicion will not usually be present. The checks are preventative, not investigative.
This measure in the Bill is new, which is why, in answer to my noble friend, I have gone into it in rather more detail than probably I needed to do. In view of this explanation, I hope that the noble Lord will not press the amendment.
Lord Boyd-Carpenter: I hope my noble friend will take her explanation a little further. As I understand it, if the vehicle which is suspect is coming out by the back door, to use a colloquialism, my noble friend's argument is that the powers under Clause 1 arise. Clause 1 deals with the exercise of powers by ordinary police constables whereas the clause we are discussing provides powers for the constables employed by the

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statutory undertaking. I do not want to waste the time of the Committee by pressing this point further, but I suggest to my noble friend that she and her noble friend ought to look at the words, "through a designated exit" in Clause 7 and see not only whether they serve any useful purpose but whether they are not perhaps positively dangerous.
Baroness Trumpington: In answer to my noble friend I would point out that in Clause 5(1) he will find that one has to have reasonable suspicion, and the taking of a lorry through a back door would seem to me to be grounds for reasonable suspicion and for stopping and searching the vehicle.
Lord Boyd-Carpenter: Perhaps my noble friend will reconsider whether the words "by a designated exit" are necessary and, if they are not, will consider removing them at a later stage. With reference to my noble friend's comment about Clause 5, in that clause one is concerned with an ordinary policeman and not with a constable employed by a statutory undertaker. With respect, my noble friend has not answered my point.
Baroness Trumpington: I have now been given a translation. Statutory undertakers' constables may exercise the power because they are constables, as I thought I had said before. They can exercise the power to stop and search because they are constables, as well as being railway or port authority constables.
Lord Boyd-Carpenter: Can my noble friend then explain why the words "by a designated exit" are in the Bill? If she is right on that point, then that is wholly unnecessary verbiage.
Lord Elton: It is simply a question that Clause 1 contains a specific power where an offence is suspected, and Clause 6 contains a random power which is not given to constables generally, but is given to constables in this particular circumstance. The random power applies to the designated exit because the constable can then stop a vehicle leaving on a random basis. If the vehicle is leaving from a "No Exit" exit, then he does not need that power because he already has ample grounds for suspecting an offence.
Lord Renton: Would it not be enough to say,
"before it leaves a goods area included in the premises of the statutory undertakers"?
That is all one needs.
The Lord Bishop of Bath and Wells: I only want to say, apropos nothing in particular, that none of the undertakers with whom I have dealings employs constables. Thank heaven they do not, because we are told quite enough what to do without their having the law behind them.
Baroness Trumpington: As I said, this is a new measure and we are quite prepared to look at that part of the clause again, if the Committee wish.
Lord Mishcon: When the noble Baroness was courteous enough to answer my speech, I heard from
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this side of the Dispatch Box the remark, "My turn has come". May I congratulate her? I want to tell her here and now that the answer she gave me as to why the words in question were omitted from the Bill was a very satisfactory one. I heard the point and it has sunk home. From that point of view, I can well understand why the words have been omitted and I shall be happy to say something in a moment about applying for leave.
Only so that the debate will be complete on this matter, I should myself like to contribute to the point made by the noble Lord, Lord Boyd-Carpenter. I shall do it in a different way and, therefore, probably quite wrongly. Before I do so, I recall that the noble and learned Lord, Lord Denning, was reminiscing that in years gone by he prosecuted for the railway police. I also have the uptmost admiration for them because for a period of many years I happened to be their legal adviser. I, too, had precisely the same high opinion of them as did the noble and learned Lord.
In regard to the point made by the noble Lord, Lord Boyd-Carpenter—and I bring this forward only so that it may be dealt with subsequently, in general consideration, I should have thought that if a vehicle is seen leaving by a non-designated exit, there would be reasonable grounds for suspecting that a crime was about to be committed, or had been committed, and therefore it would not require any power under this statute. Any ordinary civilian could himself stop the vehicle and call for an arrest: it would not call for any special power in those circumstances. I throw that point into the arena so that it may be gathered up together with the others. No doubt we shall hear about it at some later stage, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Part I—supplementary]:
6.35 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 47:
Page 9, line 28, leave out subsection (2).
The noble Lord said: I am delighted to preface my remarks by saying that this is a probing amendment and therefore I ask for the Committee's sympathy in the course of the probe. We are faced with a subsection which I venture to believe will not meet with the approval of the noble Lord, Lord Renton, whom I would ask merely to resume his seat in order to see whether or not he supports me. If he decides not to support me, then I will give him leave to depart from the Chamber immediately.
The words which face us by way of legislation and which the police are supposed to understand, which laymen are supposed to understand, and which your Lordships are supposed to understand, are these:
"(2) There shall also cease to have effect—
(a) so much of any enactment contained in an Act passed before 1974, other than"—
and I assume, from that point of view, that we have to go back to the beginnings of Parliament—

"(i) an enactment contained in a public general Act; or

(ii) an enactment relating to statutory undertakers, as confers power on a constable to search for stolen or unlawfully obtained goods; and

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(b) so much of any enactment relating to statutory undertakers as provides that such a power shall not be exercisable after the end of a specified period."
What kind of research are your Lordships required to make in order to be satisfied that you know what you are passing when this subsection gets into an Act of Parliament? I venture to tell the Committee that I have myself tried to undertake a little research. I finished up somewhere around the middle of the eighteenth century, but felt that I had still not completed my labours.
This clause cannot stand as it is, I should have thought. But as I said, this is a probing amendment, and it may be that we shall have explained to us two points: first, what this wording means; and, secondly, why this provision cannot be explained more simply and clearly.
Lord Renton: I am deeply grateful to the noble Lord, Lord Mishcon, not only for drawing our attention to this rather strange subsection, but also for intercepting my departure from the Chamber in order to attend a public function—which, alas, I have to do tonight. I hope that my noble friend on the Front Bench will take careful note of what the noble Lord has said. It is a very strange provision, and indeed subsection (2)(a) seems to be a roundabout way of doing what is normally done in a statute law revision Act. It is a very unsatisfactory way because we do not really know what we are doing. It would be only one of those computers—on which. I am happy to say, many statutes are now recorded—which could give the answer to this: and I do not believe that the computer would find it easy.
Baroness Trumpington: I rise to try to serve as an interpreter. Subsection (2) distinguishes three categories of enactment conferring on constables powers of stop and search: public general Acts, Acts relating to statutory undertakers as defined in subsection (3), and other Acts. As to public Acts, the subsection has the effect of preserving powers of stop and search, other than those listed for repeal in subsection (1), which are either obsolete or superseded by Clause 1. As to statutory undertakers, the subsection provides that powers of stop and search conferred in relation to statutory undertakings should continue in force without limit of time. Some, but not all of, such powers are at present so framed that they lapse after a certain date unless re-enacted.
For example, the powers of stop and search in relation to railway premises conferred on the British Transport Police by Section 54(3) of the British Transport Commission Act 1949, which have been periodically re-enacted, are now in force until 1985. Subsection (2) provides that all such powers now in existence should no longer need periodic renewal, and I think that that is a very good principle. As to Acts promoted by local authorities, subsection (2) repeals powers of stop and search conferred by all such Acts passed before 1974, which are, in any event, due to lapse (unless re-enacted) on 3rd December 1984 by virtue of Section 269(9) of the Local Government Act 1972. The powers of stop and search conferred by local Acts passed since 1974, which relate to
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Merseyside and the West Midlands, are repealed by subsection (1).
This amendment would delete this repeal provision. As far as statutory undertakers are concerned, the powers of stop and search have always been re-enacted and are provided for specific purposes. They have proved their usefulness, and I really do not see why we should insist that they be re-enacted from time to time. I believe that we can now be satisfied, for example, that the powers of stop and search exercised by the British Transport police to which I have already referred are necessary and will remain so for the foreseeable future. All these powers will in future be subject to the safeguards contained in Clauses 2 and 3.
So far as other private Acts are concerned, the existing powers are replaced by the powers conferred in Clause 1. They are no longer needed and I would advise your Lordships to agree to their repeal as is provided by this subsection. Following my remarks, I hope that the noble Lords whose names are attached to this amendment will agree to withdraw it.
Lord Renton: I venture to suggest that, despite that painstaking explanation which my noble friend has been so good as to give to your Lordships, it really comes to this. It would be much simpler to repeal the various measures which the Government suggest do not need to remain on the statute book. We have already got a very lengthy repealing schedule, as is usual in cases like this, and to add another page, or even two pages, to its length would not matter greatly. But, if she can tell us that the various measures are already contained in the repealing statute, let us make that clear in this subsection.
Baroness Trumpington: May I just say that on drafting grounds we are willing to look at this matter again?
Lord Mishcon: I hope I shall not appear discourteous if I add the words, "So I should hope!" I do ask leave to withdraw in view of the fact that the noble Baroness the Minister has said that this drafting is going to be looked at again.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 [Power of justice of the peace to authorise entry and search of premises]:
The Deputy Chairman (Lord Ampthill): Before calling Amendment No. 48: I should point out that, if the Committee agrees to it. I cannot call Amendments Nos. 49 or 50.
6.43 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 48:
Page 10, line 4, leave out subsections (1) and (2) and insert—
("(1) A constable may for the purposes of criminal investigation obtain access to material which is likely to be relevant evidence, other than material which consists of items subject to legal privilege, by making an application under Schedule 1 below and in accordance with that Schedule.").
The noble Lord said: I should be very grateful if I may speak in relation to Amendments Nos. 50, 53, 54, 55, 56, 57 and 58 at the same time as dealing with Amendment No. 48.
Amendment No. 50: Page 10, line 4, leave out ("a justice of the peace") and insert ("a person empowered to exercise the jurisdiction of a circuit judge")
Amendment No. 53: Clause 9, page 10, line 38, leave out subsection (1).
Amendment No. 54: Page 11, line 7, leave out from ("material") to end of paragraph (c).
Amendment No. 55: Schedule 1, page 99, line 11, leave out ("special procedure").
Amendment No. 56: Page 99, line 13, leave out ("special procedure").
Amendment No. 57: Page 99, line 17, leave out ("special procedure").
Amendment No. 58: Page 99, line 18, at end insert—
("and
(v) that it does not consist of items subject to legal privilege or excluded material").
Lord Elton: May I ask the noble Lord whether it is therefore his intention not to speak either to Amendment No. 59 or to Clause 14 stand part, just so that I do not get lost?
Lord Elystan-Morgan: Not on Clause 14 stand part, but certainly in relation to Amendment No. 59. I am grateful to the Minister. That should be added to that fairly lengthy list that I threatened to deal with.
Amendment No. 59: Page 99, line 32, leave out ("or special procedure material").
Lord Elystan-Morgan: I can assure the Committee these amendments are not as complicated as they seem. I think that they can be summarised in this way. The main amendment is Amendment No. 48. The effect of accepting Amendment No. 48 would be to impose in two situations the very careful provisions of Schedule 1 to the Bill. This deals with the special procedures, first, in relation to the authorising of entry and search of premises, and, secondly, as is already the case in the Bill in relation to the powers that are contained in Clause 9 of the Bill—that is, access to excluded material and special procedure material. Certainly, that is so so far as special procedure material—that is, the second part of Clause 9—is concerned.
If Amendment No. 48, which is the wide-net provision, were to be carried, Amendment No. 50 would not he necessary. Amendment No. 50, however, is a more modest alternative to Amendment No. 48 and would make it necessary, before even a power of entry to premises was granted, for an application to be made either to a circuit judge or to a recorder or an assistant recorder. The other amendments are all consequential upon Amendment No. 48.
The powers of entry that are contained in Clause 8 are a very serious invasion of privacy. This has been readily accepted by the Royal Commission, and indeed so much emphasis did the Royal Commission place upon this particular matter that, in Chapter 3.42, the Royal Commission recommended in these terms:
"A compulsory power of search for evidence should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge."
It is on that basis that we put forward these amendments. The special procedures are carefully
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drafted to ascertain that they only apply within those highly justifiable circumstances that are defined in Schedule 1. I shall not go into the detail of those. Furthermore, one very important aspect as noble Lords will know, is that, where the special procedure applies, it is necessary for notice to be given to the person who is the owner or the occupier of the premises—in other words, that the application should be inter parses. Where the special procedure does not apply, then of course the application can be made without notice being given and without, indeed, the owner or occupier of the premises being aware of such application being made.
The position under Clause 8 as it now stands is that the application to enter premises to search for the most intimate material is to be made not to a circuit judge but to a justice of the peace. Secondly, that application, as I understand it, does not have to be made in open court but can be made quite privately.
Let me assure the Committee that I in no way seek to minimise the tremendous contribution made to the administration of justice by our lay magistracy nor, indeed, to cast the slightest doubts upon the competence and the integrity and the standing of that lay magistracy, which we know is responsible for the disposal of something like 96 per cent. of all criminal cases that come before our courts.
But the case that we put forward from these Benches is this. There are circumstances where a private conversation—for that is what we envisage it could well be—between a police officer and a justice of the peace is not the appropriate tribunal for deciding grave and weighty matters which are involved in the provisions of Clause 8—namely, the question whether private premises should be searched in the terms envisaged by this particular provision. The Royal Commission appreciated the importance of it. The Royal Commission, which I am sure had as much respect for the magistracy as any body could have, dealt with a not dissimilar situation, or at least a comparable situation, in Chapter 3. paragraph 33, of its report. There is dealt with the question of whether or not an application should he made to a magistrates' court before a road block is set up. We have just been dealing with that in Clause 4. The report reads:
"One of our number takes the view that in relation to this and a number of other powers the police should be required to obtain the authorisation of a magistrate's warrant, so that the use of the power could not become too common. The police should not be able to undertake such activity on their own authority and without outside scrutiny."
There then follow these words:
"The rest of us consider that for operational matters such as this the magistrates can do little other than endorse a policy request".
That is not to say that magistrates would be acting other than with total integrity in the matter. But the point is made by the Royal Commission that there is a danger that a magistrate, sitting alone and in private, would say to himself, "Well, this police officer is a decent chap. I have known him for many years. He is a competent fellow. He knows what he is talking about. He wants to exercise these powers and I do not see why I should not allow him so to act". In short, that is the case against allowing the matter to be decided, privily almost, by a justice of the peace.

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The alternative is that the special procedures should be invoked: we say that in Amendment No. 48. If the Committee were to say, "No, those are too elaborate"—and we see no reason why the Committee should say that—then Amendment No. 50 is the alternative. Amendment No. 50 stipulates that all applications should be made to,
"a person empowered to exercise the jurisdiction of a circuit judge".
It has been deliberately drafted in that way so that it enables the applications to be heard not just by a circuit judge, but also by a recorder or an assistant recorder; with both of those of course exercising the full jurisdiction of a circuit judge. Therefore, in our respectful submission, there is no paucity of persons who could hear such applications. They deal with grave and weighty matters. They involve massive trespasses upon private liberty. There are some very subtle, complicated and convoluted issues to be considered.
I ask the Committee to bear in mind for a moment the matters that are dealt with in Clause 8(1). The justice of the peace would have to be satisfied that,
"a serious arrestable offence had been committed".
That, in my submission, involves the consideration of some very weighty matters of law. Secondly, he must be satisfied,
"that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence".
Again, that can be a very complicated task. Indeed, it might involve some understanding of what lawyers call "similar fact evidence".
Thirdly, he must be satisfied,
"that the material is likely to be relevant evidence".
In relation to that one has to read subsection 3, which states:
"'relevant evidence', in relation to an offence, means anything that would be admissible in evidence at a trial for the offence".
Is it right that an ordinary justice of the peace, however well versed in the usual matters dealt with by him in his normal jurisdiction, should have to decide such complicated matters of admissibility, as can so often arise in this respect?
There is endless detail which I could go into. There are many examples that I could tender for the attention of the Committee, but I do not do so because I think that the Committee is well aware of the principle which is here at stake. There is no power of appeal and no provision for challenging the decision of the magistrate under Clause 8. That, we say, is in itself a very considerable weakness, especially bearing in mind that in our law the most trivial decision of a magistrate is normally challengeable by way of appeal in the Crown Court. But there is no appeal here and, in any event, very probably appeal machinery, as such, would not be appropriate because by then the goods will have been seized and the police will be party to that information. We say that if the recommendation of the Royal Commission, solemnly considered before it was made, that the decision should be that of a professional judge is conceded, then that would be a proper substitute for appeal machinery. I beg to move.
Lord Hooson: The force of the argument of the noble Lord. Lord Elystan-Morgan, arises from the fact that the whole of Part II is so badly drawn up. It is very complicated and very difficult. How on earth a constable or a justice of the peace is to understand it, I do not know. I shall come to that argument presently on the Question whether the clause shall stand part. My noble friends and I considered it virtually impossible satisfactorily to amend this part of the Bill: that is, Clauses 8 to 14.
I am bound to say that I prefer the amendment tabled by the noble Lord, Lord Elystan-Morgan, and his noble friends, rather than to leave the clause as at present drafted. Let us look at the power of entry in Part II, under the heading.
"Powers of Entry, Search and Seizure",
and simply take Clause 8(1)(d). We see that the magistrate has to consider,
"that it does not consist of items subject to legal privilege. excluded material or special procedure material".
Therefore, to what does the magistrate have to address his mind? He has to address his mind to the definition of "excluded material", which is in Clause 10. He has to consider Clause 11, which is headed:
"Meaning of 'items subject to legal privilege' ".
He has to consider other matters—the meaning of "special procedure material", and so on. He has to consider whether the application can be properly made to him, or whether it ought not to be made to the circuit judge. The whole matter is far too complicated. It is complicated enough for a circuit judge. It will be very difficult for the ordinary lay magistrate to follow if he is to discharge his duties correctly and properly. Therefore, I have to say that as this part of the Bill is drawn up at present there is a great deal to be said for the amendment.
Lord Denning: I hope that your Lordships will consider this amendment with much sympathy. It is a fundamental principle of our law, as has been said by Lord Coke, that,
"an Englishman's house is his castle",
not to be entered into by any authority, except by a proper warrant. Your Lordships may not remember the great case of the general warrants of 200 years ago when the Secretary of State ordered the King's messengers to go into the house of John Wilkes and seize all his private papers. They took them all away in a sack and his pocket-book filled the mouth of the sack. That is what the King's messengers did then.
In a great judgment Lord Camden declared that these general warrants were completely unlawful, and it was a power completely abhorrent to our English laws that a person should enter a man's house and seize his papers in that way. That has come down the centuries, but how it has been invaded!
What is clear now is that a search warrant should be issued only on judicial authority. That has been maintained in many statutes. I have to say that there is power given in statute after statute for a search warrant on application by a constable to a magistrate. Indeed, those warrants are given in cases where there are stolen goods, drugs and explosives—prohibited articles. In the appendix to the Royal Commission

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report there are 10 pages concerning search warrants under various statutes that can be given by the magistrates on application for searches to be made for such prohibited articles. That is by a magistrate.
What the Royal Commission was considering was the further step—not in order to look for or to seize prohibited articles but to search for relevant evidence, such as the murder weapon, the blackmailer's notes, or, it went on to say, for fraud or deception in company accounts, and the like. That is relevant evidence, which is very different from prohibited articles. In that respect the Royal Commission said that we must be very careful, and we ought to have the judicial authority of a circuit judge before that is done. It makes that perfectly clear.
The Royal Commission drew attention to the large category which I mentioned:
"The existing powers are mainly confined to entry and search for items which it is an offence knowingly to possess (we refer to these as prohibited goods): for example, stolen goods, drugs, firearms, and explosives. We reaffirm the principle of the present law that such powers are justified and should be retained".
We find that preserved by the very last subsection here. All the existing powers are retained. Clause 8 is dealing with the exceptional powers to search for relevant evidence, such as I mentioned before—company documents, murder weapons, or the like.
This is what the Royal Commission says about that:
"A compulsory power of search for evidence should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge".
Let me give an illustration which we had in the courts only three or four years ago. A statute gave to the revenue authorities a power to search for documents which they thought might be evidence of a tax fraud. That was the wording of the statute. Without any notice to the company—this is the Rosminster case—or the individuals, they mounted a military-style operation by which 70 or more civil servants went to the company's premises, ransacked them and took 13 vanloads of documents to their own premises to search and ransack through them. That was not done by any warrant issued by a magistrate. It was on an application to a circuit judge. It happened to be the Common Serjeant of the City of London. An application was made to him and he granted it. In the Court of Appeal we held that that was invalid, but the House of Lords held that that was right because the statute permitted it—only because the statute permitted it.
Clause 8 is really only an extension. It is not really stating the whole law. It is filling in a gap which existed before. I should have thought that the right thing was to fill in gaps for exceptional circumstances. The proper course is, as the Royal Commission said, to make application to a circuit judge for that purpose. It is all the more important when, as has been said, it is so complicated.
The person hearing the application has to consider whether it is an arrestable offence. He has to consider all these details. An ordinary magistrate is not the sort of person whom you would expect to do that. He may have his clerk with him, but this is such a complicated procedure that it ought not in this case to be a
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magistrate. I would suggest that it should be a circuit judge, his deputy, or another alternative, as the case may be.
In other words it would be a good thing not to have this special procedure—we are coming on to that—but this is an exceptional class of search. It is a search not for offending documents or prohibited goods but for evidence. It will often be, I am afraid, a search of documents and papers to see whether there is any incriminating stuff there; or, on the other hand, whether there is any excluding material. All that should be dealt with not by an ordinary magistrate but by a circuit judge, as the Royal Commission recommended.
7.7 p.m.
Lord Harmar-Nicholls: We have had very sound advice from our legal colleagues. The point ought to be reinforced by the Committee noting the fact that one does not need legal training to see that Clause 8 is putting much too onerous a burden on the average magistrate. One has only to read it to know that. If it is necessary to consider all the evidence that is set out in the clause before permission is given for the search, the person considering all the intricacies should be someone who is more competent than the normal magistrate. The noble and learned Lord, Lord Denning, said that no doubt the magistrate would have his clerk beside him: but the clause as it stands does not include even that protection. It says that the magistrate sitting alone in his own house can make the decision. We do not even have that protection.
I merely want to say to my noble friend that, in the light of all that we have heard, I feel that Amendment No. 50 at least should be included. I do not know enough about the matter to comment on whether we should have Amendment No. 48. But on the evidence that we have heard—my noble friend points to her watch; yes, I can tell the time. I am perfectly capable of doing that. I think that the issues involved in this clause need the support of more than one side of this Committee. That is what I wish to do, in the absence of any other noble Lord making that contribution.
Amendment No. 50 would seem to be the minimum that should be included in the Bill if this sort of burden is to be put on anybody who is to make the decision that the evidence calls for.
Baroness Macleod of Borve: I wanted to say a word or two, but before my noble friend replies, let me say only this. May I ask him, please, not to refer to "ordinary magistrates", as other Members of the Committee have done? We are not ordinary.
Lord Harmar-Nicholls: Unusual.
Baroness Macleod of Borve: We are not unusual either. We are hard-working, unpaid people, who have very many years of experience behind us.
Lord Elton: I am obliged to both my noble friends for giving both perspectives on this issue. I do not hold it against either of them that they have intervened.
Noble Lords have rested part of their case on the complexity of Clause 8, which requires a magistrate to

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consider whether the material for which a constable seeks a search warrant is sought under circumstances where it is reasonable to suppose that a serious arrestable offence has taken place (and that is not a difficult matter); that the material on the premises specified in the application would be of substantial value to the investigation of the offence (and that is not a difficult matter); and that the material is likely to be relevant evidence (that is not a difficult matter). All those aspects are points to which the magistrates are accustomed to addressing themselves.
There is a further requirement that the magistrate shall decide whether or not the material falls into any of three categories which are described in subsequent clauses of the Bill—accurately listed by the noble Lord, Lord Hooson. If they do, they will proceed no further because it is no business of theirs. If they do not, there is requirement on the magistrate to consider whether any of the conditions under subsection (2) apply. Those are really conditions which say that it is necessary to proceed by a warrant and that no other method will do.
So although I accept that there is intricacy in the provisions, I think that the Committee will agree with me that the only intricacy lies in the interpretation of the three categories with which a magistrate is not empowered to deal. Those categories are set out in clauses to which we shall shortly address ourselves, which are listed, and to clauses dependent on them. I say that by way of preface because I do not think that now is the time to embark on an exposition of the way the whole of the part of the Act works. I do not think that that would be too difficult but it is not the appropriate time. With regard to that objection to the Bill as it is drafted, it merely lies on me to say that if there are complexities they lie after Clause 8. It will be proper for the Committee to try and set them right in those clauses.
I therefore have to turn to the principal issue which the noble and learned Lord, Lord Denning, with his usual and incomparable lucidity, introduced with a name which I am happy to assure him is familiar to historians as well as to lawyers. That is the case of Wilkes. It was indeed a watershed if it was not also a turning point—whether or not the two can be combined I do not know. However, I think it stood in a different order of importance from the issues which we are now considering.
I know that the noble and learned Lord may not agree with me but I will ask him to bear with me for a moment. The amendment before the Committee seeks to provide that applications for search warrants under Clause 8 are heard by circuit judges or their equivalents rather than magistrates. The rest of the amendments go further and provide the protection at present given only to special procedure material to any evidence, provided it is not exluded or legally privileged. This was of course the recommendation as I acknowledge, made by the Royal Commission in paragraph 3.42 of its Report; and the Committee will know that in the case of material which is held on a confidential basis we agree with the Commission that the possibility of interference with contractual or ethical obligations requires a hearing at judicial level.
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We believe however that where considerations of confidentiality and hence of public policy do not arise, there is no need for the kind of safeguards, including the involvement of the judiciary, contemplated by the Commission. Indeed, serious anomalies would arise if the new power to search for evidence were divorced from existing powers of search under a magistrate's warrant. Parliament has entrusted the power to hear search warrant applications to the magistracy for over 100 years. Magistrates are people of great experience. Existing provisions enable magistrates to issue warrants to seize a wide range of unlawful articles and evidence of a wide range of offences. But it is by now well known that there are gaps in these provisions. For example, there is provision for the issue of a warrant in relation to offences of criminal damage but not to offences against the person. This is because the law has developed piece by piece, and as legislation has been introduced powers of search under warrant have been included as and where they have been considered necessary. In the case of the major offences of violence and dishonesty either there has never been such legislation (and the offences remain at common law); or the basic legislation precedes modern conceptions of the role of the police in investigating crime and the growth of organised crime, and the opportunity has not been taken when offences have been redefined and new offences created to hold a systematic review of the investigative powers necessary for effective enforcement.
It is agreed that there are gaps in the law and that the Bill can and does fill them. But it does not provide the new departure, the as yet untested power that some of its critics appear to attribute to it. The power for the police to enter and search the premises of someone not suspected of any involvement in crime is already on the statute book and already in use. It is provided in the Theft Act 1968, which recognises that stolen property may be secreted on the premises of people completely unimplicated in the crime in question. The noble Lord may say, "That is a power to search for the proceeds of crime. I am concerned with evidence". In that case, I must refer the noble Lord, for instance, to the Misuse of Drugs Act 1971, 13 years ago. That gives a power to search for evidence whether or not the owner or occupant of the premises is involved in the crime. Therefore if the argument in favour of the amendment is to be that it is the novelty of the power which I think I heard the noble Lord, Lord Elystan-Morgan, describe as a massive trespass on the private individual, if it is the novelty of that power that justifies the amendment, then of course the justification must fall.
However, let me re-assure the Committee by another example. Section 6 of the Criminal Damage Act 1971 empowers a magistrate to issue a search warrant in respect of anything which has been used to cause criminal damage, which might easily be an article which a suspected offender had borrowed from and returned to a third party with no knowledge of the offence. So the fact that Clause 8 is cast in terms of evidence of crime, and a huge range of things could in certain circumstances constitute such evidence, is no reason itself to depart from the principle that the normal issuing authority for search warrants is a magistrate, bearing in mind also the considerable new

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safeguards imported into the procedures for applications for and the execution of search warrants by Clauses 15 and 16 and the draft code of practice. If the amendment were accepted it would result in strange anomalies so that, for instance, the police, on a magistrate's warrant, would be able to search a casino for evidence of an infringement of the Gaming Act but they would require a judge's warrant to search the same casino for evidence that the staff had burnt down a rival establishment.
The arguments against these amendments were aptly and cogently summarised by the noble Lord, Lord Mishcon, when we considered a similar amendment during Committee stage on the Video Recordings Bill. The noble Lord then pointed out that Parliament was either right or wrong to give a magistrate the right not only to convict of quite serious offences but also to send citizens to prison. That right was given as a result of our faith in their judgment and impartiality. Parliament was either right or wrong about that. As the noble Lord said, if Parliament was right about that, then is not a magistrate able to be trusted to make a decision about the question of search of premises? The noble Lord considered that it was right in the case of video recordings, and I hope that, with his assistance already so ably if unsuspectingly given, I can persuade your Lordships that it is also right in this case. If I am wrong—if he fails—I shall welcome him in the Division Lobby if the Bell rings.
Let me add this argument which the noble Lord also advanced. The right of search will often be useless if it is long postponed. Normally it is of value if expeditious action follows. While it may and should be perfectly easy to find a magistrate to hear an application, it may not be very easy to find a circuit judge as a matter of urgency.
These are powerful arguments which in my opinion apply to this Bill even more strongly than they did to the Video Recordings Bill where of course they were very much better put. Here we are dealing with evidence of serious crime. The points made by the noble Lord on that occasion helped persuade the Committee that a magistrate should be empowered to issue search warrants under the Video Recordings Bill, and I hope that they will be equally efficacious on this occasion.
Lord Mishcon: The noble Lord the Minister has been most courteous in his reference to my utterances. He might as well inform the Committee that, on that occasion, he differed from me.
Lord Elystan-Morgan: The noble Baroness, Lady Macleod of Borve, with great charm, mildly chastised me and a number of other noble Lords who had used the term "ordinary magistrates". We did so as mere lawyers, drawing a distinction between stipendiary magistrates and those who do not belong to the stipendiary magistracy.
I shall not try to meet every argument made by the Minister. They were clever arguments. They were technical arguments. But, in my respectful submission, they did not meet the principle. That was dealt with by the noble and learned Lord, Lord Denning, who appreciates that a principle of massive worth. a principle that involves the whole issue of
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human liberty and the sanctity of privacy, is at stake. I do not think that I need say more, other than to remark that I was enthralled and inspired by the speech of the noble and learned Lord and that it has made us all the more determined to press this matter to a Division. I shall therefore seek to move Amendment No. 50. The other amendments to which I have spoken will not be moved. I beg leave to withdraw Amendment No. 48.
Amendment, by leave, withdrawn.
Lord Inglewood Lord Inglewood moved Amendment No. 49:
Page 10, line 4, after ("constable") insert ("with not less than four years' service").
The noble Lord said: We are still dealing with Clause 8—a sensitive part of the Bill. This amendment could have wider applications than in the narrower sense it has as now printed. It limits certain jurisdiction of less experienced police constables. I should like my noble friend the Minister to consider whether a check such as I suggest is appropriate. The tasks of a young police constable are accepted by everyone to be difficult. It is always hoped when a young police constable is out on duty that there can be dual manning, but it is not always possible. I can assure noble Lords that I shall take no longer than noble Lords opposite, and that my remarks will be brief.
However, dual manning is not always possible, and a young constable may be called upon to exercise his full powers from the first half-hour. We have the shortest training period in Europe, while police duties are becoming more exacting. When dealing with searches of private property, the problems can be extremely complicated. A precedent exists whereby a young man, up to the end of his two-year British probation period, has certain checks on his jurisdiction. If we look further afield we see that there are other European countries where similar checks apply. I should like the Government to consider whether it might not be possible to limit the powers of the very young constables and to have such matters handled only by older, or experienced, constables. I beg to move.
Lord Elton: I am sure your Lordships will agree that the application should not be made lightly. Your Lordships have already made that clear. The power to enter and search the premises of someone who may himself be innocent of any involvement in crime is a necessary, but also coercive, one. I do not disagree that only experienced officers should decide that an application for such a warrant be made. However, I am not sure that my noble friend is right in the way that he seeks to bring it about. The fundamental safeguard is that of the scrutiny of the application by a magistrate. If a premature or unnecessary application is made, then the magistrate may, and should, dismiss it. But the question of which officer makes an application can properly be dealt with, as an essentially operational matter, in the code of practice for the searching of premises which the Home Secretary will be required to issue under Clause 63.
The search code printed in the booklet already available begins on page 50. Paragraph 1.4 states that,
"No application for a search warrant may be made without the authority of an officer of at least the rank of inspector (or, in a case of

75
urgency where no officer of this rank is readily available, the senior officer on duty). No application for a production order under Schedule 1 to the Police and Criminal Evidence Act 1984 may be made without the authority of an officer of at least the rank of superintendent".
Clause 64(8) states that an officer who breaches the codes will be liable to disciplinary proceedings.
My noble friend will see that this is a more restrictive provision than what he proposes. And the requirement that an application for a search warrant must be authorised by an officer of at least inspector rank applies not only to applications for warrants under Clause 8, but to all warrants. I hope that provides him with the reassurance he wants.
Lord Inglewood: I am glad that my noble friend accepts the principle. I have not heard it debated in the Chamber previously, on other Bills. At this stage I beg leave to withdraw my amendment. However, should I see any further opportunity on this Bill or later, I may raise the matter again.
Amendment, by leave withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 50:
[Printed earlier.]
The noble Lord said: I beg to move.
Lord Elton: In two minutes, I want to clarify one point because the noble Lord, Lord Elystan-Morgan, courteously but effectively, swept aside everything that I had said. The noble Lord remarked that I was concerned with clever technicalities, that what mattered was the major issue and that the major issue was something new and terrifying. I listened with the greatest respect to the noble and learned Lord, Lord Denning. It seems to me, however, that the new issue is that we are about to take away from magistrates a power that they have had for 100 years in cases where there are serious arrestable offences. If that is really what the noble Lord asks us to do, I am sure that I shall have little difficulty in persuading your Lordships to disagree.
Lord Elystan-Morgan: The Royal Commission on this matter had no hesitation, having heard ample evidence all round. I doubt very much whether by this amendment we are in any way circumscribing the powers that magistrates already have. The ordinary power to issue a warrant to search for stolen goods, to search in relation to drugs under the Misuse of Drugs Act 1971, to search in relation to firearms—all those powers will remain. Clause 8 proposes a power to snoop for evidence on private property. We say that that power should never be used until a judge has considered all the highly complicated and convoluted issues that are bound up with that matter. I see that the noble and learned Lord. Lord Denning, wishes to speak again. I am glad to give way.
Lord Denning: I should regret it if any of the existing powers of magistrates were taken away. I assumed that all existing powers remained absolutely intact by virtue of subsection (4), which states:
"The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred".
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Surely, that retains every existing power in all the statutes which have been given to magistrates down the years. I should very much regret any impairment of the powers of magistrates. I have the greatest respect for all that they have done. It is only because this is what I regard as an exceptional new power that I suggest that the application should be to a circuit judge.
7.29 p.m.
On Question, Whether the said Amendment (No. 50) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 68.

DIVISION NO. 1

CONTENTS

Airedale, L.

Jenkins of Putney, L.

Amherst, E.

John-Mackie, L.

Ampthill, L.

Kilmarnock, L.

Ardwick, L.

Lloyd of Kilgerran, L.

Attlee, E.

Lockwood, B.

Aylestone, L.

McGregor of Durris, L.

Barnett, L.

McIntosh of Haringey, L.

Beaumont of Whitley, L.

Masham of Ilton, B.

Blease, L.

Meston, L.

Bottomley, L.

Milner of Leeds, L.

Brockway, L.

Mishcon, L.

Brooks of Tremorfa, L.

Molloy, L.

Carmichael of Kelvingrove, L.

Monson, L.

Cledwyn of Penrhos, L.

Napier and Ettrick, L.

Collison, L.

Northfield, L.

Craigavon, V.

Pitt of Hampstead, L.

Darcy (de Knayth), B.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Denning, L.

Rhodes, L.

Diamond, L.

Rochester, L.

Donnet of Balgay, L.

Shackleton, L.

Elwyn-Jones, L.

Stallard, L.

Elystan-Morgan, L.

Stedman, B.

Foot, L.

Stewart of Alvechurch, B.

Gifford, L.

Stewart of Fulham, L.

Gladwyn, L.

Stoddart of Swindon, L.

Graham of Edmonton, L. [Teller.]

Stone, L.

Taylor of Blackburn, L.

Harmar-Nicholls, L.

Taylor of Mansfield, L.

Hatch of Lusby, L.

Tordoff, L.

Hooson, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Hunt, L.

Winchilsea and Nottingham E.

Hutchinson of Lullington, L.

Jeger, B.

Winterbottom, L.

NOT-CONTENTS

Abercorn, D.

Denham, L. [Teller.]

Atholl, D.

Digby, L.

Auckland, L.

Dilhorne, V.

Avon, E.

Drumalbyn, L.

Belhaven and Stenton, L.

Eccles, V.

Bellwin, L.

Elliot of Harwood, B.

Beloff, L.

Elton, L.

Belstead, L.

Faithfull, B.

Boyd-Carpenter, L.

Gibson-Watt, L.

Brabazon of Tara, L.

Gisborough, L.

Brougham and Vaux, L.

Glenarthur, L.

Cairns, E.

Gridley, L.

Caithness, E.

Hailsham of Saint Marylebone, L.

Campbell of Alloway, L.

Cathcart, E.

Halsbury, E.

Chelwood, L.

Hornsby-Smith, B.

Coleraine, L.

Hylton-Foster, B.

Colwyn, L.

Inglewood, L.

Cork and Orrery, E.

Killearn, L.

Cottesloe, L.

Kilmany, L.

Craigmyle, L.

Kintore, E.

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Lane-Fox, B.

Plant, L.

Lindsey and Abingdon, E.

Plummer of St. Marylebone, L.

Long, V.

Lucas of Chilworth, L.

Rankeillour, L.

Macleod of Borve, B.

Sharples, B.

Marshall of Leeds, L.

Skelmersdale, L.

Maude of Stratford-upon-Avon, L.

Sudeley, L.

Swinfen, L.

Merrivale, L.

Swinton, E. [Teller.]

Mersey, V.

Trefgarne, L.

Middleton, L.

Trumpington, B.

Moloson, L.

Vaux of Harrowden, L.

Munster, E.

Whitelaw, V.

Orkney, E.

Wise, L.

Pender, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.37 p.m.
Baroness Trumpington: I beg to move that the House do now resume.
Lord Denham: On the Motion that the House be resumed, it should be said, for the benefit of noble Lords who are interested in this Bill, that we shall not resume the Committee stage before 8.30.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Agricultural Holdings Bill [H.L.]
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Belstead.)
On Question, Motion agreed to.
COMMONS AMENDMENTS AND AMENDMENTS TO BE MOVED TO CERTAIN COMMONS AMENDMENTS
[References are to [Bill 110] as first printed for the Commons]

COMMONS AMENDMENTS
1 Clause 1, page 2, line 11, after ("holding") insert ("and its related earning capacity").
2 line 14, leave out (" "productive capacity", in relation to the holding") and insert (", relating to the holding—
(a) "productive capacity" ")
3 line 20, at end insert—
("; and
(b) "related earning capacity" means the extent to which, in the light of that productive capacity, a competent tenant practising such a system of farming could reasonably be expected to profit from farming the holding.").
Lord Belstead: My Lords, with the leave of the House, I beg to move that the House doth agree with the Commons in their Amendments Nos. 1 to 3 en bloc. Amendments Nos. 1, 2 and 3 introduce specific reference to "earning capacity" in relation to the productive capacity of the holding, but without preventing an arbitrator from taking account of earnings from non-farming activities as a relevant factor. This in no way changes the terms of the rent
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formula adopted by your Lordships' House on Report, but clarifies the position in relation to earning capacity.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead.)
Lord John-Mackie: My Lords, your Lordships will know that when the Bill was first brought before us it contained this provision. I do not know the nature of the persuasion or the blandishments that came from behind the noble Lord, but they succeeded in removing the provision. I have here about 36 columns of Hansard containing argument that seeks to bring it back in again. When one thinks of the amount of time, paper and everything else that has been spent to put back something which the noble Lord took out, it seems to be slightly ridiculous. However, that was what was required in the agreement between the NFU and the CLA. I should have thought that to leave it out and to say nothing about earnings would have simply broken the pact that was made between the two bodies.
Perhaps I may show how necessary it is to include this provision. At the Report stage in another place it was said that because of the milk quota a situation could arise today in which a landlord who has let a farm as a dairy farm is told by a tenant, "I have been very badly hit by this milk quota and will not manage to make a profit in milking cows, so I want to go out of dairy farming". If the landlord refuses that request, a very difficult situation will arise. Not many cases such as that will arise, but they could. It is absolutely essential that this provision is included, and we are glad that ultimately the Government gave way and put it back in the three amendments which the noble Lord has just moved.
Lord Northfield: My Lords, when Ministers have to eat their words it is very often astonishing how they lack any sense of contrition. I suppose they always say, "It only goes to show how much we have listened to your Lordships". But in this particular case the change of mind has been quite dramatic. This issue was raised by the noble Earl, Lord Caithness, on 22nd November in the Committee proceedings. At col. 1 7 I of Hansard he said:
"The Bill should make it clear to all laymen that in assessing the rent to he paid the arbitrator must look not only at what the farm is doing in the hands of a competent tenant but what it might do in the hands of a similarly skilled farmer who might farm it in a more profitable manner".
The noble Earl was talking about the earning potential of the holding when he made that speech; but the noble Lord, Lord Belstead, said, "This is terribly dangerous heresy; it is radical nonsense." He said that this would leave it open for the rent to be assessed on the basis of the farmer using extreme methods—he used the phrase "any methods"—which would make the farm more profitable.
Of course, that is precisely what it will do. It will introduce more of the free market, which the noble Lord has been resisting throughout. I am astonished that my noble friend Lord John-Mackie is so fond of this. It will bring into the rent assessment the issue of what the farmer could do if he wished, if he had more capital, or whatever, to make the farm more

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profitable. That issue must be taken into account when assessing the rent.
The noble Earl, Lord Caithness, was strong in his recommendation. It is sad that he has been nobbled and made a Minister so that he cannot be present tonight to say how delighted he is that his Minister is now accepting what he turned down at the Committee stage of the Bill. Even the Liberal Benches and the Social Democratic Benches, which are now deserted, were united in opposing this issue at the Committee stage. Perhaps I may quote what the noble Lord, Lord Walston, said at col. 173 of Hansard on 22nd November. The noble Lord said:
"I think that it would be very wrong to have rents assessed on some theoretical potential which a well equipped, highly skilled and specialist tenant could make use of".
With great respect, that is what the amendment will now do. These issues on what the farm can produce with a suitable system of farming, undefined—because the new Section 8(4), set out in Clause 1, says:
"practising a system of farming suitable to the holding",
which might be more intensive than the present tenant's farming method—must be taken into account in fixing the rent. How right this amendment is! And with great respect, how wrong the noble Lord, Lord Belstead, was to resist exactly this amendment when it was moved at the Committee stage by his noble friend.
Lord Middleton: My Lords, earning capacity is expressed in these amendments as being related to the productive capacity of the holding, and it is particularly defined in Amendment No. 3. As we have just been reminded, the question of earning capacity was discussed in the House at the Report stage, and the view was then taken that it was not necessary to include it in the Bill. However, I can see that there might be cases when the full productive capacity of a farm might not be capable of being realised through, for example, the operation of some quota mechanism. There might be a farm with a good potato-growing potential but where the tenant could not obtain a basic acreage allotment from the Potato Marketing Board, and in that case the earning capacity might not match the productive capacity of the farm. Therefore, my own view is that this amendment is acceptable.
In speaking just now to these amendments, my noble friend the Minister satisfied me on the question of unrelated earnings, but I should be very grateful if my noble friend would clarify this point and perhaps emphasise it for me. It would be perfectly possible for there to be a holding with an earning capacity not directly related to its productive capacity. The holding might be situated near a popular tourist resort, and there might be a good earning potential from, for instance, the provision of holiday accommodation. Surely that must be relevant to the rent assessment. However, from the wording of the first three amendments, at first sight, it seems that that should be disregarded by an arbitrator. That cannot be intended. I would assume that such a factor as I have described could be caught under those very useful words "all relevant factors", if not under the words:
"the character and situation of the holding (including the locality in which it is situated)".
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I wonder whether my noble friend could give me that assurance.
Lord Belstead: My Lords, this part of Clause 1, which gave rise to many hours of debate by all of us who are taking part in this final stage of the Bill, once again brings us back to a short but important exchange of views. With respect to the noble Lord, Lord Northfield, whose expertise on these matters has been of the very greatest help in getting this Bill into shape, and with whom I usually agree, if he would look back over the previous proceedings in this House he will see that the alteration which he ascribes to the changes which the Bill has undergone in another place really has not quite had the effect that the noble Lord said it would. In other words, I am saying that when the Bill left this House it was perfectly possible for the productive capacity of the holding to be taken into account. The change which was made, and the amendments with which we are now dealing, include earning capacity as well. In another place right honourable and honourable Members felt that that change clarified the position relating to the rent formula.
Lord Northfield: My Lords, if the noble Lord would be kind enough to give way, perhaps I may ask him to look at Amendment No. 7, which was moved by the noble Earl, Lord Caithness, on 22nd November last, which was:
"leave out ("productive") and insert ("potential productive and earning")".
That is exactly what the amendment before us wishes to do, and it is one which the noble Lord turned down.
Lord Belstead: My Lords, if the noble Lord looks back at those very long debates, I think he will find that at that time my noble friend Lord Caithness was trying to include earning capacity in all its various facets. That brings me to the point which has been made by my noble friend Lord Middleton, because my noble friend is concerned that, in putting (as another place has done) earning capacity into the Bill and tying it to the productive capacity of the farm, that may throw some doubt upon the position of earning capacity when it is related to non-farming activities.
The reply which I want to give to my noble friend Lord Middleton is that, although the related earning capacity in these amendments does not include earnings from non-farming activities—for instance, tourism—activities of this sort would (as my noble friend has quite correctly divined) be one of the relevant factors which the aribtrator would be bound to take into account. The rent formula, as it is now amended, therefore spells out only the specific relevant factors which apply in every case. The effect of the formula, as amended, enables actual earnings from non-farming activities to be taken into account as relevant factors. I am very glad to have the opportunity to clarify that once and for all.
On Question, Motion agreed to.

COMMONS AMENDMENTS
4 Page 4, line 21 at end insert—
("(140A) Where under an agreement between the landlord and the tenant of the holding (not being an agreement expressed to take effect as a new contract of tenancy between

81
the parties) provision is made for adjustment of the boundaries of the holding or for any other variation of the terms of the tenancy, exclusive of those relating to rent, then, unless the agreement otherwise provides—

(a) that provision shall for the purposes of subsection (8) of this section be treated as not operating to terminate the tenancy, and accordingly as not resulting in the commencement of a new contract of tenancy between the parties; and

(b) any increase or reduction of rent solely attributable to any such adjustment or variation as aforesaid shall be disregarded for the purposes of paragraph (b) of that subsection.")

5 line 37, leave out from ("1977") to end of line 43.
Lord Belstead: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 4 and 5. These two amendments provide that adjustment of boundaries or any other variation of the terms of the tenancy (except those relating to rent) will not trigger off the start of a new three-year rent cycle unless the agreement giving effect to the changes specifically provides for it. The new Section 8(11)(d) is inadequate, and is therefore deleted. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question Motion agreed to.

COMMONS AMENDMENT
6 Clause 3, page 7, line 19, leave out from ("tenancy") to ("and") in line 20 and insert ("and derived (whether immediately or otherwise) from the interest from which that tenancy was derived").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 6. With the leave of the House, I will speak also to Amendments Nos. 21, 22, 23, 50, 51, 52 and 53. Amendments Nos. 6 and 50 provide parallel provisions in Clause 3 and Schedule 2 preventing a successor's position being weakened by the creation of a reversionary tenancy by the landlord which, on the death of the original tenant, comes between the freehold and the successor's new tenancy so as to make that tenant a sub-tenant.
Amendments Nos. 21, 22, 23, 51, 52 and 53 provide for the Agricultural Land Tribunal automatically to specify a new relevant time of up to three months where the direction is given after the original "relevant time". The definition of "prescribed period" is also amended to ensure a sufficient interval from the giving of the direction to allow a notice to be served demanding arbitration.
Moved. That this House doth agree with the Commons in the said amendment.—(Lord Belstead)
On Question, Motion agreed to.
7.53 p.m.

COMMONS AMENDMENTS
7 Page 7, line 28, leave out (" "within the meaning of Part II of the Agriculture Act 1967" ") and insert ("from "within" to the end of the paragraph").
8 Page 8, leave out lines 24 to 33 and insert—
("(3C) Schedule 3A to this Act, which specifies—

(a) kinds of occupation that are to be disregarded for the purposes of paragraph (c) of the definition of "eligible person" in subsection (2) above; and

82

(b) circumstances in which a person is deemed to be in occupation of land for those purposes;

shall have effect.").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 7 and 8, and I will speak also to Amendments Nos. 20, 24, 24A, 24B, 28, 32 and 32A. I feel I must apologise to your Lordships, because it is at this moment that the Government are asking your Lordships to agree to three amendments which the Government are hoping that the House will agree to make and send to another place, but I hope that your Lordships, after allowing me to make a brief explanation, will agree that it is in a good cause.
Amendments Nos. 7 and 8, together with 20, 24, 28 and 32, clarify the operation of the commercial unit occupancy test to ensure that a would-be successor already farming a commercial unit should not be eligible to succeed to a tenancy under Part II of the 1976 Act, or under the new inter vivos arrangements. That is probably fairly familiar ground. However, we came across a difficulty after the Bill left another place, and this is the subject of Amendments Nos. 24A, 24B and 32A.
The effect of these three new Government amendments is to amend the commercial unit occupation provisions in the new Schedule 3A to the 1976 Act—that is Amendment No. 24—and the inter vivos succession arrangements in Schedule 2 to the Bill, which is Amendment No. 32. The purpose is to cover the point that where the death of a tenant is anticipated, or where a retirement is planned under the inter vivos succession, it would be possible for a potential applicant who occupies a commercial unit to grant one of the forms of excluded tenancy or licence under paragraphs 2(1)(a) to (e) of the new Schedule 3A to somebody else, thereby ceasing to be in occupation of the land technically for a short period during which he could establish eligibility and succeed to the tenant's holding. It is to prevent that happening that these three amendments will be moved. I beg to move that this house doth agree with the Commons in their Amendments Nos. 7 and 8.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
Lord John-Mackie: My Lords, the noble Lord has raised an interesting point. It is something that could be used, as it is unfortunately in the buying of council houses, which the Government are keen on. Somebody with an elderly person in the family steps in and helps them to buy the house, in anticipation, as the noble Lord said, of the death of the tenant. It is the same picture when you come to what can he done to get the tenancy of a farm. It is a real point that has been picked out, and certainly we would support preventing this sort of thing happening. That is all I want to say about it. It is an essential thing to do, and we shall leave it at that; but one can see the difficulties that can arise in these matters.
Lord Northfield: My Lords, may I express my appreciation? This was an issue in respect of which the noble Lord was kind enough to write to me and say that the Government were having great difficulty in

83
drafting this while the Bill was before your Lordships, and he had to say that it had to wait until the Bill went to another place before they could get something on to paper. It shows how complicated it is that even then it was not quite right, and the Government have found yet another loophole that has to be stopped up.
I am grateful to the noble Lord. I can only take it on trust that all this is now right, because it is so essentially complicated in drafting that laymen would quite easily be misled. I am sure that a lot of work has gone into this, and I can only again express my gratitude that at last this point has been cleared up.
Lord Belstead: My Lords, when I said earlier that I was indebted to the noble Lord, Lord Northfield, it was no mere politeness because in the whole area of eligibility we are under the commercial occupancy rules, and we will all remember that what we managed to do in this House was to get the new definition of commercial occupancy, but we did not manage to dig into the eligibility rules at all. It was on those that the noble Lord, Lord Northfield, had done a great deal of work, and made more than one speech as the Bill was going through your Lordships' House.
I am glad that in another place we were able to bring forward these eligibility rules, but we missed this particular loophole which we are now trying to stop up by deeming. Not only has the noble Lord, Lord Northfield, been good enough to welcome this group of amendments, including Nos. 24A, 24B, and 32A, but the Agricultural Law Association was particularly anxious that the effect of the three amendments with "A" attached to them should be inserted. I therefore hope and believe that we are on the right lines.
With respect to the noble Lord, Lord John-Mackie, I am not entirely sure that we are on the same ground on these amendments as we are with council houses. There are rather different eligibility rules so far as the right to buy council houses is concerned; but I am not going to go down that road just now.
On Question, Motion agreed to.

COMMONS AMENDMENTS
9 Page 8, line 41, after ("of') insert ("any of the following persons, namely")
10 Page 8, line 42, leave out ("or of the landlord") and insert (", the landlord or the secretary of the Tribunal,")
11 Page 8, line 43, leave out from ("any") to ("determine") in page 9, line 2, and insert ("relevant land")
12 Page 9, leave out lines 8 to 11 and insert—
("In this subsection "relevant land" means agricultural land which is—

(a) occupied by any person falling within the said paragraphs (a) to (d) (whether he is, where the request is made by a person so falling, the person making the request or not); or

(b) the subject of an application made under section 20 of this Act by any such person.")

Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 9 to 12; and, with your Lordships' leave, I would speak also to Amendments Nos. 33, 34, 35 and 57. Together these amendments extend the arrangements for requests for a commercial unit
84
assessment so that all of the parties concerned in a succession application and the agricultural Land Tribunal, through its secretary, may make such a request, and to take account of the new rules on eligibility. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
13 Page 10, line 25, at end insert (", and a notice to quit within subsection (6) shall not be invalid by reason of its terminating at a date other than the end of a year of the tenancy.")
14 Clause 6, page 10, line 34, leave out ("responsibility") and insert ("responsibilities")
15 Page 11, line 21, leave out ("was") and insert ("is")
16 Page 11, line 41, at end insert—
("(6A) The following subsection shall be inserted after section 2(3) of that Act—
"(3A) For the purposes of Case B no account shall be taken of any permission granted as mentioned in paragraph (a) of that Case if the permission—

(a) was granted on an application made by the National Coal Board; and

(b) relates to the working of coal by opencast operations: and

(c) was granted subject to a restoration condition and to an aftercare condition in which the use specified is use for agriculture or use for forestry.

In this subsection "restoration condition" and "aftercare condition" have the meaning given by section 30A(2) of the Town and Country Planning Act 1971." ")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment Nos. 13, 14, 15 and 16 en bloc. These are minor drafting and technical amendments to clarify the provisions on notices to quit in relation to bad husbandry, retirement of statutory smallholders and opencast coal operations.
Moved, That this House doth agree with the Commons in the said amendments. (Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
17 Clause 11, page 14, line 14, after ("(3)") insert (", (3A)").
18 Page 14, line 24, at end insert—
("(bb) section 10(2) and Schedule 4 so far as relating to section 1(2) of the 1948 Act, section 2 of the Agriculture Act 1958 and Case H in Section 2(3) of the 1977 Act;").
19 Page 14, line 25, at end insert—
("(3A) Section 6(6A) above shall be deemed to have come into force on 1st March 1984.").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 17, 18 and 19. Amendments Nos. 75 to 87 inclusive relate to these amendments.
These are minor technical amendments and repeals consequential upon the provisions of substance in the Bill. If your Lordships wish, I can give a little more information on the various groups, but I think that that really is the case.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
20 Schedule 1, page 18, line 20, at end insert—
("Continuing eligibility of applicant
3A. In section 20(2) of that Act, for the words "that the applicant is an eligible person" there shall be substituted—

"(a) that the applicant was an eligible person at the date of death, and

(b) that he has not subsequently ceased to be such a person;".").

21 Page 19, line 24, leave out from ("to") to ("and") in line 36 and insert ("the holding at any time after the beginning of the period of three months ending with the relevant time apart from this subsection ("the original relevant time"), then—

(a) if the direction is given within that period, the Tribunal may, on the application of the tenant, specify in the direction, as the relevant time for the purposes of this and the next following section, such a time falling within the period of three months immediately following the original relevant time as they think fit;

(b) if the direction is given at any time after the original relevant time the Tribunal shall specify in the direction, as the relevant time for those purposes, such a time falling within the period of three months immediately following the date of the giving of the direction as they think fit;").

22 Page 19, line 38, after ("24(2)") insert ("—(a)").
23 Page 19, line 40, at end insert ("; and
(b) in the definition of "the prescribed period" for the words from "and the" onwards there shall be substituted the words "and—

(a) the end of the three months immediately following the relevant time; or

(b) the end of the three months immediately following the date of the giving of the direction; whichever last occurs.".").

Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 20, 21, 22 and 23, which are consequential. I have already spoken to them and I beg to move en bloc.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENT
24 Page 29, line 40, at end insert—
("7. The following Schedule shall be inserted after Schedule 3 to that Act—
"SCHEDULE 3A OCCUPATION OF LAND FOR PURPOSES OF STATUTORY SUCCESSION
Preliminary
1.—(1) In this Schedule "the occupancy condition" means paragraph (c) of the definition of "eligible person" in section 18(2) of this Act.
(2) For the purposes of this Schedule a body corporate is controlled by a survivor of the deceased if he or his spouse, or he and his spouse together, have the power to secure—

(a) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate, or

(b) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate;

that the affairs of that body corporate are conducted in accordance with his, her or their wishes, respectively.
(3) Any reference in this Schedule to the spouse of a survivor of the deceased does not apply in relation to any time when the survivor's marriage is the subject of a decree of judicial separation or a decree nisi of divorce or of nullity of marriage.
Excluded occupation
2.—(1) Occupation by a survivor of the deceased of any agricultural land shall be disregarded for the purposes of the occupancy condition if he occupies it only—

(a) under a tenancy approved by the Minister under section 2(1) of the 1948 Act or under such a tenancy relating to the use of land for grazing or mowing as is referred to in the proviso to that provision;

(b) under a tenancy for more than one year but less than two years;

(c) under a tenancy not falling within paragraph (a) or (b) above and not having effect as a contract of tenancy;

(d) under a tenancy to which section 3 of the 1948 Act does not apply by virtue of section 3B of that Act;

(e) as a licensee; or

(f) as an executor, administrator, trustee in bankruptcy or person otherwise deriving title from another person by operation of law.

(2) Paragraphs (a) to (e) of sub-paragraph (1) above do not apply in the case of a tenancy or licence granted to a survivor of the deceased by his spouse or by a body corporate controlled by him.
(3) References in the following provisions of this Schedule to the occupation of land by any person do not include occupation under a tenancy, or in a capacity, falling within paragraphs (a) to (f) of that sub-paragraph.
Deemed occupation in case of Tribunal direction
3. Where a survivor of the deceased is, by virtue of a direction of the Tribunal under section 20 of this Act, for the time being entitled (whether or not with any other person) to a tenancy of the whole or part of any agricultural holding held by the deceased at the date of death other than the holding, he shall, for the purposes of the occupancy condition, be deemed to be in occupation of the land comprised in that holding or (as the case may be) in that part of that holding.
Joint occupation
4,—(1) Where any agricultural land is jointly occupied by a survivor of the deceased and one or more other persons as—

(a) beneficial joint tenants;

(b) tenants in common;

(c) joint tenants under a tenancy; or

(d) joint licensees;

the survivor shall be treated for the purposes of the occupancy condition as occupying the whole of the land.
(2) If, however, the Tribunal in proceedings under section 20 of this Act determine on the survivor's application that his appropriate share of the net annual income which the land is, or was at any time, capable of producing for the purposes of section 18(3A) of this Act is or was then less than the aggregate of the earnings referred to in that provision then, for the purpose of determining whether the occupancy condition is or was then satisfied in his case, the net annual income which the land is, or (as the case may be) was, capable of so producing shall be treated as limited to his appropriate share.
(3) For the purposes of sub-paragraph (2) above the appropriate share of the survivor shall be ascertained—

(a) where he is a beneficial or other joint tenant or a joint licensee, by dividing the net annual income which the land is or was at the time in question capable of producing for the purposes of section 18(3A) by the total number of joint tenants or joint licensees for the time being;

(b) where he is a tenant in common, by dividing the said net annual income in such a way as to attribute to him and to the other tenant of tenants in common shares of the income proportionate to the extent for the time being of their respective undivided shares in the land.

Occupation by spouse or controlled company
5.—(1) For the purposes of the occupancy condition and of paragraph 4 above, occupation—

(a) by the spouse of a survivor of the deceased; or

87

(b) by a body corporate controlled by a survivor of the deceased;

shall be treated as occupation by the survivor.
(2) Where, in accordance with sub-paragraph (1) above, paragraph 4 above applies to a survivor of the deceased in relation to any time by virtue of the joint occupation of land by his spouse or a body corporate and any other person or persons, sub-paragraphs (2) and (3) of that paragraph shall apply to the survivor as if he were the holder of the interest in the land for the time being held by his spouse or the body corporate, as the case may be.
Ministerial statements as to net annual income from land
6. The reference in the definition of "relevant land" in section 18(6) of this Act to agricultural land which is occupied by any such person as is mentioned in paragraph (a) of that definition includes a reference to any agricultural land which is deemed to be occupied by him by virtue of this Schedule.".")

AMENDMENTS TO COMMONS AMENDMENT NO. 24
24A Line 95, at end insert—
(" (4) Where by virtue of paragraph 3 above any land is deemed to be occupied by each of two or more survivors of the deceased as a result of a direction entitling them to a joint tenancy of the land, the preceding provisions of this paragraph shall apply to each of the survivors as if the land were jointly occupied by him and the other survivor or survivors as joint tenants under that tenancy.")
24B* Line 110, at end insert—
("Deemed occupation in case of tenancy or licence granted by survivor, spouse or controlled company
(5A.—(1) Where—

(a) any agricultural land is occupied by any person under such a tenancy as is mentioned in paragraphs (a) to (d) of paragraph 2(1) above or as a licensee; and

(b) that tenancy or licence was granted by a survivor of the deceased or a connected person (or both), being at the time it was granted a person or persons entitled to occupy the land otherwise than under a tenancy, or in a capacity, falling within paragraphs (a) to (f) of paragraph 2(1);

then, unless sub-paragraph (2) below applies, the survivor shall, for the purposes of the occupancy condition, be deemed to be in occupation of the whole of the land.
(2) Where the tenancy or licence referred to in sub-paragraph (1) above was ganted by the person or persons there referred to and one or more other persons who were at the time it was granted entitled to occupy the land as mentioned in paragraph (b) of that sub-paragraph, subparagraphs (2) and (3) of paragraph 4 above shall apply to the survivor as if the land were jointly occupied by him and the said other person or persons as holders of their respective interests for the time being in the land.
(3) In this paragraph "connected person", in relation to a survivor of the deceased, means—

(a) the survivor's spouse; or

(b) a body corporate controlled by the survivor;

and for the purposes of sub-paragraph (2) above and the provisions of paragraph 4 there mentioned any interest in the land for the time being held by a connected person by whom the tenancy or licence was granted shall be attributed to the survivor.")
Lord Belstead: I beg to move that this House doth agree with the Commons in their Amendment No. 24. I have already spoken to Amendments Nos. 24, 24A and 24B, and I beg formally to move.
Moved, That this House doth agree with the Commons in their Amendment No. 24, as amended by Amendments Nos. 24A and 24B (Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
25 Schedule 2, page 20, line 10, leave out ("sixteen months") and insert ("one year, but not more than two years,").
26 Page 20, line 12, leave out from beginning to ("shall") in line 13 and insert ("the principal paragraphs of this Schedule").
27 Page 20, line 14, at end insert ("and subject also to paragraph 2A below.").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 25, 26 and 27, and, with leave, I should like to speak also to Amendments Nos. 29 to 31, 36 to 38, 40, 42 to 44, 48, 49 and 54 to 56.
These amendments improve the procedures in Schedule 2 for facilitating statutory succession on the voluntary retirement of the sitting tenant. They include extensions of the period for giving notice of retirement so that it is analogous to the timetable for notices to quit and arrangements for dealing with notices to quit given before and after the retirement notice.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENT
28 Page 20, line 39, leave out ("or, if he is, he occupies it as a licensee only").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 28. This is consequential.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
29 Page 20, line 49, at end insert—
(" "the principal paragraphs of this Schedule" means paragraphs 3 to 9 below (except paragraphs 4(9) and 5(6), which are of general application);").
30 Page 21, line 1, after ("means") insert ("(subject to paragraphs 2(4) and 2A(3) below)").
31 Page 21, line 3, at end insert—
(" "the retirement date" means the date specified in the retirement notice as the date as from which the proposed succession is to take place;").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 29 to 31 en bloc. I spoke to these amendments on Amendment No. 25.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENT
32 Page 21, line 25, leave out ("and") and insert—
(" (aa) Schedule 3A to that Act (which provides for the disregarding of certain kinds of occupation as well as specifying circumstances in which a person is deemed to be in occupation of land) shall apply in relation to the nominated successor as it applies in relation to a survivor of a deceased tenant, but subject to the following modifications, namely—

(i) references to the occupancy condition shall be read as references to the said paragraph (b),

(ii) the reference in paragraph 4(2) to section 20 of that Act shall be read as a reference to paragraph 4 below, and

(iii) paragraphs 3 and 6 shall be omitted; and")

AMENDMENT TO COMMONS AMENDMENT NO. 32
32A Line 14, after ("3") insert (", 4(4)")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 32. Amendments Nos. 32 and 32A I have already spoken to.
Moved, That this House doth agree with the Commons in the Amendment No. 32, as amended by Amendment No. 32A.—[Lord Belstead.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
33 Page 21, line 32, after ("of") insert ("any of the following persons, namely")
34 Page 21, line, 33, leave out ("or the landlord") and insert (", the landlord or the secretary of the Tribunal,")
35 Page 21, line 44, leave out ("(b)") and insert ("(aa) or (b)")
36 Page 22, line 7, leave out ("following") and insert ("principal")
37 Page 22, line 45, after ("holding") insert ("or a related holding")
38 Page 22, line 46, after ("holding") insert ("or a related holding")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 33 to 38 en bloc. These amendments are consequential and I have already spoken to them.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENT
39 Page 22, line 49, leave out from ("(e)") to end of line 50 and insert ("subject to sub-paragraph (1B) below, if at the retirement date")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 39 and, with leave, would speak also to Amendments Nos. 41, 45, 46, and 47.
Amendments Nos. 39, 41 and 45 together provide for inter vivos succession on grounds of ill-health before the tenant reaches the age of 65. Amendments Nos. 46 and 47 enable a landlord to contest an application for inter vivOs succession on the grounds of greater hardship. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
40 Page 23, line 10, at end insert—
("(1A) In sub-paragraph (1)(d) above "related holding" means in relation to the holding, any agricultural holding comprising the whole or a substantial part of the land comprised in the holding.").
41 Page 23, line 10, at end insert—
("(1B) The principal paragraphs of this Schedule are not excluded by sub-paragraph (1)(e) above if the retirement notice is given on the grounds that—

(a) the retiring tenant or (where the notice is given by joint tenants) each of the retiring tenants is or will at the
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retirement date be incapable, by reason of bodily or mental infirmity, of conducting the farming of the holding in such a way as to secure the fulfilment of the responsibilities of the tenant to farm in accordance with the rules of good husbandry; and

(b) any such incapacity is likely to be permanent; and that fact is stated in the notice.").

42 Page 23, line 11, leave out ("following") and insert ("principal").
43 Page 23, line 20, at end insert—
("(3) If on the date of the giving of the retirement notice the tenancy is the subject of a valid notice to quit given before that date and including a statement that it is given for any such reason as is referred to in Case B, D or E in section 2(3) of the 1977 Act (not being a notice to quit falling within sub-paragraph (1)(c) above), the principal paragraphs of this Schedule shall not apply unless one of the events referred to in sub-paragraph (4) below occurs.
(4) Those events are as follows—

(a) it is determined by arbitration under the 1948 Act that the notice to quit is ineffective for the purposes of section 2(3) on account of the invalidity of any such reason as aforesaid; or

(b) where a counter-notice is duly served under section 4(2) or (3) of the 1977 Act—

(i) the Tribunal withhold consent to the operation of the notice to quit, or

(ii) the period for making an application to the Tribunal for such consent expires without such an application having been made;

and where one of those events occurs the relevant period shall for the purposes of this Schedule be the period of one month beginning with the date on which the arbitrator's award is delivered to the tenant, with the date of the Tribunal's decision to withhold consent, or with the expiry of the said period for making an application (as the case may be).
Notices to quit restricting operation of Schedule
2A.—(1) If the tenancy becomes the subject of a valid notice to quit given on or after the date of the giving of the retirement notice (but before the Tribunal have begun to hear any application by the nominated successor under paragraph 4 below in respect of the retirement notice) and the notice to quit—

(a) falls within Case C in section 2(3) of the 1977 Act and is founded on a certificate granted under section 2(4) of that Act in accordance with an application made before that date; or

(b) falls within Case F in section 2(3);

the retirement notice shall be of no effect and no proceedings, or (as the case may be) no further proceedings, shall be taken under this Schedule in respect of it.
(2) If the tenancy becomes the subject of a valid notice to quit given on or after the date of the giving of the retirement notice (but before the Tribunal have begun to hear any application by the nominated successor under paragraph 4 below in respect of the retirement notice) and the notice to quit—

(a) includes a statement that it is given for any such reason as is referred to in Case Bin section 2(3) of the 1977 Act; or

(b) includes a statement that it is given for any such reason as is referred to in Case D in section 2(3) and is founded on a notice given for the purposes of that Case before that date;

the retirement notice shall be of no effect and no proceedings, or (as the case may be) no further proceedings, shall be taken under this Schedule in respect of it unless one of the events referred to in sub-paragraph (3) below occurs.
(3) Those events are as follows:—

(a) it is determined by arbitration under the 1948 Act that the notice to quit is ineffective for the purposes of section 2(3) on account of the invalidity of any such reason as aforesaid; or

(b) where a counter-notice is duly served under section 4(2) or (3) of the 1977 Act—

(i) the Tribunal withhold consent to the operation of the notice to quit; or

(ii) the period for making an application to the Tribunal for such consent expires without such an application having been made;

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and where one of those events occurs, and the notice to quit was given before the time when the relevant period would expire apart from this sub-paragraph, that period shall for the purposes of this Schedule expire at the end of the period of one month beginning with the date on which the arbitrator's award is delivered to the tenant, with the date of the Tribunal's decision to withhold consent, or with the expiry of the said period for making an application (as the case may be).
(4) For the purposes of this Schedule an application by the nominated successor under paragraph 4 below which is invalidated by sub-paragraph (1) or (2) above shall be treated as if it had never been made.").
44 Page 23, leave out lines 23 to 28 and insert ("any notice to quit the holding or part of the holding given to the tenant thereof (whether before or on or after the date of the giving of the retirement notice), not being a notice to quit falling within any provision of paragraph 2 or 2A above.").
45 Page 24, line 3, at end insert—
("(2A) If the retirement notice includes a statement in accordance with paragraph 2(1B) above that it is given on the grounds mentioned in that provision, then, before the nominated successor's application is further proceeded with under this paragraph, the Tribunal must be satisfied—

(a) that the retiring tenant or (as the case may be) each of the retiring tenants either is or will at the retirement date be incapable, by reason of bodily or mental infirmity, of conducting the farming of the holding in such a way as to secure the fulfilment of the responsibilities of the tenant to farm in accordance with the rules of good husbandry; and

(b) that any such incapacity is likely to be permanent.").

46 Page 24, line 21, after ("shall") insert (", subject to subparagraph (5A) below,").
47 Page 24, line 22, at end insert—
("(5A) The Tribunal shall not give such a direction if, on an application made by the landlord, it appears to the Tribunal that greater hardship would be caused by giving the direction than by refusing the nominated successor's application under this paragraph.").
48 Page 24, line 27, after ("application") insert ("by the nominated successor").
49 Page 24, line 32, at end insert ("for a direction").
50 Page 25, line 13, leave out from ("tenancy") to ("and") in line 14 and insert ("and derived (whether immediately or otherwise) from the interest from which that tenancy was derived").
51 Page 25, line 38, leave out from second ("the") to end of line 41 and insert ("retirement date, except that—

(a) where such a direction is given within the period of three months ending with the retirement date, the Tribunal may, on the application of the tenant, specify in the direction, as the relevant time for the purposes of this paragaph, such a time falling within the period of three months immediately following the retirement date as they think fit;

(b) where such a direction is given at any time after the retirement date, the Tribunal shall specify in the direction, as the relevant time for those purposes, such a time falling within the period of three months immediately following the date of the giving of the direction as they think fit;

and any time so specified shall be the relevant time for those purposes accordingly.").
52 Page 26, line 10, leave out ("the end of') and insert ("—(a) the end of the").
53 Page 26, line 11, at end insert—
("; or
(b) the end of the three months immediately following the date of the giving of the direction;
whichever last occurs.").
54 Page 26, line 18, leave out from ("after") to end of line 19 and insert ("giving the retirement notice.").
55 Page 26, line 23, after ("and") insert ("no proceedings, or (as the case may be)").
56 Page 26, line 30, after ("above,") insert ("but before the relevant time (within the meaning of that paragraph),").
57 Page 27, line 16, leave out from first ("reference") to end of line 17 and insert ("in the definition of "relevant land" to agricultural land which is occupied as mentioned in paragraph (a) of that definition included a reference to agricultural land which is deemed to he occupied by the nominated successor by virtue of this paragraph.").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 40 to 57 en bloc. These amendments are consequential on amendments to which I have already spoken. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
On Question, Motion agreed to.

COMMONS AMENDMENTS
58 Page 30, leave out line 34.
59 Page 30, line 36, leave out ("and") and insert—
("(aa) for the words from "for the supply" to "the Minister" there shall be substituted the words "executed on the holding for the purpose of complying with the requirements of a notice under section 3 of the Agriculture (Safety, Health and Welfare Provisions) Act 1956 (provision of sanitary conveniences and washing facilities)"; and")
60 Page 31, leave out lines 7 to 12 and insert (", in paragraph (a), after the word "fixture" there shall be inserted the words "(of whatever description)".")
61 Page 31, line 13, leave out first ("subsection") and insert ("subsections")
62 Page 31, line 14, at end insert—
(" "(4AA) Subsection (1) of this section applies to a fixture whether it was affixed to the holding for the purposes of agriculture or not; but this section shall not be taken as prejudicing any right to remove a fixture that subsists otherwise than by virtue of this section.")
63 Page 31, line 44, leave out ("(1)")
64 Page 31, line 45, after ("etc.)") insert ("—
(a) in subsection (1),")
65 Page 32, line 2, at end insert ("; and
(b) at the end of subsection (2) there shall be added the words "; and any person so appointed may, on production of evidence of his appointment, enter the holding at all reasonable times for the purpose of making any such record." ")
66 Page 34, leave out lines 5 to 8.
67 Page 34, line 13, leave out ("that date, for those purposes,") and insert ("31st December 1900, for the purposes of his trade or business as a market gardener,")
68 Page 34, line 43, leave out (" "six" ") and insert (" "eight" ")
69 Page 34, line 48, at end insert—
("18A. — (1) Section 77 of that Act (arbitrations under the Act) shall be amended as follows.
(2) In subsection (1), for the words "the Sixth Schedule to this Act" there shall be substituted the words "any order under this section, together with the provisions of the Sixth Schedule to this Act (as for the time being in force)".
(3) The following subsections shall be substituted for subsections (2) to (4) —
"(2) The Lord Chancellor may by order make provision as to the procedure to be followed in, or in connection with, proceedings on arbitrations under this Act.
(3) An order under this section may in particular—

(a) provide for the provisions of the Sixth Schedule to this Act, exclusive of those mentioned in subsection (4) of this section, to have effect subject to such modifications as may be specified in the order;

(b) prescribe forms for proceedings on arbitrations under this Act which, if used, shall be sufficient;

(c) prescribe the form in which awards in such proceedings are to be made.

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(4) An order under this section shall not make provision inconsistent with the following provisions of the Sixth Schedule, namely paragraphs 1 to 5 and 10 to 12, the proviso to paragraph 13, and paragraphs 17, 19, 20A, 20B and 24 to 28.
(5) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section "modifications" includes additions, omissions and amendments." ")
70 Page 35, leave out lines 4 and 5.
71 Page 36, line 39, leave out sub-paragraph (2) and insert—
("(2) The following sub-paragraph shall be inserted after paragraph 1(1)—
"(1A) Any such appointment by the Minister shall be made by him as soon as possible after receiving the application; but where the application is referable to a demand for arbitration made under section 8 of this Act any such appointment shall in any event not be made by him earlier than four months before the next termination date following the date of the demand (as defined by section 8A(2) of this Act).".")
72 Page 38, line 7, at end insert—
("The Opencast Coal Act 1958 (C. 69)
28A. In section 24(6) of the Opencast Coal Act 1958 (tenant's right to compensation for improvements etc.), in proviso (b), for each of the words "four" and "five" there shall be substituted the word "eight".")
73 Page 39, line 29, after ("appointed") insert ("by agreement between the parties, or (in default of such agreement) an application may be made under paragraph 1 of Schedule 6 to that Act for the appointment of an arbitrator,")
74 Page 39, line 33, leave out from ("for") to end of line 35 and insert ("the making of any such appointment by agreement or application as is there mentioned or, where any such appointment or application has been duly made," ")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 58 to 74 en bloc. With leave, I speak to Amendments Nos. 59 to 74.These are minor technical amendments to improve the working of the existing legislation in relation to the removal of fixtures, powers of entry, time limit for settlement of claims and procedure on arbitrations.
Moved, That this House doth agree with the Commons in the said amendments.—Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
75 Schedule 4, page 42, line 13, column 3, at beginning insert ("In section 1(2), the words from" of Agriculture "to" "the Minister") ")
76 Page 42, line 17, column 3, leave out from ("it,") to ("and") in line 19.
77 Page 42, column 3, leave out lines 36 and 37 and insert ("Section 91.")
78 Page 42, line 48, column 3, leave out ("paragraph 28.") and insert ("paragraphs 15, 27 and 28.")
79 Page 42, line 48, at end insert—

("14 & 15 Geo. 6. c. 18.

The Livestock Act 1951.

In Section 1(2)(b), the words from "in paragraph" (where first occurring) to "1948".

4 & 5 Eliz. 2. c. 49.

The Agriculture (Safety Health and Welfare Provisions Act 1956.

Section 3(10)

6 & 7 Eliz. 2. c. 71.

The Agriculture Act 1958.

Section 2.")

80 Page 43, line 14, column 3, leave out ("to "1967" ") and insert ("onwards")
81 Page 43, line 18, column 3, at end insert (", and in Case EI the word "appropriate", in the first two places where it occurs, and the words from "In this Case" onwards.")
82 Page 43, line 23, column 3, leave out ("paragraph 5(2)") and insert ("paragraphs 1(2) and (6) and 5(2), and in paragraph 5(3) the words from "for "section 25(1)" "to" and".")
83 Schedule 5, page 44, line I, after second ("Act") insert ("—

(a) subsection (5) shall, in relation to any time before the commencement of this Act, have effect with the substitution for the words from "as a result" to "grant or assignment" of the words "the holding or a related holding became let under a new tenancy thereof granted by the landlord, with the agreement of the outgoing tenant, to a person who, if the outgoing tenant had died immediately before the grant,"; and

(b)")

84 Page 44, leave out lines 8 to 14.
85 Page 44, line 31, at end insert—
("(bb) subsection (6A) applies to notices to quit given after the commencement of that subsection, but does not affect any such notice which took effect before the date on which this Act is passed;")
86 Page 46, line 5, at end insert—
("Forms for arbitrations
13A. Any form specified in pursuance of paragraph 15 or 27 of Schedule 6 to the 1948 Act and in force immediately before the commencement of this Act shall have effect as if prescribed by an order under section 77 of that Act, as amended by paragraph I 8A of Schedule 3 to this Act, and may be varied or revoked accordingly.")
87 Page 46, line 7, at beginning, insert—
(".—(1) In paragraph 1 (1A) of Schedule 6 to the 1948 Act, as amended by paragraph 28(2) of Schedule 3 to this Act, the reference to an application which is referable to a demand for arbitration made under section 8 of that Act shall not extend to an application made before the commencement of this Act.
(2)")
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 75 to 87 en bloc. These amendments are consequential on Amendment No, 17, to which I have already spoken. I therefore beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead)
Lord John-Mackie: My Lords, I wish to make the point that along with the Bill I received some corrections to the Bill. One of the corrections states:
"Page 20, line 14, "the" should read "his".
I have a family of two girls who do not like the word "his", but would prefer "his or hers".
Lord Northfield: My Lords, before we part with these Commons Amendments I should like to ask the Minister whether he is now satisfied that in the proceedings in another place all the points we talked about but could not finally draft, or agree upon terms of drafting, have now been picked up in the Commons? There were so many under the heading of eligibility, retirement, and so on, where we were breaking new ground that I must confess that at the end of the proceedings I was not sure whether we had finally buttoned everything up. Is the Minister fairly happy to say that everything was picked up, so far as he now knows?
Lord Belstead: The answer, my Lords, particularly on retirement and eligibility, is that there is no question about it. I think the noble Lord will have recognised the points as we have been going through the list. I think that all the points that the Goverment expected would be picked up were indeed picked up. In addition to those two areas, there is the matter of the rent formula. We have discussed this already and

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I think the noble Lord will feel that another place gave their view and that view we have now agreed with.
My answer to the noble Lord, Lord John-Mackie is that I have always been told that when "his" instead of "hers" is used, or "he" instead of "she", under the Interpretation Act of the last century the masculine embraces the feminine.
Lord Middleton: Before we finish, may I from this side of the House add my comments to those of the noble Lord, Lord Northfield, who, a few minutes ago, expressed gratitude for the drafting work done in respect of Clause 3 and its related schedule. The agricultural industry as a whole should be grateful to the noble Lord, to his department and to the draftsmen for the immense amount of work that has gone into the drafting of the whole of the Bill and the very many amendments. It is enough to ask for certain things to be put into a Bill, but it is quite another issue to express those matters properly in legal form. The great length and the complexity of these amendments are sufficient witness.
Lord Belstead: My Lords, I should like to express my thanks to all noble Lords for taking part in this final stage—I trust it is the final stage—in your Lordships' House. I thank my noble friend Lord Middleton for what he has said. His words will be appreciated by those who have worked officially on this comparatively short but extremely complicated Bill.
On Question, Motion agreed to: Bill returned to the Commons.
The Earl of Swinton: My Lords, I beg to move that this House do now adjourn during pleasure until half past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.11 to 8.30 p.m.]

Police and Criminal Evidence Bill
House again in Committee on Clause 8.
Lord Inglewood Lord Inglewood moved Amendment No. 51:
Page 10, line 32, at end insert—
("() A warrant under this section may authorise persons to accompany any constable who is executing it.,")
The noble Lord said: I think I am right in saying that this sentence, or something very similar, was included in a version of this Bill. I feel that it would be an improvement if we could put back words to this effect, if not in this clause, then at least in another place, or in more than one place in Part II. The reason is very simple: a man who is named or who is known simply as "any constable" can normally execute a warrant, but there are many occasions when there is an advantage in two men executing a warrant because even if the constable is not anticipating great trouble, he would prefer a witness. It is a great waste of police power that you should have your witness drawn from the very limited number of available police constables.
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There could again be an advantage in having a second person who had knowledge of the districts where they were going and, furthermore, of the technical business which lies behind the offence and the warrant: for example, where accounts are likely to be found in a house and where the man accompanying the constable would probably have much greater knowledge than the others in sorting very rapidly through accounts and deciding which ones to take away and which have no value. I hope, therefore, that the Minister will tell me that there could be advantages—not on every occasion—where an authorised person is named in order to go with a constable to execute a warrant. I beg to move.
Lord Elton: The noble Lord is entirely right about the desirability of somebody being able to accompany the constable on certain occasions. His amendment woud make that possible under Clause 8. But Clause 16(2) already contains this provision and applies to any warrant, including Clause 8 warrants. So the provision he wants is there—as he put it, elsewhere in the Bill—and the constable can be so accompanied. I hope he will find that that is a reassurance.
Lord Inglewood: I think that what the noble Lord has said meets my amendment. Clause 16(2) says:
"Such a warrant may authorise persons to accompany any constable who is executing it."
I presume that it is the police who give the authority and that if they were not sworn-in special constables, they would be authorised by the police. Perhaps the noble Lord can help on that point.
Lord Elton: If the noble Lord will bear with me, I think that the reassurance I may give him in this case may be qualified by terms which I cannot exactly detect at the moment. The authority is given not by the police, but by the warrant. It will enable anybody to go with the police provided he is authorised by the warrant.
Lord Inglewood: It is written on the warrant and the police can ask for that person. I thank the Minister very much. In view of the circumstances, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 52 not moved.]
On Question, Whether Clause 8 shall stand part of the Bill?
Lord Houghton of Sowerby: I wish to raise a matter on Clause 8. The noble Lord the Minister will not be surprised to know that I am going to relate it to what we did recently in regard to Clause 17 of the Video Recordings Bill, which provides for powers of entry, search and seizure. It seems to me, from what study I have been able to give to the matter, that there are two categories of entry, search and seizure. One is the more complex, difficult probe into possible fraudulent activities and so on, which appears to be covered by Clause 8. This provides for the conditions to be satisfied in the event of reasonable grounds for believing that a serious arrestable offence has been committed. The noble and learned Lord, Lord Denning, in quoting from the supplement to the report

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of the Royal Commission, suggested to me that the other kind of entry, search and seizure is for prohibited goods and that apparently a whole string of Acts of Parliament provide for this form of remedy in regard to offences, as in the cases of the Obscene Publications Act 1959 and the Video Recordings Bill of last week, which has not yet in fact passed its final stages in Parliament.
What we provided for in Clause 17 of the Video Recordings Bill had nothing to do with "a serious arrestable offence". It was concerned with in certain circumstances having merely trading activities in prohibited goods or outlawed goods; for example, an unclassified video tape. Clause 17 does not even provide for evidence to be given to the magistrate by a constable. It says merely:
"If a justice of the peace is satisfied by information on oath that there are reasonable grounds for suspecting".
It does not even say from whom the evidence on oath might come, but one presumes that it is from a constable. I can quite see that some of the enormous problems, lengthy searches and ransackings of homes and offices that can take place in some cases will probably not apply to the more straightforward and simple case of going in to see whether there are prohibited articles.
But in the case of prohibited articles it does not end there. The noble Lord will remember that I wanted to include in the Video Recordings Bill, in regard to going in to search and seize, a stipulation that there should be some definition of what might be seized. I wanted to restrict it to the prohibited articles, such as unclassified video tapes; but, no, Clause 17 of the Video Recordings Bill states:
"17(2) A constable entering or searching any premises in pursuance of a warrant under subsection (1) above may use reasonable force if necessary and may seize anything found there which he has reasonable grounds to believe may be required to be used in evidence in any proceedings for an offence under this Act").
In debate it emerged that they might be looking for trading records. The prohibited goods might not be on the premises at all. It may be that what they may be searching for would be evidence of transactions in video tapes which fell within the offences defined in that Bill.
It seems to me that the two types of entry and search and seizure cannot be differentiated by saying that those covered by Clause 8 of the Bill now before us are the important and complicated kind where the military operations may be mounted, and all the rest of it, and the others littered about in various statutes are the simple kind, where you just go in and smell, or look or whatever and take it out. It is not as simple as that: yet, as I understand it, the provisions of Clause 8 need not apply to seizure undertaken under Clause 17 of the Video Recordings Bill and other similar provisions in Acts which are already on the statute book.
So I now turn to Clause 8(4) which says:
"The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred."
The noble and learned Lord, Lord Denning, said a few moments ago that he was glad to see that there, because what that did was to protect all the provisions of Acts of Parliament which allowed for entry and
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search and seizure of prohibited articles. My noble friend Lord Elystan-Morgan said that he wanted to protect the right to go to a magistrate to get a warrant for that kind of entry but that he wanted to safeguard the more complex, difficult and sensitive kind of raid and entry by going to a circuit judge.
So we are going to have two lots of authorisations of seizure: one by a circuit judge for difficult cases, so-called, and one by a magistrate for the more simple and straightforward cases. I should imagine, as a matter of fact, that the more complex ones would be on the people of weight and power and the others would be on the simple citizen or the small businessman. I reckon that they would be divided very much into those two categories.
However, what does it mean under subsection (4) when it says:
"The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred"?
Does it mean that it is not in substitution for that? I thought that we were getting in this Bill a standardisation of practice. Complaints were made during the Second Reading of this Bill that there were too many statutes containing provisions for powers of the police and it was desirable to get them all, or as many as possible, into this comprehensive and historic Act when it reaches the statute book.
It seems to me that we are leaving a very wide range of cases of entry and seizure which are not going to be protected at all by this Bill, unless the Ministry are going to assure me that the provisions of Clauses 15 and 16, for example, are going to apply to all cases under any statute and not only under this one. It seems strange to me that we should differentiate between one type of break-in, ransacking and seizure, and another. Why should we have different conditions for them? Why should not Clause 8 apply to the lot? Why should it not replace all the provisions in all other Acts of Parliament (apart from revenue cases probably, which are of a different type altogether) certainly as regards a search for prohibited articles and some other things?
I am very confused. I think there are two standards here somewhere and I have done my best to expose what they are. I have said so many harsh things about the Video Recordings Bill that I hate to repeat any of them—my vocabulary has run out—but we are sticking this in a Bill which is before Parliament at the present time. We were debating this only last week, and it is an extraordinary thing that the speech I have heard from my own Front Bench tonight on the general question and the principle of the matter was strangely absent when we were dealing with video recordings. Oh yes: we did not hear it then. What we heard was quoted extensively by the noble Lord in reply to the amendment only a few moments ago. At least one can say that there are two sets of values, two voices on my own Front Bench and confusion all round. So I now look to the Minister to clear it all up.
Lord Elton: I am sure we shall be in stereo before we have finished; but I think the noble Lord, Lord Hooson, wants to speak.
Lord Hooson: I am most grateful to the noble and experienced parliamentarian, Lord Houghton of

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Sowerby, who I would guess has rescued me from an unfortunate absence. I apologise to your Lordships that I did not get back to my place in time, because your Lordships have proceeded with greater despatch than was apparent before we adjourned for dinner. I have given notice, together with my noble friend Lord Hutchinson of Lullington, that we would oppose clause stand part on Clauses 8 to 14 inclusive. I indicated during my speech on Second Reading why that was so. In a very complicated Bill, in my submission, Clauses 8 to 14 are the most complicated of all. This is the most complex and least readily intelligible part of the whole Bill.
If your Lordships will look at the construction of this part of the Bill, Clause 8 gives power to apply to a justice of the peace for a search warrant to search premises. Clause 9 provides that access can be obtained to excluded material or special procedure material by a special procedure laid down in Schedule 1, which is virtually an application under certain very strict terms to a circuit judge. Clause 10 defines "excluded material", and that is a clause of considerable complication. Clause 11 defines the meaning of "items subject to legal privilege". That again is a clause of complications. The meaning of "personal records" is defined in Clause 12. In Clause 13 we have a definition of the meaning of "journalistic material".
This is highly complex. This Bill was intended to simplify the law, to make it clear to the constable on the beat and the lay magistrates what powers there were and how they were going to be defined, and so on. It is small wonder that the Association of Chief Officers of Police, in a memorandum they have sent around to a number of your Lordships, heavily criticise this part of the Bill. Let me point out that the noble and learned Lord, Lord Denning, who is in his place, has already made the most valuable contributions to our debates, and on the last matter mentioned the evidence given by the chief officers of police to the Royal Commission. They were seeking a new power, which is the power to obtain search warrants to search for evidence. The words used—and I think the noble Lord, Lord Elystan-Morgan, quoted them in his speech—were: "the right to search for evidence." It was the confusion between the term "evidence" and material that would help in a criminal investigation that has clouded the whole issue on this part of this Bill.
In the criticisms, which I do not think have been met at all, the chiefs of police said:
"The power to search for evidence should be so designed as to attract solely those items which can be adduced by a police officer who has seized them".
That is a very simple principle. What the chiefs of police wanted, in the evidence that they gave to the Royal Commission, was the right to search premises occupied by a third party—very often, an innocent party. For example, if I may take what I suggest would be the kind of circumstance, one could ask a friend to keep a case on his premises. The police might have information that within the case was contained a revolver which had been used in a bank robbery. That would be very important evidence, and it is a matter of common sense that, if they had that information, the
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police should be allowed to search those premises to look for that evidence.
The truth is that when this part of the Bill was drafted in the first Bill which came before Parliament, prior to the general election, it attracted an enormous amount of criticism, because priests, doctors and journalists were all concerned about the search of their premises and what use might be made of material which, in normal human relationships in a civilised society, has always been regarded as confidential.
The chief officers of police—and I make no apology for quoting them, because they argued this matter on paper as cogently as anybody could—said:
"The original proposals were designed to provide a power for the police to search for and obtain evidence, such as a murder weapon, bloodstained clothing or even a dead body which is concealed in premises or held by some third party, whether innocent or not, and including such matters held on an undertaking of confidence".
They added:
"There has never been a suggestion that the police should have a power to examine confidential records, such as those held by doctors or priests, nor has it been proposed that police should have a power to seize such items".
What happened was that having started on the wrong route the Home Office produced, with the aid of the draftsman, a Bill on certain principles which the chiefs of police did not want at all. It widened the ambit of what was proposed so that they could search—and here I am quoting Clause 8(1)(b)—for
"material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence".
This is something totally different. It has never been envisaged that they would have the right to search for that kind of information.
After all, the noble and learned Lord, Lord Denning, reminded us of the judgment in the John Wilkes case in the 18th century. I cannot remember who was the learned judge who dismissed the matter and, in a very famous judgment, pronounced that there was no right under our law to search premises to look for incriminating material, with no grounds at all for that kind of investigation. The police, quite rightly, point out they should in common sense have the right to apply for a warrant and to search premises where they have reason to believe that a serious arrestable offence has been committed and that evidence is available; or where they have reasonable grounds for thinking that it is on the premises of a third person it is right that they should have the right to search the premises to find that evidence. But the whole matter has been complicated by the way in which this part of the Bill was drawn up in the first place.
I have spoken about the complication of this part to a number of police officers, and I was recently lecturing to a group of inspectors. Without exception, they were very alarmed by this part of the Bill. The noble Lord the Minister knows that the chiefs of police asked the Home Office to reconstruct the whole of this part, and the Home Office refused to do so. The reason why my noble friend Lord Hutchinson and I gave notice that we would oppose the clauses standing part of the Bill was to give the Home Office a chance to think again.
I know that it is very late in the day, but looking at this power under Clause 8, and going on to Clause 14,

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it is highly complicated. It is said that the ordinary constable must understand it. He has to make an application, he has to be authorised in certain instances by an inspector, and so on. But he has to know the meaning of personal records, of journalistic material and of excluded material, before he determines which way he will apply—whether to a circuit judge, a magistrate, and so on. It is my submission that, in the interests of the police as well as of the public, we all ought to know what these powers are. They ought to be drafted as simply as possible. Indeed, the chief officers of police suggested that the provisions of Clauses 8 to 14 should be deleted and that a further attempt should be made to produce a power to search for evidence, as originally envisaged in the evidence given to the Royal Commission and subsequently recommended by their report. That must be right.
Also there is an important viewpoint which I should like to express on behalf of the public. It would be quite wrong for a lay magistrate to act as a rubber stamp in these proceedings, and I am sure that the noble Lord will entirely agree with me on that. Nevertheless, what the magistrate has to consider—no doubt, approached ex parte in his or her house—are the very complication provisions of this part of the Bill. Very often, he will not have them to hand, and they will he put before him. He can no doubt be assured immediately that a serious arrestable offence has been committed, and so on; but the remaining requirements are an enormous burden to thrust upon a lay magistrate.
I know that the noble Lord told me on Second Reading that the chiefs of police are now satisfied, but I do not accept that. Of course, I accept the statement that there must have been an indication that they were no longer, as it were, pursuing their objection. But the truth is that their detailed criticisms, which I found the most cogent criticisms of the Bill that I received from anybody, have not been met and that the criticisms remain. So it is up to this Committee to do what it can to put that matter right. I know that the noble and learned Lord, Lord Elwyn-Jones, and his colleagues have tried to amend this part of the Bill to make it more acceptable, to make more sense of it, to try to simplify it, and so on. But the truth is that the whole of this part of the Bill needs to be reconstructed on the simple principle that the Minister should go back to what the police officers wanted in their evidence to the Royal Commission.
Lord Hutchinson of Lullington: I should like to support this Motion. I suggest to your Lordships that the Minister was far too blasé, too dismissive and too bland when he replied earlier this evening to the last amendment about the complexity of what the magistrates will be asked to do under this part of the Bill. They are asked to make decisions, first, in privacy, alone with a police officer in their rooms, on matters which I suggest no lay person should be asked to decide. As your Lordships have seen, over and over again they will have to make decisions on difficult matters of law. They will have to have their clerk with them. There will be a threesome in that private room. The clerk in a large number of cases will make the decision. The lay magistrate will naturally have to
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depend upon the clerk when it comes to questions of law.
As has already been pointed out, the majority decision of the Royal Commission was that there should be a substantial extension of the powers of search. Although the noble Lord the Minister may quote certain Acts of Parliament which to a certain degree overlap with these broad powers, these broad powers are admitted by the Royal Commission to be an extension of the powers of search. They went out of their way to suggest that these powers should be given only with the most stringent safeguards. They suggested that there should be a right of appeal and—a point which has been lost sight of—that there should be an exclusionary rule in relation to any items which were obtained in contravention of the principle under which the powers were given. That exclusionary rule, which the Government have been against from start to finish, is that an executive discretion should be given to the police to consider whether such evidence should be excluded if they find that the rules have not been followed.
The reason why the Royal Commission were so strong about this recommendation—stronger than about any other recommendation—was the very good one that here the police are being given the power to search the premises of totally innocent people—people who are not concerned in any shape or form with the offence to which the rummaging applies. I use here a word that was used by Lord Camden who, in one of his judgments, set his face hundreds of years ago against this power. "The people of this country", he said, "are not to have their homes rummaged". The power which is given here is to rummage. As my noble friend Lord Hooson pointed out, there is a distinction between evidence to support an offence and information which will assist in the inquiries into an offence.
The noble Lord the Minister said in his very smooth, if I may say so without being offensive, reply that magistrates have done this for hundreds of years and are capable of doing it; it will be no problem for magistrates to do this, that or the other. However, let us pause for one moment and look at Clause 8(1)(b). The magistrates have to decide whether.
"there is material on premises specified in the application which is likely to be of substantial value".
Where do we find that in any of the statutes quoted by the noble Lord the Minister giving the power—
Lord Elton: Can the noble Lord tell me whether magistrates do not now consider whether it is likely that there is material which ought to qualify for a search warrant? If that is the case, why is it suddenly so much more difficult?
Lord Hutchinson of Lullington: If the noble Lord will allow me to finish, I was going to add that the qualification was if it is likely to be of substantial value, either by itself or together with other material, to the investigation of an offence. Therefore the officer says to the magistrate, "There are diaries, accounts, files in the office of this person". The magistrate has to decide whether those diaries, files and accounts are likely to be of substantial value. He will say, "They may be of value, but are they of substantial value? What will he in those diaries? Will it be of substantial

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value, together with other material, to the investigation of the offence?" "Well," says the officer, "I am investigating a big credit card fraud. I want to go into this office to find out who else is concerned in the fraud. If I examine the diaries of this person, I shall find material in them as to the associates of that person".
The magistrate will have to decide whether to allow the police to go through the whole of somebody's private diaries and private correspondence because the officer, perfectly genuinely, has said, "I think that this is a conspiracy and I want to discover who the business associates of this man are. If I can discover who are his business associates, it is very likely that I shall be able to connect them up in this fraud, which is concerned with a number of companies and associated companies, and that information will come from this material".
How on earth can a magistrate make up his mind on those matters? Quite apart from that, he will have to go on and deal with other matters. I shall not go through them all but, as your Lordships know, it is no good dismissing these other matters relating to excluded material, material held in confidence, journalistic material held in confidence, legal material which is privileged. The magistrate will not be able to push all that aside.
The magistrate will have to say, "This person's documents will largely consist—won't they, officer?—of correspondence with his solicitor, because this is a big takeover. There is bound to be correspondence in those files; won't some of that correspondence be privileged?" The officer will reply, "I shan't be able to tell you that until I have the material". Then the magistrate has to decide whether, after all that, the material is evidence.
The Committee will appreciate that all the material in the diary probably will not be evidence at all unless one can prove who was the person who wrote in the diary, and so on. The rules of evidence come into it. Most of it will be hearsay and it will depend on the
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strict rules of evidence as to whether the material in the files or in the index or in the letters is evidence or not. That will be a matter for the clerk to decide.
Speaking as a lawyer, I found this part of the Bill—and I mean it—almost incomprehensible; it is so complex and so complicated that one is constantly referring back to another phrase which is not a term of art and which is not technically a legal expression—such as "likely to be" and so on and so forth. I would submit that the only cure for this part of the Bill is to take it away and think again.
This new power of enabling the police to search for information was embarked upon in the original Bill and immediately ran into a hornets' nest because no one had appreciated that all what are called the caring professions would be up in arms, as they all were. The result is this dog's dinner of trying to get the caring professions out of the rules and surrounded by "ifs" and "buts". I would simply say to the Committee that there are people in the world other than those in the caring professions; there are caring men on the top of Clapham omnibuses. Why should they not be protected just as much as the caring professions? I suggest to your Lordships that this is a matter of the greatest possible importance, and the only answer to this part of the Bill is to take it away and have another look at it.
Lord Denning: This is virtually a re-run of the debate that we have just had. As my noble friend Lord Houghton has said, there is no doubt that in future there will be two classes of material. In the case of the first class, one will have to apply to a magistrate; in the case of the other, one will have to apply to a circuit judge. It depends on those words which say that a magistrate is not allowed to deal with matters which are subject to legal privilege, excluded material or special procedure material. There are two classes of material and the magistrates will decide whether they can deal with the matter or whether it has to go before a circuit judge. This is virtually the same question we have just been discussing; it is just a different formula.
9.12 p.m.
Lord Elton: When noble Lords and noble and learned Lords of the eminence of those to whom we have just been listening say that something is incomprehensible to them, or to magistrates, then of course I feel slightly impertinent if I pretend to understand the matter myself. I hope that I do not sound blasé, dismissive or bland if I make that clear. And if I sound conceited, it is unintentional.
I wonder whether I ought not first to set out the scheme of this part of the Bill as I see it. It would be possible to do so at length and your Lordships may challenge me, but perhaps I may offer a condensation. Under Clause 8 a magistrate has to consider whether an application made to him by a policeman—already invigilated by a senior policeman, the Committee will remember, considering the same criteria—enables him to grant a search warrant. If the premises are to be accessible in terms of a warrant granted by a magistrate, the application has to satisfy the conditions set out in Clause 8(1).
The magistrate must have reasonable grounds for believing that,
"a serious arrestable offence has been committed".
We have discussed what that is, and it is not in doubt. The magistrate has to consider,
"that there is material on premises specified in the applicaion which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence".
The noble Lord, Lord Hutchinson of Lullington, made much of the difficulty of that and went on to comment that the danger in the Bill was the way in which it brought in information as opposed to evidence, and how there was reference to this by the caring professions. Perhaps I may remind the noble Lord that the material in subsection 1(b) has to satisfy also the criterion in subsection 1(c); it is not only information, it is also relevant evidence.
If I may skip paragraph (d) for a moment, we then come to paragraph (c). That relates to the conditions in subsection (2) which between them amount to a conclusion that no other way of proceeding to get the information is satisfactory. That leaves us with the criterion in subsection 1(d) as providing, as I said—and at the stage just before dinner the noble and learned Lord, Lord Denning, predicted that I would repeat myself—that we are looking at material which is not accessible to magistrates. It falls into three types. There is "legally privileged" material, and, as I understand it, that is a term which is fairly generally understood and which is explicitly described and defined in Clause 11. There is excluded material, to which nobody can grant access. There are three categories of that. There are personal records held in confidence. There is a definition of "personal records" in Clause 12 and a definition of "held in confidence" in Clause 10(2). There are also human tissues and tissue fluids held in confidence, as well as journalistic material held in confidence, which is going to occupy our attention a little later this evening—but not much, I hope. "Journalistic material" is defined in Clause 13. That is the batch of material to which neither the magistrates nor the judge can give access.
We are then left with the third category to which the magistrates cannot give access, and that is special
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procedure material to which, as its name implies, there can be access, but only by a special procedure which is set out in Schedule 1.
There, again, in Clause 14 there is a definition of "special procedure material" and a reference to journalistic material, other than excluded material. I do not think on reflection that the noble Lord would find tremendous difficulty in Clause 14. It may be that the fact that we have here six clauses intermeshing is daunting, but the way they intermesh seems to me to be slightly less difficult than noble Lords have so far suggested.
All your Lordships have addressed yourselves to the whole part of the Bill. I take it that it was a mere oversight which the noble Lord, Lord Hooson, fell into due to the haste of his arrival here—and how glad were we to see him—that led him not to speak to the Question that the other clauses shall stand part which, I understand, it was his intention to do. We can therefore dispose of this in one debate.
Lord Hooson: I agree.
Lord Elton: This clause has grown up over a period. The noble Lord, Lord Hooson, quoted a passage from the ACPO memorandum; I shall not weary your Lordships by repeating it. He will, I am sure, remember that it was actually the middle of last year when that was drafted, that the Bill has since changed, and that the Association of Chief Police Officers has said that it can operate this part of the Bill and it thinks that it is useful.
But there were others than the police whom we had to consider when the police wondered whether this game was worth the candle. They included the caring professions, members of which noble Lords see travelling about on the Clapham omnibus. For understandable reasons, they were anxious that the matter should be put beyond doubt. At the end of the day what mattered was not the adequacy of our explanation and reassurances about the need for these safeguards, but the fact that the reassurances that we proposed failed to reassure. A climate of uncertainty developed which damaged the ability of the caring professions to do their work and the only way the matter could finally be put beyond doubt was to define which material may not be the subject of an application for access under the new procedures. That is why the Bill has become complicated, though not as complicated, I submit, as some of your Lordships suggest.
I could address myself, as I say, to large tracts of explanation. It would take 10 or 15 minutes, I think, to go in detail through this part of the Bill and the way it is applied. The only reassurance I want to give your Lordships on that is that it is possible to analyse it if one gives it the time, that policemen are trained by people who will have analysed it, and that a clear path can be drawn through it. That applies to magistrates, too. I see the noble Lord, Lord Hooson, trembling on the edge of his Bench.
Lord Hooson: I am grateful to the noble Lord for giving way. If a police officer applies for a warrant and

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finds no evidence, but rummaging through the papers finds evidence of something else, is he entitled to use that evidence?
Lord Elton: It has always been the case, as I understand it, that if a policeman is given the power to search for one incriminating object and finds another he should not turn a blind eye to it. What the law prohibits is the policeman getting a warrant to look for a generality of things. We started with Wilkes where everything was general on the warrant. There was practically just a blank sheet of paper on which names could be filled in as well as offences and articles. We have now narrowed this down so that the policeman has to apply in very precise terms. Half of your Lordships' anxiety is that the terms are so very precise in Clause 8, is it not? The policeman has to say exactly what he wants, why he wants it, the likelihood of it being there, the fact that it is not legally privileged, excluded, or special material, and so on. He must then go on to convince the magistrate that nothing else will do and that he cannot get the person to produce the evidence by any other means. That seems to me to be a strength and a reassurance and not something to alarm your Lordships.
It is true that a great many of the powers that are on the statute book and which are available to magistrates to give search warrants to police officers will remain on the statute book, and it will still be for the magistrates to decide. Those powers will not be controlled by this part of the Bill. This part of the Bill addresses itself to those matters which are thought by those concerned to be the most delicate and the most sensitive. It seems to me that it is proper that they should be protected and that the Bill should have the effect of putting those for the judgment in whom all your Lordships have said you have great confidence—that is, the circuit judge.
Lord Hutchinson of Lullington: Taking up the point made by the noble Lord, Lord Hooson, do I understand that the Minister is saying that if a police officer obtains a warrant to search in somebody's office for incriminating documents in a fraud case, and should there find evidence of pornographic books or photographs, it would then be perfectly open to the officer to bring proceedings under the Obscene Publications Act against that individual although the officer had gone there to search for fraudulent documents?
Lord Elton: I will take advice on that. If, on the other hand, the police officer was looking for incriminating documents and found a dead body I think the noble Lord will agree that he ought to do something about it. It is a question of degree.
Lord Campbell of Alloway: Before my noble friend sits down, may I ask a procedural question? He suggested that we were speaking to a whole range of clauses between Clauses 8 and 14 on clause stand part. I was rather hoping that, on the consideration of Amendment No. 61 and the associated amendments which relate to the exclusion of journalistic material,
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in that context we would approach Clause 13 stand part, to which the noble Lords, Lord Hooson, Lord Hutchinson and Lord McGregor of Durris, have set their names, in a totally free vein.
Lord Elton: My noble friend makes the agreeable and comforting supposition that the clause will be there when we get to it. We are debating clause stand part and if we lose Clause 8 much that follows will have nothing to stand on. I am sure that my noble friend will be able to address himself to as wide a consideration as he wishes in the context of that debate. I am not trying to exclude him from it in any way. What I think that most of your Lordships would wish to do is to debate, as we have, the generality of Part II once rather than eight or nine times.
Lord Mishcon: I wonder whether I might be allowed to make a short contribution. I hope in a practical way. There is anxiety. It is shared by eminent lawyers and not least. I believe, by the noble and learned Lord. Lord Denning. The anxiety is that going through the whole of this paraphernalia by way of an oral application before a magistrate will not mean a strict observance of the Act, if it becomes an Act, in the way that I believe Members of your Lordships' House would want and the noble Lord the Minister would want.
I believe that it would at least be a betterment of the Bill if the application had to be made supported by an affidavit—and it is an ex parte application, so one would be giving nothing away—which would comply with the provisions of the Bill. The police officer would have to make a written application, as it were, in the sense that the grounds would be in the affidavit, in which he would deal with the various parts of this clause, say why it was that the evidence he wanted to adduce was material and in other ways—and I need not go right the way through this—comply with the provisions of this clause.
Otherwise—and this is not meant in any way to be offensive to any magistrate; I and my noble friends join in all the things that have been said by way of praise of the magistrates, lay and stipendiary alike—we would he imposing upon a magistrate the detailed provisions of this and other clauses—but we are now dealing with this clause. The learned magistrate—and I use that title on purpose to show that I meant what I said a moment ago very sincerely—would have to go through every provision here to make sure that what was orally said complied with every one of these provisions. That is asking for something that cannot be done or will not be done in many cases.
But if we had an affidavit that complied with this clause, one can envisage that care would be taken to see that its provisions had been complied with, and the magistrate, and possibly the magistrate's clerk, would be able to check that all that was demanded by this clause had been satisfied. It is the oral application, ex parte, that I believe confuses many of us and makes us apprehensive.
Lord Elton: My noble friend—and saying that is an honest slip!—the noble Lord. Lord Mishcon, has

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kindly reminded me that of course the procedure is not exclusively oral. I refer him to page 56 of the draft codes of practice, which is already published and which will be enforceable under the disciplinary code, and remind your Lordships that:
"An application for a search warrant must be supported by an information in writing, stating:
(i) the enactment under which the application is made"—
and of course it is any application and not just one under this clause—
"ii) as specifically as is reasonably practicable the premises to be searched and the object of the search; and
iii) the grounds on which the application is made (including, where the purpose of the proposed search is to find evidence of an alleged offence, an indication of how the evidence relates to the "—
investigation.
That is a requirement also in Clause 15(2):
"Where a constable applies for any such warrant, it shall be his duty … to state",
and here are the statements that the noble Lord wants, but of course they may be made verbally. If he is suggesting that the code practice should be slightly more specific, that is another matter. But I do not think that that is a matter which ought to bring Part II of the Bill down in ruins.
Lord Mishcon: I merely reply quickly to the very helpful comments made by the noble Lord. Obviously, as he said, we are dealing now with a draft code of practice. Secondly, we are dealing with a code of practice that talks in only general terms about the grounds upon which the application is made. I hoped that the noble Lord the Minister would reply to the effect that what I had said seemed to be a practical suggestion. At least some Members of the Committee (I am not speaking beyond that) might be happier if the noble Lord the Minister would say that. These provisions are very complex. Because all of us want these conditions satisfied, then either the code of practice or (as I would prefer) the Bill itself should say that all these grounds, and not just the ones that are selected in the code of practice, should be either in a written information or, I would have hoped, in an affidavit which supports the application.
But presumably the noble Lord the Minister is not saying that, which puts some of us in a rather difficult position unless, of course—and I can go on talking for a moment or two while, if I may say so, the most nimble Baroness in the Committee manages to finish a journey which might be the envy of anyone who represents us at the Olympic Games!
Lord Elton: The noble Baroness's swift journeys first created for me an ambiguity and then resolved it. I understand that the noble Lord, Lord Mishcon, and I are in fact talking about the same thing. I understand that an affidavit is to the higher ranks of the Judiciary what an information in writing is to a magistrate. I am assured that that is right. Therefore I am happy to say that what the noble Lord has said will satisfy him is already in Clause 15(3):
"An application for such a warrant shall be made ex parte and supported by an information in writing".
Lord Mishcon: It says "supported by".
Lord Elton: I am afraid the noble Lord will have to explain further. If he does not want it to be supported by an affidavit, what is it that he wants the affidavit to do?
Lord Mishcon: Of course I want it to be in support. However, one can have an affidavit or information in support which merely says in general terms, "This is going to assist in the course of the investigation", and that supports the information. Even if the draft code of practice is carried out in full, it does not cover the whole of the provisions of this clause and all the things about which the court is supposed to be satisfied. As I said, I would have hoped that I was making a practical suggestion, but presumably it is not one that commends itself to the noble Lord.
Lord Elton: The noble Lord's suggestions usually commend themselves to me as sensible, and I am grateful for his attempt to help. I think we have perhaps gone on long enough. Of course I shall consider carefully what has been said. However, it seems to me that we have the information in writing containing in general terms a good deal of what the noble Lord wants. If the magistrate finds his case difficult, he will know what questions to ask orally. I suppose he could ask for them to be answered in writing if that was of assistance. I think we have reached as far as we can with this. I have tried to reassure the Committee. However, this part of the Bill is complex. The complexity is unavoidable. It arises from requests that have been made by those most closely affected by the provisions of the Bill.
I should add that we have closely considered whether it could not be simplified on a different basis. We have come to the conclusion that any other process would be likely to lead into other or new difficulties. In Clause 8(1) the magistrate has to be satisfied that the conditions are fulfilled. If he does not understand them, he will not be satisfied. I really think we are safe.
Lord Hooson: I should simply like to confirm what the noble Lord. Lord Elton, pointed out to me: that, of course, my noble friend and I were speaking in objection to Clauses 8 to 14, inclusive, standing part. However, we intend to divide on Clause 8 simply because we believe that this section is so complicated—complicated for the police and complicated for the magistrates—that the only way in which to deal with it is for the Home Office to take it back. Then, they could bring in a far easier and simpler construction, as they know they could have done months ago when asked to do so by chiefs of police.
9.35 p.m.
On Question, Whether Clause 8 shall stand part of the Bill?
Their Lordships divided: Contents, 64: Not-Contents, 40.

DIVISION NO. 2

CONTENTS

Abercorn, D.

Avon, E.

Atholl, D.

Belhaven and Stenton, L

Auckland, L.

Bellwin, L.

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Beloff, L.

Hailsham of Saint Marylebone, L.

Belstead, L.

Boyd-Carpenter, L.

Halsbury, E.

Brabazon of Tara, L.

Harmar-Nicholls, L.

Brougham and Vaux, L.

Hood, V.

Bruce-Gardyne, L.

Hornsby-Smith, B.

Cairns, E.

Hylton-Foster, B.

Caithness, E.

Kaberry of Adel, L.

Campbell of Alloway, L.

Kilmany, L.

Cathcart, E.

Kintore, E.

Cockfield, L.

Lawrence, L.

Coleraine, L.

Long, V.

Cork and Orrery, E.

Lucas of Chilworth, L.

Craigmyle, L.

Macleod of Borve, B.

Crathorne, L.

Marshall of Leeds, L.

Cullen of Ashbourne, L.

Maude of Stratford-upon-Avon, L.

De La Warr, E.

Denham, L. [Teller.]

Molson, L.

Dilhorne, V.

Norwich, Bp.

Elliot of Harwood, B.

Plant, L.

Elton, L.

Rankeillour, L.

Faithfull, B.

Sharples, B.

Ferrier, L.

Skelmersdale, L.

Fortescue, E.

Swansea, L.

Fraser of Kilmorack, L.

Swinton, E. [Teller.]

Gardner of Parkes, B.

Trefgarne, L.

Gibson-Watt, L.

Trumpington, B.

Gisborough, L.

Vaux of Harrowden, L.

Glenarthur, L.

Whitelaw, V.

Gridley, L.

Wise, L.

NOT-CONTENTS

Airedale, L.

Kilbracken, L.

Amherst, E.

Kilmarnock, L.

Ardwick, L.

Kirkhill, L.

Attlee, E.

Lockwood, B.

Avebury, L.

McGregor of Durris, L.

Beaumont of Whitley, L.

Mishcon, L.

Birk, B.

Molloy, L.

Blease, L.

Nicol, B. [Teller.]

Brockway, L.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Denning, L.

Stedman, B.

Elwyn-Jones, L.

Stewart of Alvechurch, B.

Elystan-Morgan, L.

Stewart of Fulham, L.

Gilford, L.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Stone, L.

Hatch of Lusby, L.

Tordiff, L.

Hooson, L.

Underhill, L.

Houghton of Sowerby, L.

Wigoder, L. [Teller.]

Hunt, L.

Winchilsea and Nottingham E.

Hutchinson of Lullington, L.

John-Mackie, L.

Resolved in the affirmative, and Clause 8 agreed to accordingly.
9.43 p.m.
Clause 9 [Access to excluded material and special procedure material]:
[Amendments Nos. 53 and 54 not moved.]
Clause 9 agreed to.
Schedule 1 [Special procedure]:
[Amendments Nos. 55, 56 and 57 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 58:
[Printed earlier: col. 65.]
The noble Lord said: I think that perhaps I should move this amendment formally and just leave it to the noble Lord the Minister to reply to it if he sees fit.
Lord Elton: I am not at all sure that I do see fit to reply to it because, although the noble Lord warned me that this was not part of the group, I had in fact assumed, wrongly, that it was and therefore the noble Lord must bear with me while I find my copy of the Bill.
Lord Mishcon: I want to do something much kinder than that. On further reflection I think that it is part of the group and, therefore, I shall save the noble Lord the Minister the need to look further at his papers. It must be part of the group and in those circumstances I hope that I can say, "not moved".
[Amendments Nos. 58 and 59 not moved.]
Schedule 1 agreed to.
Clause 10 [Meaning of "excluded materials"]:
Lord Elton Lord Elton moved Amendment No. 60:
Page 11, line 15, leave out ("held by him").
The noble Lord said: If I may, I shall also speak to Amendment No. 172 in Clause 107.
Amendment No. 172: Page 94, line 35, leave out ("held by him").
Both of these are drafting amendments which delete three superfluous words. A similar amendment to Clause 14(2)(a) was accepted in another place on Report and not reflected in the other parts of the Bill. I hope that your Lordships will agree that these two amendments will bring Clauses 10 and 107 into line with that amendment. I beg to move.
On Question, amendment agreed to.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 61:
Page II, line 19, leave out paragraph (c)
The noble Lord said: With the leave of the Committee, I should like when speaking to this amendment to refer to Amendments Nos. 62, 63 and 67.
Amendment No. 62: Page 11, line 23, leave out ("other than journalistic material").
Amendment No. 63: Page 11, line 31, leave out subsection (3).
Amendment No. 67: Clause 14, page 13, line 2, leave out from ("applies") to end of line 3.
These amendments, with the notice of intention to oppose the Question, That Clause 13 stand part of the Bill, will excise the exclusion of journalistic material from the powers of entry, search and seizure under Part II of the Bill. I shall be very brief. We are concerned here with a proffered safeguard which is wholly unacceptable to those whom it is designed to protect. Apart from this, this exclusion is objectionable in principle. It raises a serious problem of definition; it creates some new status of privilege; and I beg to suggest that the history of the origins of this exclusion, when introduced during the pre-election stage of the Bill, as it stood in 1982, may be of some interest, but it is of absolutely no consequence today.
It is immaterial whether there has been some misunderstanding or some change of view, or both. What is relevant is the situation today. For this exclusion is not acceptable to the vast majority of journalists, to at least 200 editors, to the British

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Executive of the International Press Institute, to the Association of Journalists, or to the Newspaper Society. Therefore, with respect to my noble friend the Minister, it is not to the point for him to contend, as he did on Second Reading, at col. 478, that this exclusion, which nobody wants, can be justified as protecting sources in the interests of a free press, avoiding the possibility of a denial of access by journalists, or honouring some undertaking which nobody wishes to be honoured if it be given.
Two of the noble Lords who support this amendment have already spoken at Second Reading, giving your Lordships' House the benefit of their own knowledge and expertise in this matter, and, as I see them in their place, it is not my purpose tonight to seek to pre-empt what they may say. It appeared to me as a matter of principle that the exclusion of journalistic material from the powers of entry, seizure and search under Part II of this Bill was unsound, unworkable, open to serious objection and perhaps unwelcome to those affected by it. A new dimension to the order of debate on Second Reading was introduced by the noble Lords, Lord Ardwick and Lord Hemingford, who explained why the exclusion was unacceptable to those directly affected by it. My noble friend the Minister, with his customary grace, in reply said that he would keep an open mind upon this subject, and it is in that spirit that I beg to move.
Lord McGregor of Durris: With the leave of the Committee, I should like to speak not only to this amendment but also to the amendments to Clause 13 and Clause 14. I should like to deal with one major point in these amendments which seek to delete references to journalistic material from the Bill. What is the justification of the privileged exemption of the professions protected in the Bill? The principle seems to stand on the necessity to protect interests vital to society.
The lawyers' privilege is, in part, to enable him to protect his client; but very importantly also to further the administration of justice. The doctors' Hippocratic silence not to reveal what ought not to be noised among men stands on the requirement that if the doctor is to serve his patient, his patient must be free to disclose everything that may be relevant about himself. Without full disclosure the doctor cannot diagnose, prognose, or treat. The priest is bound to silence over all matters disclosed in formal confession. The penitent must be free to tell all in order to be forgiven all. To the circumstances of social workers they attach similar considerations.
The general justification of these privileges is that some professions cannot be practised without them. The practitioners need the privilege to do their work, and most of them assert this need vigorously. But what of journalists and broadcasters? It could be argued that they need the legal privilege in order to serve the interests of society by protecting their sources of information in the course of providing the information without which, inter alia, democratic electorates cannot make rational choices.
Is this what the Government are saying, that journalists and broadcasters—like doctors, priests and lawyers—cannot do their work without this special protection? In fact journalists and broadcasters are
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saying the opposite, that they cannot do their work in good conscience if they are privileged. They fear, as the first possible consequence of privilege, the registration of journalists, which is only too likely to result from a situation in which the courts have to define journalistic material and then, necessarily, journalists. Beyond registration lies licensing, and beyond that control. That this possibility is no wild nightmare thought up by opponents of the Bill is confirmed by the grounds on which the former Government and this Government have regularly and honourably opposed the attempts of UNESCO to secure a special status and protection for journalists in the course of seeking to establish a new world information and communication order.
The Minister of State at the Foreign and Commonwealth Office at the time, Mr. Peter Blaker, spoke to the general conference of UNESCO in Belgrade in 1980. I have taken a phrase or two from what he said. He said:
"we should fully endorse recommendation 50 of the MacBride Report, which emphasises the dangers of a special status for journalists."
Recommendation 50 of that Report reads in part:
"The professional independence and integrity of all those involved in the collection and dissemination of news, information and views to the public should be safeguarded. However, the Commission does not propose special privileges to protect journalists in the performance of their duties, although journalism is often a dangerous profession. Far from constituting a special category, journalists are citizens of their respective countries, entitled to the same range of human rights as other citizens. … To propose additional measures would invite the dangers entailed in a licensing system since it would require some body to stipulate who should be entitled to claim such protection".
This Bill confers a special status upon journalists, and other countries will discern a serious inconsistency in our domestic and our international positions on this matter. These are the foundations of anxiety about the clauses. We have never had a press law in this country, and journalists have been subject to the same law as that which applies to their readers. I know that there has been discussion about the numbers of journalists who take one view or the other. It is my opinion that on the current evidence the great majority of journalists wish these clauses to be deleted; but I do not intend to argue the detail because I believe that this will be discussed by the noble Lord, Lord Hemingford.
I simply wish to quote a sentence or two from a very remarkable document, also quoted by the noble Lord, Lord Ardwick, on Second Reading. This is a statement signed by more than 200 editors drawn from the national dailies, the Sundays, broadcasters, regional newspapers and weeklies across the whole spectrum of the British press. Never before has this number of journalists and editors contrived to agree on a form of words, let alone agree to sign a public statement about their beliefs. What they say is this:
"We would rather be left out of the Bill. Journalists have no rights above those of ordinary citizens because journalists are ordinary citizens. We do not want special privileges conferred upon us. What is given can always be taken away".
I hope that the noble Lord who is to reply will explain what is the special principle that requires journalists to have a legal privilege conferred upon them in circumstances in which most of them adamantly reject it. They do not need it for their work, as does the doctor or the priest or the lawyer. On the

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contrary, what they are all saying is that the possession of such a privilege will undermine their capacity to do their work, and expose them to risks of all kinds. I simply cannot understand why, in these circumstances, the Government have continued with these clauses, and I very much hope that the noble Lord the Minister when he replies will give us some encouragement in the direction of a reconsideration of them.
10 p.m.
The Duke of Atholl: I very much hope that my noble friend the Minister will accept these amendments. I personally, would be quite unable to support the Government on this particular group of amendments. I am chairman of a group of provincial newspapers—an interest which I feel I should declare —but I assure your Lordships that I am not and never have been a journalist in any form, shape or size. Sadly, I think I would not be capable of writing sufficiently well to pursue that career.
But I feel that, in principle, journalists should not have special privileges, as has already been said, and that they do not want them. As chairman of this group, I should be most upset if I thought that our journalists were getting special privileges under this Bill which were not obtainable by other citizens of this country. I therefore hope that the Government will accept this group of amendments. I am sure that if they do not accept them tonight my noble friend will be able to say that he will consider the matter very seriously; because I know that it will be returned to at the Report stage of the Bill.
Lord Hunt: I rise briefly to support the amendment and to say that I have little, if anything, to add to what my noble friend Lord McGregor of Durris has said. But having served for three years under his distinguished chairmanship on the Royal Commission on the Press between 1974 and 1977, I am totally convinced that these amendments are right. It is greatly to the credit of the 200 or more editors mentioned by my noble friend that they have gone public in expressing their views. It is quite a relief that in relation to a Bill attracting a number of amendments purporting to provide additional protection from search and seizure—two of which I am about to move myself—there should be an amendment to seek excusal from being protected. I would say that it is not too much to claim that the freedom of our press, one of our basic liberties, depends upon this exposure to search and seizure, if necessary, as a safeguard against the abuse of the freedom of the press.
Lord Denning: May I ask to support this amendment? The law has often considered confidential information, especially that of journalists, when they have claimed to keep their sources secret. Always the law has replied, "It all depends". If it is necessary in the interests of justice for those sources to be disclosed, then they must be, as indeed the Committee will remember happened in the cases of British Steel and Granada and others. In many cases the courts have ordered the journalists to produce
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documents and to disclose their sources when it is necessary in the interests of justice—but only when it is necessary.
Most surely this can be carried out in this Bill. The disclosure of the journalists' material should be on the same footing as other documents, whether they are company documents or the like. The magistrates can consider whether it is really relevant evidence. Let us take the case where the newspaper buys documents which are very incriminating, as happened in the case of Vassall and in others. They often buy documents at a high price which may be most relevant evidence in the prosecution or the ascertainment of a criminal. Should they have protection from those? Should they be special material? Surely the magistrates, if it is the magistrates here, ought to be able to issue a warrant for these documents to be found. I am very glad to hear that so many journalists do not require any special consideration in their case.
Lord Hemingford: In supporting these amendments, I should like, if I may, to elaborate a little on the strength of the feeling within the ranks of journalism because, although the Government have been making signals now for many weeks—indeed, since the Committee stage in another place—indicating that they have only to be convinced that there is a consensus within the press, they have so far not apparently been convinced and therefore I feel constrained to go into the matter in rather more detail than we did on Second Reading. If I do go into a little more detail I hope that your Lordships will take it on the chin. I would rather that the noble Lord the Minister had accepted the general assurances that were given on Second Reading, most notably by the noble Lord, Lord Ardwick, but as he has not done so I feel that I must attempt some more detail.
There is never going to be absolute unanimity on any issue within the press, radio and television. It is not, thank goodness, in nature for there to be that kind of consensus. Nevertheless, on this particular proposition as noble Lords have already said, there is a quite extraordinary degree of agreement. For instance, in favour of the amendment we have the Director General of the BBC, which takes care of a huge section of broadcasting. He is joined by the editor of Independent Television News, the Managing Director of Granada Television, the Director of Programmes for London Weekend Television, and the senior commissioning editor of Channel 4 television—not much doubt, one would think, about consensus in the broadcasting world.
Turning to the national press, we have the amazing fact that the editorial directors of every national daily except for the Daily Star, the Morning Star and The Times—I put them in alphabetical order—are in support of these amendments. Those three have given no indication that they are opposed. Six editors of national Sunday papers and the editors-in-chief of Reuters and the Press Association, our two great news agencies, are also in support. Not much doubt about consensus in Fleet Street.
In the regional press, support is also strong. The editors of 13 regional morning papers, 45 regional

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evening papers and four regional Sunday papers support the amendments. Not much doubt about consensus in the regional daily papers. The editors-in-chief and editorial directors of two of the largest provincial newspaper groups and the two smaller ones are in support. One hundred and forty-one editors of local weekly papers have gone so far as to signify their support, too.
The National Union of Journalists is not t body with which I always agree—indeed, it once expelled me from membership—but in this particular matter we are in agreement. Disagreements stem mainly from industrial matters and in this particular case, where there are no industrial connotations, it is fair to say that far more journalists belong to the National Union of Journalists than to any other trade union, and in the absence of any evidence to the contrary, we may assume that it speaks for its members on this matter. Certainly evidence is not lacking when, as is quite often the case, it does not speak for its members.
The Newspaper Society is often at odds with the NUJ and I confess that I have myself sometimes been in disagreement with the Newspaper Society. But the society, representing hundreds of employers and newspaper owners, supports these amendments. The directors of the Periodical Publishers Association and the chairman of its editorial committee similarly support them. So there are the supporters of these amendments—a pretty formidable crew, by any standards, I should imagine.
What of those who oppose the amendments? Who are they, and what is the strength of their advocacy? First, there is the Institute of Journalists, a smallish body whose existence as an alternative to the National Union of Journalists is, in another context, of the greatest importance. I do not want to minimise them on that account; nevertheless they are not numerous. Their chief spokesman on this issue is not a journalist, and I feel this is a matter on which journalists are best able to grasp the kernel of the argument. In fact, I venture to suggest that all good journalists know in their bones that the Bill, as it stands at the moment, is wrong. At any rate, if the Government wish to tot up the number of divisions ranged on either side on this issue, they will see that the Institute of Journalists are not terribly significant.
Then there is the Press Council, a body of great importance in the field of complaints against the press. I say nothing against the Press Council in that respect. I believe its existence, its efficiency and, above all, the amount of use that is made of it is of the greatest importance: but its record in defence of press freedom is not so conspicuous. It has not done much that is bad, but it has left a great deal undone, and it has a strong lay element, which I suggest makes it less than reliable as a bellwether of press opinion. There is not much for the Government to worry about so far.
Finally, there is the Guild of British Newspaper Editors. I declare an interest as a loyal, but critical, member and as a past president of that organisation. At the last count, in September 1983, it had 323 ordinary members, 289 of them in England and Wales, where this legislation applies. Of course it does not apply to Scotland, where most of the other members are. Twenty-two editors had joined in the
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previous 12 months, and 50 members had resigned. I have said to the guild, and I repeat to your Lordships now, that there is a crisis in that organisation which is not at present being solved.
The guild's council has declared itself in favour of preserving the present special status provided in the Bill for,
"material acquired or created for the purposes of journalism".
Yet, as reported in the Observer of 24th June, guild officials admit that this may not reflect the views of its members.
An analysis of the figures should put the guild's position in perspective. By no means all editors belong to the guild, but the position is that in England and Wales 222 editors—most, but not all, of them guild members—have personally expressed support for the line that we are taking tonight by signing the manifesto which noble Lords have already mentioned. On the other hand is ranged a body which could, at most, muster 289 editors, which has conducted no poll of those individual members and whose officers are reported to admit that the official line may not represent the views of the membership. On this issue, the guild is simply not credible as a mirror of opinion among editors. The Government are of course not required to take account of the views of editors and journalists in forming this legislation; but they have indicated that they will do so. In those circumstances, I believe that to rely on suggestions that the profession is divided simply will not hold water. I therefore hope that we can be given some encouragement that the enormous strength of this consensus is at last beginning to be recognised.
Lord Kilbracken: As a working journalist and a member of the NUJ—I have not yet been expelled from it—I should just like to rise for a moment to express my complete support for these amendments for reasons which have been so admirably put forward by the noble Lord, Lord McGregor. Journalists are ordinary people and do not require any special privileges. I last supported the noble Lord, Lord Campbell of Alloway, on the subject of amusement machines and I shall be very happy to do so again on this rather more important question tonight.
10.18 p.m.
Lord Hartwell: I do not want to make this discussion longer than it has to be; but perhaps, as one who has been as long in journalism as anybody else in your Lordships' House, the Committee might like to hear what I have to say. Practically all of it has been said already. What I should like to do is to tell it in a different way, because all the speakers seem to assume —if one does not know anything about it—that this Bill has just been produced, and the Government are being very pigheaded about it. It has a long history going back to the beginning of 1982, and I think that the Government have been rather goaded in this matter. I have deep sympathy with their position. They have been bombarded with advice from many quarters. Sometimes that advice has been changed, and sometimes it has seemed self-important.
This is a very wide-ranging Bill and the part about journalists and journalistic material is a very small

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aspect of it. I cannot help feeling that the Government wish to get on with it. In the early stages, so many people expressed a view that journalism is a caring and privileged position. The Government have said, having taken over the Bill from the previous Parliament, "If that is what they feel, let us hear them all and if they want to be caring and privileged, let them be so. Let us not put ourselves in the position of making martyrs of them." That point of view was put with some indignation by the Under-Secretary, Mr. Mellor, in another place in Committee who said:
"In response to the tirade—or tidal wave—of criticism, my predecessors came to a certain conclusion … we just do not want to be led up the garden path again … after which they resile from their position, and say something completely different."
The kernel of the matter is: who are these people? This has already been discussed at some length, though not in perspective.
The noble Lord said on Second Reading that we are a "divided profession" but that he would be prepared to listen to "further views". Mr. Mellor had said the same thing in Committee in another place, and the Home Secretary on Report said it again. In other words, they say that if the opponents of this clause show that they are as united as journalists ever can be, then the Government will chuck it. I hope that we have nearly reached that stage.
One must admit, as nobody else has, that when the first Bill was introduced there were editorials, which Mr. Mellor quoted, in some national newspapers —The Times, the Guardian and the Daily Express—questioning that no specific protection was to be given to journalists. However, the Committee should realise that most newspapers produce three—or certainly two—leading articles every day. That, with their Sunday editions, makes a thousand leaders a year. Very often they have to be written on documents which are thrown at them between three or four o'clock in the afternoon of the day preceding publication. All the comments which were quoted in another place were made as asides, in general criticisms of the Bill as a whole.
Delane used to say that if you want to box the compass you should take four days, doing it in easy stages. Some of the national newspapers I have quoted took longer than that: but their editors have all been of one mind since the new Bill was published in the autumn of last year. There have been some statistics about who supports them and who does not, but I would stress the position about national editors who seem to me to be very much more important than anybody else.
Almost all of the national daily and Sunday newspapers have signed a letter saying that they are against this clause and in favour of the amendment. It is true that, of the 17, three did not sign, but all three of them have sister newspapers whose editors did sign. I would suggest to the Government that they should not be influenced by the fact that the national editors were among the few people who did not lobby them. National editors never lobby anybody, ever, in concert. The nationals should have great attention paid to them, because they have by far the biggest staffs and their readership is far greater—15 million every day and 18 million on Sundays. Allied to them
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is the editor-in-chief of the Press Association, who has far more reporters than any one newspaper.
A great deal has been said about the Guild of British Editors, which is a slight misnomer because they are all regional. I shall not go into the statistics, but the present situation is that the majority of them are in favour of this amendment.
So who is against the amendment and in favour of this clause? There are two: the Institute of Journalists and the Press Council. However, I stress that the matters which we are discussing are matters for editors and not for the rank and file. The editor is the man who, in law, is responsible for what goes into his newspaper. Whether or not this clause is passed, he will remain responsible.
The institute, which is the smaller but the older of the two journalists' trade unions, is opposed to the National Union of Journalists. I do not want to say anything against them but I do not think that either the institute or the National Union of Journalists has any standing in this matter. Trade unions are about pay and conditions. They may have their codes of practice, but editors do not recognise them. Editors have their own codes of practice according to the type of newspaper they are conducting. In any case, so far as the institute was concerned, the members were not consulted in advance. The institute's policy was set out in an article in a trade paper called UK Press Gazette.
There remains the Press Council, which is naturally considered with much more awe. Its remit is that of an ombudsman as regards the press but not broadcasting. Its function is to pronounce on standards, and to see that misrepresentations are corrected—and, if necessary, reprimanded. But why it should want journalists to be privileged, I cannot imagine. In any case, again, its view on this subject was issued initially by the director, and only later ratified by the council, which for the most part consists of part-timers who by definition must have had no close connection with newspapers.
So much for the divided profession, as the Minister calls it. But I do not believe that journalism is a profession at all. We have never claimed special status. Certainly we care, and we never hold on to documents which we recognise as threatening national security or which prove criminality. But we are not in a profession which gives us rights above those of the ordinary citizen. We do not give ourselves airs, and we do not wish them thrust upon us.
It is true that politicians are occasionally excessively civil to us—especially when they are not in office. But it does not follow that Parliament should grant us the same status as clergymen. We are not a profession, because anyone with aptitude can get in—and so nobody can he thrown out. There are no other qualifications. Perhaps I may give some examples of successful journalists, not from this generation, because that would be invidious, but from the last generation.
My father, the first Lord Camrose, started in journalism as a police court reporter at the age of 14. Lord Beaverbrook started as a millionaire proprietor. In fact the first editor he appointed—the late Sir Beverley Baxter—used to say that he had been told.

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"Bax—I'm making you editor because you're the only man on the paper who knows less about journalism than I do".
If we need no qualifications, there is no justification for singling us out as privileged persons. We are not a profession and we are not divided—or not much. Please may we be allowed to take pot luck with the rest of the citizenry?
Lord Ardwick: I spoke at length on Second Reading. Everything I said then was relevant to these amendments, and I do not propose to redeploy those arguments at any length tonight. In fact, the noble Lords who are co-signatories to these amendments have already said all there is to say with great cogency and force.
We who work on newspapers fear that the provisions of this Bill will lead to the emergence of a legal definition of a journalist. This would simplify the task of any government in the future which wished to regulate or license journalism, with all the dangers that that would carry for our democracy.
This is not one of those amendments which seek to torment, tease or even embarrass the Government. On the contrary, the Government are offering us journalists a gift, and it is we who are embarrassed. Most of us know what it is to be offered a gift by a generous person who has nothing but the best motives, and then to have to reject it, for some gifts compromise the recipient. They change the relationship between he who gives and he who receives. That is our position today. We are offered special protection, and this would change our relationship with Government and would change our status in society. These are undesirable things. We should become a privileged class. We should no longer be able to plead that the freedom of the press is not just the freedom of writers and of printers, but is to be protected because it is a freedom for all citizens to exercise and enjoy.
I urge the Government to allow us to reject their gift while expressing to them our grateful thanks for their goodwill in offering it to us.
Lord Elton: There seems to be a certain consensus in the Chamber this evening. I do not know whether or not your Lordships have noticed it. It did catch my eye, and I wondered how many lions there were in the den when Daniel went there!
These amendments seek to delete all references to journalistic material from Part II of the Bill. Those references serve as a protection to material created or held for journalistic purposes. My noble friend Lord Campbell of Alloway and his allies—his numerous, noble, widely dispersed and always distinguished and sometimes even learned allies—wish them out of the Bill because they wish to remove from journalists a special privilege which others do not have. That, I think, is clear, and if I have it wrong then they must stop me. I hope your Lordships will listen very carefully to what I have to say, because what matters is not really the number of those supporting this amendment at the moment in your Lordships' Committee or outside it but whether they have got it right. I believe that what they fear does not now exist in the Bill as drafted, and that what they now propose
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would actually put the danger that they seek to avoid into the Bill.
I shall come to that in a moment. I think I must first say what is in the Bill, and why it is there, before I say what would happen if we took it out of it. The Bill as drafted works like this. Throughout, the Bill addresses itself not to journalists but to journalistic material. There is no question of whether or not journalists belong to a profession. Whether they were appointed to run important newspapers because they knew nothing about the business or whether they were born and bred in the compositors' room and worked as cub reporters at the age of 16 is irrelevant. The Bill deals with journalistic material.
What is more, journalistic material held in confidence and consisting either of documents or of other records is wholly excluded from an application by the police for access to it unless there are existing statutory provisions which would allow the issue of a search warrant in respect of it. If there are such provisions, there is a special procedure set out in Schedule I to deal with it. All other types of journalistic material will constitute special procedure material. So far as that is concerned, the provisions of Schedule I will again replace provisions already on the statute book which empower magistrates to issue search warrants. They will also provide a means for the police to obtain access to material not covered by existing search warrant powers which constitute evidence of serious crime. In both cases this will be on the authority of a circuit judge rather than a magistrate.
The effect of the amendments proposed by my noble friend would be that journalistic material enjoyed no special protection as such. If the particular item concerned fell within the definition of excluded material in Clause 10, then it would be excluded material; if it fell within the definition of special procedure material in Clause 14, then it would be special procedure material; if it satisfied neither definition but still constituted substantial evidence of serious crime then it would be subject to the provisions of Clause 8. That is what these amendments seek to achieve.
Your Lordships will be aware of the irony of the fact that these provisions are in the Bill only following the very strenuous representations of the journalistic professions in the last Parliament. Your Lordships will also be aware that my noble friend seeks to take out of the Bill what was not at first in it at all; we put it in only on their recommendation. The Government saw great force in the argument that journalists should not have what amounted to a specially privileged position. This is what my noble friend now wants to establish; it is the argument that a protection that was appropriate to social workers and priests was not appropriate to reporters and editors.
I also remember that we were eventually over-persuaded not just by the apparent unanimity of the profession—and I understand that it is always "apparent", at best—which was important, but also by the force of their arguments, which were very persuasive. The clear message we received was, first, that the freedom of the media depended crucially upon the provision of special protection for

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confidential journalistic material in order to safeguard the identity of sources; and, secondly, that the provisions of Clause 8 did not provide sufficient protection for evidence of crime which might not be subject to considerations of confidentiality, such as untransmitted film, but which, nevertheless, raised special issues concerning the balance of public interest.
The last Government responded to these concerns and undertook to meet them, and when my right honourable friend reviewed the provisions of the Bill before reintroducing it he, too, was persuaded by the merits of the argument that there was a genuine need for special treatment. However, he made clear that he would reconsider the matter in the light of further representations from those most directly concerned. I shall return to those representations in a moment.
First, I must make it clear that we continue to believe that, the question of consensus aside, there are sound arguments for conferring special protection not on journalists, but on journalistic material, thereby protecting the free and uninhibited flow to the press and the rest of the media of information on which they depend.
In the first place, it is only by making it clear that confidential journalistic material is excluded material that it is possible to be sure that confidential sources will not be disclosed on the order of a court. Those working in the press and broadcasting media have always argued, in the strongest terms, that the confidentiality of their sources should be respected; and I have not heard anyone retreat from that position tonight. The position of those who now criticise the Bill seems to be that journalists, therefore, should not be compelled to identify their sources, but they should be entitled to run the risk of arguing unsuccessfully for confidentiality in the courts and to be punished for contempt of court if the court holds against them. Since both journalists and the Government agree that the Bill should confer no new powers to compel the identification of their sources, it is surprising that some journalists should be so keen to open up exactly this possibility.
The Bill prevents the issue from coming before the courts in the first place. This will save unnecessary court proceedings. But my noble friend and his distinguished and numerous allies are prepared to face the courts. This is the price they are prepared to pay. So we must then ask ourselves: what are they paying it for? Their purpose is to avoid there being a necessity, or even an inclination, on the part of the courts to define what is a journalist. The concept "journalist", they feel, should remain undefined and thus act as a first defence against the establishment of lists of journalists and, at some remote stage, the development of regulations on both journalists and the press. The noble Lord, Lord Ardwick, concentrated that point in a few pungent sentences.
The results which they fear may follow from the Bill as drafted are results that the Press Council regard as remote and hypothetical, and I think the description is accurate. However, the freedom of the press is a concept close to the hearts of constitutionalists and to this House. It has connections with the more absolute concepts of political freedom and democracy itself. I
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readily accept that. We must not, therefore, put this danger lightly aside. We must, instead, ask ourselves whether removal of the protection now in the Bill makes it more or less likely that the courts would have to ask themselves what is a journalist and, by providing an answer, set journalists for ever apart as a marked and, therefore, it is suggested, a regulatable body.
What would happen if the protection were removed? What if the police were able to apply to a court for access to evidence of serious crime, even though it had been acquired or created for the purpose of journalism? The first question that would arise on such an application would be this: should the police apply under Clause 8 or Schedule 1? The answer would depend on whether the material was or was not special procedure material as defined in Clause 14.
I know that your Lordships want to get into the Division Lobbies. I assume my noble friend wants to get into the Division Lobby quickly, so I do not want to follow the process in detail. I would only say that under Clause 14 material is special procedure material if it is held in confidence and has been acquired or created in the course of trade, business, profession or other occupation. These are crucial words, as your Lordships will see in a moment. As my right honourable friend pointed out in another place, the police would have to apply under Schedule 1 in the case of material held by someone who was a professional journalist, but they would have to apply under Clause 8 in the case of material held by somebody who was not a professional journalist. So the effect of removing all references to journalism in the Bill would be that professional journalists enjoyed a protection greater than that afforded to other occasional contributors to press or broadcasting material.
Whether the application should be under Clause 8 or Schedule 1 would depend entirely on whether or not the person who held the evidence was or was not a professional journalist. A definition would be essential, but that is precisely what the noble Lords have with such persuasive oratory told your Lordships that they wish to avoid. So it seems that the argument must fail on those terms. I ask noble Lords to consider, even if the whole of the rest of their case is valid, whether they really want to press this amendment in order to put themselves in the peril which they are so vigorously trying to escape.
There are other matters. There is the question of unanimity. The noble Lord, Lord Hemingford, who described himself as a loyal ex-member of the Guild of British Newspaper Editors, and revealed to us the—
Lord Hemingford: I am sorry. I am still a member, loyal but critical.
10.42 p.m.
Lord Elton: The loyal but critical member revealed to us that it was riven by disagreement. But it appears that what the disagreement has yielded is the preponderance of a view which favours the Bill and not the amendment. The guild wrote to us on 7th February to say—and I quote from these letters only the relevant passages—

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"We continue to believe that the position could be improved by a phrase based on publication rather than journalistic material. However, if that is not an option, the majority view of the Guild"—
it recognises the divisions—
"remains as outlined to you when we met last July to accept the substance of the clauses giving protection".
The Independent Television Companies Association wrote on 23rd February:
"The majority of companies feel that if our original submission in favour of material acquired or created for purposes of publication is not included in the Bill, then it would be better to retain journalistic material rather than have no protection at all".
The Press Council—again the noble Lord sought to belittle its importance—said on 4th May:
"The considered and reconsidered view of the Press Council is that on balance the provisions relating to journalistic material now in the Bill should be retained. The Council arrived at this view by a very substantial majority. It hopes the Government will retain the provisions on Report stage in the House of Lords".
There are other points.
But I think that the point one has to come back to is this. I understand the desire of the journalists not to fall into a category in which some grey-suited, jackbooted future Government could force them to adhere to repressive rules, interference from Government and censorship. I understand that, but the fact is that the amendment that my noble friend and his distinguished allies are pressing on your Lordships would have exactly the effect of exposing them to that danger, if that danger arose, as they claim it does, from their being described or defined as a category in the courts. I take leave to think that that is rather a remote danger. I think that their fears are excessive. But I do not want to go on longer, because it seems that what I have said appears to me, on profound reflection, to be irrefutable. I do not think my noble friend will want to put himself in that position by pressing this amendment. We are at one in what we want to achieve. It seems it would be ironic if he were to do that.
Lord Avebury: May I briefly intervene in this debate in order to point out that the noble Lord the Minister on occasions seeks to distinguish at the moment between people who are journalists and people who are not.
He will probably recall the case which I am going to mention. It is that of Mr. Ian Cameron, about whom he had some correspondence. Mr. Cameron sought to visit a prisoner, Mr. Frank Marritt, in Long Lartin. He was denied permission to do so on the grounds that he refused to sign an undertaking that he would not publish any of the material derived from his discussions as a journalist, with the prisoner. The prison authorities and the Minister at first insisted that Mr. Cameron was a journalist because of articles which had been published by him in national newspapers, until it was pointed out that the only material of which Mr. Cameron was the author which had ever appeared in any newspaper was a letter to the Daily Telegraph. In the end, the Minister and the governor of the prison climbed down and apologised to Mr. Cameron.
However, the point remained that if it had been established that he was a journalist, he would have then been forced to sign this undertaking and in
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default of his willingness to do so he would have been prevented from visiting the prisoner with whom he had a very long-standing relationship, extending over many years.
This problem arises from the definition in Clause 13, that;
"'journalistic material' means material acquired or created for the purposes of journalism."
So the courts are going to have to decide what were the motives of the person who held this material: did he keep it for the purposes of publication or was he, as in the case of Mr. Cameron, obtaining it for another purpose? In the case of Mr. Cameron, he was obtaining the material simply in order to assist the prisoner in that case to make his representations to the authorities concerning his sentence and matters connected with it.
I think that this forces the courts into deciding whether this person has embarked on a career of journalism or whether he is collecting this material for some other and completely separate purposes. So the question at which we are looking and which the Minister says is already resolved under the Bill for the satisfaction of those who moved the amendment is, in my respectful submission, brought into plain view by one's first consideration of the definition in Clause 13(1).
The problem has not been resolved. While I was listening very closely to the Minister, it has not been resolved to my own satisfaction. I was a member of the National Union of Journalists. Having heard the whole of this debate, I am still convinced that amendments are necessary. I should not like to undertake to say whether or not the form of them is precisely right. However, I think that as an expression of opinion of the Committee it would be right for these amendments to be put into the Bill so that there would be an opportunity for further reflection by the Minister on everything that has been said so far.
Lord Elton: I shall be very brief because it is getting late. The noble Lord referred to a case which I well recall. The case turned on the interpretation of the prison rules. However, a fortiori, if he is right, if governments do seek to define journalism, the Committee will be all the more anxious not to force the courts to do this.
On the noble Lord's second point on the definition of Clause 13, I hoped that I had made it clear that all that is required is to decide whether or not the material has been acquired or created for the purposes of journalism; not what sort of person has dealt with it. There is no requirement to define a journalist. Obviously if something in particular is written as an article to go into a newspaper, that is journalistic material. If it is a letter to the editor, then it is clearly of a different character. I cannot make the point more clearly than I have sought to make it. If I have failed, I apologise. At least I can claim that I have been overborne by numbers. However, it seems to me as plain as a pikestaff that if you put this amendment in the Bill, you will force the courts to define what is a journalist.
Lord Hemingford: May I congratulate the noble Lord on the ingenuity of that argument. However, I

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can assure him that I would much rather be in court arguing about material acquired or created in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office.
Lord Elton: Would the noble Lord give way because he has just made what I regard as an interesting admission. He wants to be specially treated. He wants to be treated like a doctor or a priest.
Lord Hemingford: No. On the contrary, I was going on to say that I would much rather be in that situation than arguing about material acquired or created for the purposes of journalism. It has nothing to do with being in a special position. We want to be treated just like anyone else. That is the essence of the thing. Obviously, I would rather not be caught at all, but I would rather he there on that basis than arguing about material acquired or created for the purposes of journalism.
Lord Thomas of Swynnerton: May I ask the Minister a question? What would be the position, in his view, of someone who looked upon himself as a writer and not as a journalist?
Lord Elton: The position would be the same for writers, dustmen, acrobats, priests, prostitutes—anyone. It does not matter what they do. What matters is w hat they produce. If a dustman writes something for journalistic purposes, it is caught. If he writes it for other purposes, it is not. So the noble Lord, who may have an interest in this—something which had not occurred to me as I sprang nimbly to my feet—need not feel that this would put authors into a special category.
Lord Campbell of Alloway: I had not realised that this could become such an emotive subject and cause so much confusion, especially on my own Front Bench. Before dealing with the speech that has been made from my Front Bench—I cannot take long about it at this hour—I should like to thank all noble Lords who have spoken from all corners of the Committee, from the depth of their expertise and their own knowledge, in support of the amendment. My noble friend the Minister read his Home Office brief at great speed and, by a stroke of ingenuity—
Lord Trefgarne: Order!
Lord Elton: I am tempted to my feet because I feel that the noble Lord might like to know that I wrote the speech myself. Since it is plainly, judged by the strength of feeling against me, going to fail, I should not like it to be laid at the door of anyone else.
Lord Campbell of Alloway: I am grateful to my noble friend for the information that he wrote the speech himself. I was about to suggest that it was for many of us, very difficult to understand—that it did, in fact, stand the whole problem on its head, and that the suggestion that by accepting the amendment you create the peril that it is designed to avoid is wholly unsubstantiated. If noble Lords who have a practical
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interest in these matters have spoken in favour of the amendment—it is fair to assume that they have sought legal advice—for the reasons that they have given, if the noble and learned Lord, Lord Denning, supports the amendment, and if other noble Lords who have legal expertise support the amendment, it really is not the right time, at this hour of night, to bandy with my noble friend the Minister the point of legal construction that he raised, save to say, with the utmost respect, I do not accept it.
Here, there is a serious problem. If there is a serious problem, I would beg my noble friend the Minister to implement his undertaking that he will keep an open mind. He has heard what has been said on all sides of the Committee. I would ask him in the circumstances if he can give some indication that he will keep an open mind between now and Report stage so that this matter may be further considered.
Lord Elton: I really wonder whether there is anybody else here to say anything more. We have discussed this matter since the Bill was first introduced in a previous Parliament. Your Lordships have done your best, and I have done mine. I am quite resigned to defeat, if it is necessary, but would it not be useful to get the matter out of the way now?
Lord Harris of Greenwich: May I briefly say a few words as somebody who has not spoken before in this debate? This is the first time that your Lordships have discussed this issue. The noble Lord suggests that it has been discussed time and again; it has not. I suggest to the noble Lord, with great respect, that apart from himself, every single person who has spoken has done so in favour of the amendment. In those circumstances, would he not agree to go no further than to say that he will report this matter to the Home Secretary and will consider it before the Report stage of the Bill? That does not seem unreasonable, and it is in accordance with the general traditions of this Chamber.
Lord Campbell of Alloway: If my noble friend the Minister could give some form of undertaking merely to consider the matter, it would surely satisfy the mood of the Committee as it has been expressed this evening.
Lord Elton: I am sorry, but I could not quite hear the beginning of what my noble friend said. I thought that he was moving the amendment.
Lord Campbell of Alloway: No, I was not moving the amendment. I am seeking to avoid dividing the Committee. I am asking, I am begging, my noble friend the Minister to pay heed to the views and the worries expressed by the Committee and at least to say, without commitment, that he will consider this matter further. That is all that I am asking. I cannot do more.
Lord Elton: My noble friend places me in a difficult position. I cannot see that there is room to give on this matter. We have spent 70 minutes on it this evening. If I undertake to ask my right honourable friend to read this debate with great care tomorrow, I can do it in the wake of either a Division or an undertaking that

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he will read it tomorrow. Either way he will read it tomorrow. I do not think that your Lordships will want to spend an equivalent amount of time on this matter at the Report stage. I do not know whether my noble friend will be satisfied with that undertaking and whether we can agree to dispose of the matter in 10 minutes the next time round. I am not sure whether my noble friend can deliver the second half of the argument.
Lord Campbell of Alloway: I was only seeking to produce what appeared, with respect, to be a sane way in which to deal with a serious problem. I cannot understand how one can undertake to spend 10 minutes here or 10 minutes there on this matter. What I wanted was a form of genuine assurance that fair consideration would be given to the concern expressed from all sides of your Lordships' Committee. If that cannot be done, I shall have no alternative but to take the opinion of the Committee, which I do not want to do.
Lord Elton: I do not want to delay the proceedings further. I do not want your Lordships to think that your concern is not a matter of importance to my right honourable friend. If your Lordships read the Second Reading debate, you will find that the list of outside supporters and every other point that has been made was then raised in some form or another. Many more points have been raised outside this Chamber. With the greatest respect, if your Lordships wish to tell the Government that they are wrong, this is the time to do it. If your Lordships wish to say that the Government are right, this is a very good time to do it.
Lord Elwyn-Jones: The hour is very late. It has been a very long day. This is a matter of great controversy and of very considerable importance. Would not the Government Front Bench feel well advised to consider returning to this matter, thus enabling it to be brought before your Lordships again? I should have thought, with great respect, that that would be the more seemly course to take. I must say that myself I take a somewhat objective view about the issues, but I should have thought that on the whole, in the interests of the Committee, the better course might be to say, "Yes, very well, let us think about it again and fight, if necessary, the battle another day". I may be making a thoroughly unhelpful observation, but for what it is worth, that is my personal view.
Lord Elton: I really do not think that I have anything more to say.
Lord Campbell of Alloway: Then I am left to take the opinion of the Committee.
11 p.m.
On Question, Whether the said amendment (No. 61) shall be agreed to?
Their Lordships divided: Contents, 41; Not-Contents. 46.

DIVISION NO. 3

CONTENTS

Airedale, L.

Kilmarnock, L.

Amherst, E.

Kintore, E.

Ardwick. L. [Teller.]

Kirkhill, L.

Atholl, D.

Lawrence, L.

Avebury, L.

McGregor of Durris, L.

Beaumont of Whitley, L.

Maude of Stratford-upon-Avon, L.

Birk, B.

Blease, L.

Mishcon, L.

Campbell of Alloway, L. [Teller.]

Nicol, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Denning, L.

St. Aldwyn, E.

Elwyn-Jones, L.

Stedman, B.

Elystan-Morgan, L.

Stewart of Alvechurch, B.

Harris of Greenwich, L,

Stewart of Fulham, L.

Hartwell, L.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Thomas of Swynnerton, L.

Hemingford, L.

Tordoff, L.

Hooson, L.

Underhill, L.

Hunt, L.

Wigoder, L.

Hutchinson of Lullington, L.

Winchilsea and Nottingham E.

Kilbracken, L.

NOT-CONTENTS

Abercorn, D.

Hailsham of Saint Marylebone, L.

Attlee, E,

Avon, E.

Halsbury, E.

Belhaven and Stenton, L.

Hood, V.

Bellwin, L.

Hornsby-Smith, B.

Beloff, L.

Kaberry of Adel, L.

Belstead, L.

Kilmany, L.

Brabazon of Tara, L.

Kinnoull, E.

Brougham and Vaux, L.

Long, V.

Bruce-Gardyne, L.

Lucas of Chilworth, L.

Cairns, E.

Macleod of Borve, B.

Caithness, E.

Marshall of Leeds, L.

Cathcart, E.

Molson, L.

Coleraine, L.

Mottistone, L.

Crathorne, L.

Norwich, Bp.

Cullen of Ashbourne, L.

Rankeillour, L.

De La Warr, E.

Skelmersdale, L.

Denham, L. [Teller.]

Swansea, L.

Elliot of Harwood, B.

Swinton, E. [Teller.]

Elton, L.

Trefgarne, L.

Gardner of Parkes, B.

Trumpington, B.

Gibson-Watt, L.

Vaux of Harrowden, L.

Glenarthur, L.

Whitelaw, V.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
11.7 p.m.
[Amendments Nos. 62 and 63 not moved.]
Clause 10, as amended, agreed to.
Clause 11 [Meaning of "items subject to legal privilege"]:
Lord Hunt Lord Hunt rose to move, on behalf of Lord Donaldson of Kingsbridge, Amendment No. 64:
Page 12. line 17, at end insert—
("; and
() documentary or other records concerning a client who can be identified from them and which are made in connection with the giving of legal advice to the client.")
The noble Lord said: On behalf of my noble friend Lord Donaldson I rise to move Amendment No. 64—
Lord Elwyn-Jones: Will the noble Lord allow me to intervene? It is now seven-and-a-half minutes past 11, and we have been engaged upon this exercise all day,

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or most of the day. It has been a tiring and difficult Bill to deal with. I notice that the noble Lord, who has handled it with great valour and ability right through, is not asking for help, but it is intolerable to resume this matter now, at this hour, when there is no requirement in any reasonable calendar of legislation to make that a necessity. It is too late in the day to deal with important matters affecting the liberty of the subject, and affecting, too, the police and criminal justice. I hope that the Chief Whip will see the wisdom, fairness, and sense of what is proposed.
Lord Denham: I am, of course, in the hands of the Committee over this matter, but I must remind the noble and learned Lord, Lord Elwyn-Jones, that in this Chamber we have no selection of amendments, and every noble Lord has the right to put down any amendment to any Bill that he wishes. We have no closure. We have no guillotine. This, I think your Lordships feel, is very right and proper for a revising Chamber.
Any noble Lord may spend any amount of time he wishes discussing these matters. The corollary must be that we must get the business of the Government of the day through, and if your Lordships wish to spend rather longer on certain amendments than on others, and if the day is taken in considering a certain Bill proliferately, it may mean asking your Lordships to sit later and later into August, and that your Lordships would not want. There has to be a certain amount of forbearance exercised by this House if it is to get Government business through—any Government, the Government of the day—and to ask to speak at great length on any amendment, and then to rise at ten past eleven does not add up.
Lord Elwyn-Jones: If I may revert to my submission, there has been no filibustering from any part of the Committee this day. If I may say so without impertinence to the Chief Whip, he has not honoured us with his presence in this debate; obviously he cannot. That is the position, and any imputation that there has been a deliberate filibuster and delay is quite unmerited. It has not happened. The noble Lords who have spoken have exercised reasonable economy without, I think surprisingly, an exception during the course of the day.
Lord Denham: I do not accuse any noble Lord of filibustering on this, but there is in this House freedom to speak without any form of limit. The programme is such that this House has to get every Bill through that another place gets through. This happens with every Parliament. We have agreed, through the usual channels, that there shall be a number of days for this Bill and if we rise before we have reached the generally agreed place in a Bill it just means sitting that much later on another day. I am afraid this is the sheer mathematics of the occasion. If we rise now—which, if the Committee wishes, it may be right to do—we may have to sit until two or three in the morning another day.
Lord Harris of Greenwich: The noble Lord the Government Chief Whip does not seem to have a very long memory. He will recall from his experience as
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Opposition Chief Whip the protest made by the noble and learned Lord, Lord Hailsham of Saint Marylebone, speaking from the Opposition Front Bench, when the then Labour Government wanted to sit beyond half past nine in the evening on the Criminal Law Bill.
The fact is, of course, that the noble Lord, Lord Denham, is right that we have an obligation to consider Government legislation, but a number of us drew the Government's attention to this business of sitting late at night on this particular type of legislation which affects the liberties of the subject. It is inappropriate, in my view—and I am quite sure in the view of a number of my noble friends—to sit at this time of night. We have not even been told by the noble Lord, Lord Denham, what part of the Bill we should reach before he is prepared to adjourn consideration of this Bill. I am bound to say that the explanation he has given for sitting beyond this time in the evening is, so far, not very persuasive.
Lord Denham: The noble Lord, Lord Harris of Greenwich, may say that, but the noble Lord, Lord Harris, will remember that, when he was speaking from this Dispatch Box when he was in charge of a Government Bill, he had to get his Bill through and he had a certain number of days to get that Bill through in.
If we do not reach a stage in the Bill for a particular day, we have to sit rather longer on it the next day or speak that much shorter on it. We should not argue these things over the Floor of the House. They are much better agreed through the usual channels. If I can have a word later through the usual channels we can come to some accommodation. But I must tell the Committee that, if they rise now on this day, to get the Bill through in the reasonable number of days allotted for it we shall have to have one very late sitting indeed. The noble and learned Lord must appreciate that we cannot rise at a reasonable time for the Summer Recess if we are to be limited as to the number of amendments we can get through in a day so that the number of days of a particular stage of the Bill proliferate.
Lord Wigoder: May I make two observations? First, the noble Lord the Government Chief Whip will not want it to be suggested that any sort of delaying tactics were used over the last amendment particularly having regard to the fact that a number of noble Lords who spoke in that debate are probably making their only substantial contribution throughout the whole of this Bill. Secondly, if the noble Lord the Government Chief Whip wishes to consult through the usual channels, will he bear in mind that there are usual channels in all the political parties in this House?
Lord Ponsonby of Shulbrede: I think that there is another point which should be made clear. The noble Lord the Chief Whip said that the number of Committee days to be allocated to this Bill had been agreed. In fact, I had expressed the view, and I know that the view had been expressed by other parties, that four days for the Committee stage of this Bill is inadequate and that there should be a fifth Committee day for this particular Bill.
Lord Denham: Yes. Of course I will agree to what the noble Lord, Lord Ponsonby, says, and of course I take very great note of what the noble Lord, Lord Wigoder, says. But I think that probably it will not be very advantageous to continue with this particular argument at this particular time. Perhaps if we adjourn the Bill at this stage we can then get the usual channels functioning. But I think that we should consider that this Bill should be got through in five days.
I want to make it absolutely clear to noble Lords who spoke on this particular amendment that I am not suggesting in any way that they filibustered. The difficulty over a Bill of this type, where there are a number of different matters bringing in a number of different Peers, some of whom are interested in one part and some in another, is that it makes the getting through of the business that much more complicated unless there can be general goodwill. I think that, after this exchange, possibly we can achieve something along these lines. I beg to move that this House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at seventeen minutes past eleven o'clock.