Lords Sitting of 5 July 1984

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

The Postal Service
Lord Boyd-Carpenter: 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 what action they propose to take to check the increasing deterioration in the handling of mail by the Post Office.
Lord Skelmersdale: My Lords, recent disappointing performance levels have owed much to industrial relations difficulties associated with the annual pay round and with the Post Office's ongoing drive to increase the efficiency of the business. This followed a period of improvement in service in late 1982 and in 1983, when the Post Office came close to meeting its delivery targets. In the light of the recent deterioration, the Post Office undertook an intensive review of mail arrangements in London. This review has now been completed and far-reaching changes implemented. The Government will now he discussing with the Post Office its plans to secure significant and sustained improvements over recent delivery performance.
Lord Boyd-Carpenter: My Lords, while thanking my noble friend for that moderately encouraging reply, may I ask him whether he is aware that the public are deeply disturbed at the deterioration in service in recent months and are not prepared to accept mere declarations of intention? If these declarations do not bear fruit, may I ask what the Government propose to do about it?
Lord Skelmersdale: My Lords, my answer was not intended to he a declaration of intent but to indicate that the Post Office board is doing something: for example, a better breakdown of postal services for London districts' traffic in inner area offices; a reduction in the number of weekday first class dispatches between inner area offices to two per day; and a separate van network solely for inner area to inner area first-class traffic. I accept my noble friend's point that the public are suffering both distress and inconvenience from the failure of the Post Office to meet performance targets. But this is due to the changeover in the management of the Post Office, who are going a considerable way towards reducing restrictive working practices within the organisation. Regretfully this cannot be done overnight so some disruption w ill, I am afraid, continue for some little time.
Baroness Burton of Coventry: My Lords, going back further than that, would the Minister agree that the real deterioration in Post Office deliveries was when we had the introduction of the second tier letter service?
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Arising from that and following on, is he further aware that the consequent additional delay in each subsequent year of the second-class mail to fulfil the obligations that it should arrive later has greatly added to this late delivery? Will he look at that.
Lord Skelmersdale: My Lords, I am certainly prepared to look at it, but my information is that the introduction of the second-class letter postage has nothing to do with the problem. If we still had a single rate and delivery service all that would have happened would be that the whole system would be very much worse rather than just part of it.
Lord Somers: My Lords, can the noble Lord give the House any assurance that the Government will not try any such remedy as privatising the Post Office?
Lord Skelmersdale: My Lords, that is rather a different question; but it is of course an important policy aim of the Government to reduce the size and scope of the public sector, and privatisation in all sectors is under review. The Post Office is not excluded from this review although there are no immediate plans to privatise the corporation.
Lord Mowbray and Stourton: My Lords, does my noble friend think that it might meet the Post Office's wish to be more efficient if post codes were fully used? If this is the case, will my noble friend try to encourage the Post Office to encourage the public to use post codes more?
Lord Skelmersdale: My Lords, the recent mechanisation programme is proceeding apace and relies to a great extent on postal codes, but the Post Office has not been encouraging use of postal codes until the mechanisation process is complete. Once it is complete I have no doubt that the Post Office will follow my noble friend's suggestion.
Lord Bruce of Donington: My Lords, is the noble Lord aware that the profitability of the Post Office—which is one of the main criteria imposed by Her Majesty's Government—has increased progressively over the years and that last year it contributed £59 million net into the Exchequer? Is he further aware that all the productivity indicators have gone consistently upwards? Will he bear in mind that where the profit motive alone is taken as the principal criterion with consequent changes in management practice, it is not unusual for services to deteriorate slightly in the short term?
Lord Skelmersdale: My Lords, I do not think that it is the profit motive alone which has caused this, I hope, temporary deterioration from the Post Office's published aims. As far as the surpluses that are made by the Post Office are concerned, I did not have the £59 million figure for last year, but I can tell the noble Lord that they have had surpluses of £131 million since the year 1981–82. I may add for the information of the House that they owe the National Loans Fund £178.6 million.
Lord Nugent of Guildford: My Lords, is my noble friend aware that there is no single measure which

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would give greater savings and greater efficiency to the postal service than the universal introduction of the postal code? Is he also aware that in some areas of the country where the posting public use the postal codes there is no machinery at all to use it in the postal service? Can my noble friend give an assurance that he will ask the Post Office authorities to give top priority to the universal introduction of the postal code? Nothing would give greater economy and a greater boost to efficiency.
Lord Skelmersdale: My Lords, I am grateful to my noble friend. He is perfectly right but, until the machinery exists in all sorting offices to deal with the postal codes, the Post Office feel that there is little point in encouraging more than they are at the moment the use of the code.
Lord Beswick: My Lords, is the noble Lord aware that in my area of Wimbledon, in south-west London, we had an absolutely superb service, as efficient as it was personal and friendly, and that now all that has gone under the drive for efficiency when too much of the sorting is centralised at the big new Nine Elms sorting office?
Lord Skelmersdale: My Lords, the Nine Elms sorting office is, I would say, a great improvement which affects not only the whole of London but also the postage throughout the whole country because so much mail goes through London. I accept that in its building and implementation there have been hiccoughs such as those in his own district of Wimbledon to which the noble Lord referred, but, when it is fully operational, I can assure the noble Lord that he will find the service considerably better.
Lord Harmar-Nicholls: My Lords, rather than being led astray by the anti-profit question as put by the noble Lord, Lord Bruce of Donington, is my noble friend aware that extra profits invariably reflect extra efficiency and that it is extra efficiency that we want at the end of the day?
Lord Skelmersdale: My Lords, I think that I am grateful to my noble friend but, of course, profits come from a whole different range of things—including, I may say, the interest on investments.
Baroness Seear: My Lords, may I ask the noble Lord when, on first installing this equipment, it was expected to be completed and what is causing the hold-up?
Lord Skelmersdale: My Lords, the major hold-up is that at the beginning the Post Office workers refused to operate the machinery. I am glad to say that this is now getting considerably better. The implementation of the entire outward sorting will be completed by the end of 1985.
Lord Davies of Leek: My Lords, is the noble Lord aware that some of us sympathise with the postmen in trying to decipher the horrible calligraphy resulting from the use of that anti-calligraphic weapon the ballpoint
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pen, which is ruining human handwriting and making the reading solution of an address almost impossible for the postmen?
Lord Skelmersdale: My Lords, I take the noble Lord's point.
Lord Boyd-Carpenter: My Lords, arising out of my noble friend's reply to my noble friend Lord Nugent and to the noble Baroness opposite, can he explain—other than by suggesting that it is an indication of a lack of drive on the part of the management of the Post Office—why there has been since postal codes were announced this enormous delay in bringing them into operation? It has taken many years.
Lord Skelmersdale: My Lords, I thought that I had already done so. It was because of the inability of the Post Office to persuade the Post Office unions to use the machinery which is being installed.
Lord Kaldor: My Lords, will the noble Lord consider adopting the system of post codes prevailing in all other countries? This is a decimal system consisting of numbers only, where successive numbers serve to indicate area, a district of an area, a region within a district, etc., so that anybody on reading the number can, more or less, fix the location of the place. Is not our system, which consists partly of letters and partly of numbers, very difficult to remember and absolutely meaningless to anybody?
Lord Skelmersdale: My Lords, I am afraid that I must disagree with the noble Lord. As somebody who has had in the past an interest in direct mail advertising, I can understand the postal codes in this country perfectly well.
Lord Plant: My Lords, would not the noble Lord the Minister agree that over the country as a whole the Post Office are giving us an excellent service? Would not the workers in the Post Office be deserving of more helpful and constructive criticism from your Lordships' House?
Lord Skelmersdale: My Lords, I am grateful to the noble Lord. As I have been at pains to point out, although there have been difficulties within the Post Office, they are coming to an end.

Reservoirs Act 1975: Implementation
3.17 p.m.
The Duke of Atholl: 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 when they propose to bring the provisions of the Reservoirs Act 1975 into force, and whether it will apply to all reservoirs of over 25,000 cubic metres in capacity.
Lord Skelmersdale: My Lords, we are consulting the local authority associations about the implementation of the Reservoirs Act 1975. The present intention is

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that the provisions of the Act relating to the keeping of information by undertakers, the establishment of registers of reservoirs by enforcement authorities and emergency procedures will be implemented on 1st October 1984; and the remaining provisions mainly relating to regular engineering supervision of reservoir operations on 1st October 1985.
Implementation in Greater London and metropolitan county areas depends on the future structure of local government in those areas. The Act applies to all reservoirs holding or capable of holding more than 25.000 cubic metres in capacity.
The Duke of Atholl: My Lords, I thank my noble friend the Minister for that Answer. May I ask him whether, before bringing into effect the second section of that part of the Act that he was going to bring into force on 1st October 1985, if all goes well, he would consult with some or all of the many conservation bodies that exist in this country; and also whether it would be possible to exclude large raised reservoirs in remote areas where, even if the dams burst, they would do little harm and where they are useful both for fire fighting and as a wetlands habitat for many species of birds, butterflies and dragonflies which are becoming very rare in this country?
Lord Skelmersdale: My Lords, I am grateful to my noble friend. No. I have not in fact thought of consulting the conservation bodies in this respect, but I note the points that my noble friend has made and will study them with care.

Road Safety: USA Comparisons
3.21 p.m.
Lord Chelwood: 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 will summarise the information they have received about casualties and road accidents in the United States of America since the national speed limit was reduced to 55 miles per hour; how these figures compare with the previous three full years; and what conclusions they have reached in the context of growing pressures to increase the speed limit on United Kingdom motorways to 80 miles per hour.
Lord Lucas of Chilworth: My Lords, a national maximum speed limit of 55 miles per hour was introduced in the United States in January 1974. The number of road fatalities and injuries fell in 1974 by 17 per cent. and 7 per cent. respectively. On inter-state rural roads, the reduction in fatalities and injuries was 30 per cent. A large part of these reductions could be associated with the 55 miles per hour limit. United States' casualty figures have been creeping up steadily since then. It is extremely difficult to assess the benefit of the 55 miles per hour limit because many other factors are known to have an effect.
Differences between the United States and the United Kingdom on such matters as speed distributions, road design, driving behaviour and levels of enforcement make the United States' experience of
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little relevance in deciding what limits should be imposed here. Noble Lords will be aware that my right honourable friend the Secretary of State for Transport recently decided that the speed limit on motorways should remain at 70 miles per hour.
Lord Chelwood: My Lords, I am most grateful to my noble friend. In spite of the somewhat hostile press reaction to the decision to keep the speed limit at 70, is my noble friend aware that a great many people regard 70 miles per hour, which often means 75 or 80, as quite fast enough? The decision will therefore he very widely welcomed, as I say, in spite of the remarkably hostile press reaction. Now that the Government have made up their minds about the matter of the speed limit, which will presumably last a number of years, may I ask whether they have open minds about the possibility of introducing a minimum speed limit on dual carriageways, which has worked very successfully and is regarded as having brought down the number of road accidents considerably in many other countries?
Lord Lucas of Chilworth: My Lords, I am grateful to my noble friend for his remarks with regard to the decision my right honourable friend announced on 3rd July so far as the 70 miles an hour limit is concerned. As regards minimum speed limits, we have no current proposals to investigate this matter further. This was done some years ago and did not find favour, particularly for two reasons. One was that it could in fact encourage higher speeds than would be safe in particularly bad conditions. Secondly, there is no evidence that it would have a road safety benefit by producing a reduction in speed differentials over a shorter speed band.
Lord Underhill: My Lords, does the noble Lord recall that when the House was discussing the variation of the speed limit orders on 8th March reference was made to the national speed survey conducted in 1983? On that occasion the noble Lord himself said that it had been received in the department only two or three weeks before, and the matter was being studied. Do I understand from his answers that the study says that there should be no change, or is the matter still under consideration?
Lord Lucas of Chilworth: My Lords, if I have understood the noble Lord, Lord Underhill, correctly, my right honourable friend has made a decision that the limit for motor cars on motorways should remain at 70 miles an hour. As far as that answer is concerned, there is no more to say on the matter.
Lord Mowbray and Stourton: My Lords, would my noble friend agree that, quite apart from whether we should or should not raise our speed limits on motorways or trunk roads, the American connection has little relevance because, apart from the list he read out, the citizens in the United States of America, from what I have seen, regard any journey over 100 miles as having to be travelled by air, and therefore they do not use the roads. Therefore, there is not the same sort of feeling that they want to go faster on roads.
Lord Lucas of Chilworth: My Lords, that may well be a factor. Certainly, conditions in the United States of America vary so considerably from our own that, as I suggested in my original Answer, their conditions have little relevance to our own.
Lord Bottomley: My Lords, would the noble Lord the Minister not agree that the 50 miles per hour limit in the United States means nothing at all? When I was in that country last week, all the cars were going at far in excess of that speed. Can the Minister give an assurance that he will continue to resist the pressure in this country to raise the speed limit to 80 miles per hour?
Lord Lucas of Chiworth: My Lords, how the Americans arrange their road traffic affairs is, of course, their business. I do not think I could possibly agree with what the noble Lord, Lord Bottomley, said. I was in America last year and I noticed a great deal of observance of the limits. He will also know that in different states different levels of enforcement apply. Again, I do not think there is a relevance between what happens there and what happens in the United Kingdom, where distances are so very different.
Lord Mottistone: My Lords, has my noble friend any explanations as to why large lorries and transporters seem to have increased their speeds to up to 70 miles an hour in the last months in a way that is rather surprising? Is there a new dispensation for them, or are they still restricted to 50 miles an hour?
Lord Lucas of Chilworth: My Lords, I had known that there was this noticeable difference to which my noble friend refers.
Lord Jenkins of Putney: My Lords, would the noble Lord agree that, while there is no exact correlation, international comparisons show that the lower the speed limit the lower the number of road deaths?
Lord Lucas of Chilworth: My Lords, no, that is not so. On their own, speed limits are only a contributory factor towards accidents and, as I suggested again in my original answer, very many different factors have to be brought into account when assessing the relativity of road deaths and casualties.
Lord Mottistone: My Lords, could my noble friend answer my question as to whether there has been a dispensation for heavy goods vehicles to go faster than 50 miles and hour?
Lord Lucas of Chilworth: My Lords, there is no dispensation. The speed limits for some commercial vehicles were altered by way of regulation during March of this year.
Lord Mottistone: Altered to what, my Lords?
Lord Lucas of Chilworth: My Lords, to 60 miles and hour.

Foreign Embassies: Planning Control
3.28 p.m.
Lord Sandys: 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 will review planning control of foreign embassies, consulates and their associated buildings with regard to their use and immunity.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, diplomatic missions are well aware that their immunity does not in any way absolve them from the responsibility to comply with planning and listed building consent regulations and building by-laws. The Vice-Marshal of the Diplomatic Corps reminded heads of missions of this in a circular letter last year. There is therefore no need for a review.
Lord Sandys: My Lords, while thanking my noble friend for that very helpful Answer, I would like to ask if she would confirm that this would be a suitable opportunity to communicate with her right honourable friend the Secretary of State for the Environment in regard to serving a dangerous structures notice on the Iranian Embassy.
Baroness Young: My Lords, we are presently negotiating with the Iranians with a view to a settlement by which 16 Prince's Gate would be completely reconstructed and the Iranians would meet our claim for damage to British Government properties in Iran.
Lord Broxbourne: My Lords, would my noble friend confirm that the question of embassies and associated buildings in the context of planning controls is not dealt with sub nominee in the principal Act, the Town and Country Planning Act of 1971? Would she further confirm that Sections 10 and 11 of that Act which extend a Crown exemption to visiting forces and international headquarters again do not specify embassies and associated buildings which are the subject of the Question so appropriately and cogently put by my noble friend?
Baroness Young: My Lords, I shall write to the noble Lord on the particular point he raises about the sections of the Act, on which I do not at present have the information. The Answer I have given in my original reply indicates that diplomatic missions are subject to planning laws and building regulations, and indeed if there were to be a breach of planning permission by diplomatic missions we would protest to the head of the mission, had there been a breach in the law, and we would insist that the breach was rectified.

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

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Bill will be adjourned for dinner at approximately 7 p.m. for a short period. During this adjournment, the appropriate stages of three Scottish consolidation Bills as well as the Pool Competitions Act 1971 (Continuance) Order 1984 will be taken.

Local Government (Interim Provisions) Bill
3.31 p.m.
The Lord President of the Council (Viscount Whitelaw): My Lords, it might be for the convenience of the House if I were to make a very brief Statement about the Local Government (Interim Provisions) Bill. The Government have decided to table an amendment to the Bill at the Report stage to the effect that the present members of the Greater London Council and the metropolitan county councils will continue in office until 1986 but without elections next year. At the same time, further provisions will be introduced to prevent unreasonable actions by the outgoing authorities.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Viscount for making the Statement, especially in view of the accumulating press reports about the position. We are gratified that the result of the Division on 28th June has caused the Government to a significant extent to accept the views of the House in this matter. We are nevertheless disappointed that elections are not to be held and we shall clearly have to reserve our position until we have had an opportunity to consider the amendments in detail after they have been tabled.
Will the noble Viscount be kind enough to answer the following brief questions? First, when exactly will the amendments be tabled? We hope it will be very early next week so that we may appraise ourselves of the Government's exact intention.
Secondly, can he confirm that there will be no interim commissions or other interim bodies as a result of the amendments? Can he clarify further what is meant by the words in the Statement, "going on into 1986"? What precisely is the meaning of those words? Will the Bill further enable by-elections to be held for any reason? Lastly, going back to the Statement, the noble Viscount also used these words in the Statement: "unreasonable actions". Will he be good enough to say what is the significance of those words and what exactly they mean?
Lord Diamond: My Lords, perhaps I may say that we on these Benches are most grateful to the noble Viscount for two reasons: first, for his courtesy in making the Statement and, secondly, for the further evidence which he has shown ever since he became our Leader—I hope the House will permit me to use the phrase "our Leader"—of his willingness to listen to the views of your Lordships' House, especially when they are expressed with great clarity, and to carry them favourably with his colleagues in the Cabinet.
It is a short Statement, but I take it to be a clear acknowledgement that this House has been carrying out its proper and very important constitutional function. The questions that arise are, first, as has already been stated, in relation to the date. It has many
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implications, as the noble Viscount will immediately appreciate, both as to the length of the period and as to what might be the situation in regard to the main legislation going through this House. I should be grateful, therefore, if he would say as much as he can as to what is meant by the words "going into 1986".
So far as our general view of the Statement is concerned, I am bound to say that there are many aspects which require careful consideration. The Government have given this matter careful consideration before making the Statement. Indeed, they have taken, in all the circumstances, a very full time to do it. I think it would be very appropriate that we should reciprocate that and give the Statement the courtesy it requires of very careful consideration.
Viscount Whitelaw: My Lords, I am grateful to both noble Lords for their reception of the Statement, which I felt it right to make, even though of course it is somewhat exceptional because statements of this sort are not normally made in these conditions; but I thought it was right on this occasion.
In answer to the noble Lord, Lord Cledwyn, I am grateful that he feels that some progress has been made. It was my clear view, after the debate last week, that the nominated transitional councils were much disliked by many noble Lords in all parts of the House. It was felt that nominated transitional councils, which in one case would have changed control, were, democratically, not something that should be done.
I represented to my colleagues that this was a very strong view of this House and, while I fully appreciate that other consideration will be given to the Statement I have made and its implications for our Report stage, I am extremely grateful to the noble Lord, Lord Diamond, for having said that I represented this to my colleagues as being the view of this House. I believe it showed that attention was being paid to the view of this House on a very important matter which many noble Lords expressed.
On the particular points that the noble Lord, Lord Cledwyn, asked me, first, I understand that the amendments will probably be tabled on Wednesday. If they can be tabled earlier they will be. I cannot guarantee it, but the best evidence I have at the moment is that they will be tabled on Wednesday. I hope that that will be felt to be in good time to consider them before the Report stage next Monday. If I can do better than that, I will, and I shall be extremely angry if I do not do as well as that: I shall make every effort so to do.
As I have stated, the interim commissions, the transitional councils, have been dropped as an idea, and I know that will be welcomed, at least in many parts of the House.
The phrase "into 1986" basically means April, when the borough council elections would take place. I think it is right to use the phrase "into 1986" because in these new circumstances there may now be various transitional arrangements which ought to be looked at very carefully; but basically April is what is meant.
The Bill will enable by-elections to be held; and, so far as "unreasonable actions" are concerned, your Lordships did consider one such proposal in the paving Bill during the Committee stage this week. I

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think I should confine myself at this stage to saying that the amendments will have to be looked at in detail when they come, and they will cover such "unreasonable actions" as asset stripping and long-term contracts of a major order which might prejudice the position of successor councils.
In answer to the noble Lord, Lord Diamond, and to the points I have not answered so far, April 1986 is basically the time. I am, as I said earlier, very grateful to the noble Lord. Having said that careful consideration should be given to these amendments, I hope that, having taken this somewhat exceptional step by way of informing your Lordships at the first opportunity—despite all the speculation—when the Government had taken a firm position, your Lordships would feel it would be best to leave detailed discussion to the time when the amendments have been tabled and the Bill comes up for discussion on the Report stage.
Lord Alport: My Lords—
Lord Harmar-Nicholls: My Lords—
Noble Lords: Alport! Alport!
Lord Harmar-Nicholls: My Lords, will my noble friend bear in mind that, as we have received three positive expressions of support, it may well be helpful to have a negative? Is my noble friend aware that there will be acute disappointment that the Government have capitulated so soon? Will my noble friend bear in mind that the House on Second Reading gave a majority of 20 to show that the general line was the one the House wanted? To capitulate merely on the result of the first amendment, when we have still the Report stage to go through, is too early a capitulation to bring about happiness among the people who thought that the Government were right. Is my noble friend aware that the grudging acceptance of his Statement by the Benches opposite is so grudging that he has not got out of the problems? Could we still retain our final decision until the end of the Report stage, when the House as a whole could give its final decision rather than capitulating now, so early?
Viscount Whitelaw: My Lords, my noble friend is of course entirely entitled to his view, but I cannot accept the word "capitulation". If I were to accept the word "capitulation", it would mean that I, as Leader of this House and certainly as a Member of the Cabinet, took the view that on no occasion should this House be allowed to change something in a Government Bill, and I do not take that view. I take the view that this House has a role to play. I take the view that it is my job to represent that view to my colleagues in the Cabinet. If my colleagues in the Cabinet agree with me, good. If they do not, very well. It would be absurd to say that my colleagues in the Cabinet always agree with me, but on this occasion they did.
It is my job as Leader of the House simply to put forward what were expressed as the views of many people in all parts of the House, that the transitional councils seemed to them undemocratic; and my colleagues accepted that that was the view of the
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House. It was a view so strongly held that it would be unwise and, in my judgment, wrong to seek to reverse it. That is why this amendment will be put down. I quite understand that my noble friend may feel differently, but I hope he will think carefully about what I have said.
Lord Molson: My Lords, I am unable to agree with my noble friend Lord Harmar-Nicholls in his interpretation of the right procedure in this House. I do not claim to speak for anybody except myself, although it may be that my views are shared by a number of my noble friends who found themselves unable to follow the Government last Thursday. I should like to congratulate the Government upon the response which they have made to the expression of your Lordships' opinion. It shows strength and not weakness to heed reasoned argument, especially relating to important constitutional principles.
I should like to express my gratitude—and I believe that of a number of my noble friends—to the Leader of the House at the way in which he has handled this, matter. In the short time that he has been Leader of this House he has shown understanding, sympathy, flexibility, and above all wisdom. Those are the qualities that make for a successful Leader—and never more than in this last matter, the most difficult that he had had to deal with. I thank him very much for the way in which he has I know personally intervened in order to represent the views of what was—whatever my noble friend Lord Harmar-Nicholls may say—the expressed majority of this House in a critical Division. I read in the newspapers that Mr. Kenneth Livingstone declares that no settlement such as this was in your Lordships' minds when you voted as you did on 28th June. This is a flat contradiction of the dictum of a medieval judge:
"The Devil himself knows not the thoughts in the mind of man."
Viscount Whitelaw: My Lords, perhaps I should simply say to my noble friend that I paid considerable attention to his speech and to what he said. He has made so many kind remarks about me that I think the best thing I can do is to put them in the bank quickly, so that I shall have a little credit before I begin to lose it again.
Baroness Birk: My Lords, as I was involved in this Bill, may I also underline what my noble friends have said about the courtesy of the Leader of the House in coming to the House and being extremely helpful? But I should like to ask him a couple of questions. The Statement itself says "into 1986". In answering questions, the Leader said that it was basically April. Is it not unlikely that the Government will be able to complete this extraordinarily complex process of abolishing the metropolitan counties and the GLC in what will be less than a year, and if it goes on afterwards it could be as much as 18 months, when the same councillors will be in situ without any elections?
I must point out that there has been no precedent for this. Under the 1972 Local Government Act, the elections went ahead, but they were cancelled in 1973 after the legislation had been passed. We on these Benches feel that Parliament is still being treated with contempt since the order to cancel the elections will be

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made before the passage of the main Bill; and the cancelling of elections is, in itself, a very disturbing constitutional departure. I must say we feel that strongly and I have to say so.
Viscount Whitelaw: My Lords, I understand what the noble Baroness has said. I do not think it would be appropriate for me to get into the arguments today, and she will not expect me to do so. The moment to do that is when we come to the Report stage. There are precedents for postponing elections in this way. April seems to be a reasonable date. I have said "into 1986", and given the target of April. I accept that there will be transitional arrangements to be made. I trust that the main legislation will pass through Parliament in the next Session. That is certainly the Government's intention. I think that at this stage I should say no more.
Lord Alport: My Lords, may I ask my noble friend whether the Government have given any thought to the holding of the elections for the ILEA? Does my noble friend realise that, in order to have an effective transfer of responsibility between the present ILEA and the newly-elected one, it is important that the elections for the new ILEA should take place at least six months before the present ILEA goes out of existence? This is extremely important—if I may impress it on my noble friend—for the official administration of education in this great City of London.
Viscount Whitelaw: My Lords, I am grateful to my noble friend. No doubt my noble friend saw that I was in discussion, very properly, with my noble friend the Minister of State. I was wanting to be informed fully of what happened at the Committee stage when my noble friend moved his amendment on this subject. We shall study what was said then. We are considering the situation which that produced, and at Report stage we shall come back with a clear indication of what we intend.
Lord Broxbourne: My Lords, may I ask my noble friend a different, narrower but, I think, not unimportant question? In an earlier answer he gave illustrations of what might constitute unreasonable conduct. Would he advise his colleagues to be very careful in the drafting of their amendments, having regard to the maxim governing the construction and interpretation of our statute law that the expression of one excludes the other, not unduly to narrow the application of unreasonable conduct in this context?
Viscount Whitelaw: My Lords, I am very grateful to my noble friend, who has considerable knowledge of these matters. I was giving only one example precisely for that purpose. I thought it was right to come back at Report stage with a clear indication of exactly what is intended. I expect many noble Lords in all parts of the House will think that what we produce is thoroughly reasonable in the circumstances; but, obviously, the legal aspect of this, and exactly how it is done, requires very considerable consideration.

Police and Criminal Evidence Bill
3.50 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 LORD ABERDARE in the Chair.]
Clause 11 [Meaning of "items subject to legal privilege"]:
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved 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: This amendment is rather more important than at first sight appears. My noble friend Lord Hunt, at my request because I could not be here on Monday, sat from three o'clock until eleven o'clock rehearsing this important amendment. When he opened his mouth he was immediately made to sit down and the Committee stage was adjourned. Therefore one of my colleagues has already spent a full day on this amendment, so I shall deal with it as quickly as I can.
The amendment is important because there is a tendency to treat legal privilege as something which belongs to organised law. In our opinion, legal privilege should go further than that. This amendment accepts that legal privilege is immune from the various methods of search which are being discussed at the moment. However, we are not satisfied, despite what was said in the other place, that absolute legal privilege will apply to bodies which are giving legal advice, very largely to the majority of people who need it—that is to say, to the petty criminal rather than to the serious criminal.
Increasingly in modern times, legal advice is not given by solicitors, still less by barristers. It is given by legal centres—for instance, by the Children's Legal Centre, which is prolific in its advice to families which get into various difficulties, by citizens' advice bureaux, and so on. The Children's Legal Centre acts under a waiver of the Law Society and may therefore technically come under the protection of Clause 11. However, we want to be very sure that it does.
Therefore I have put down the amendment to make it absolutely clear in the Bill that legal advice given to a client does not necessarily mean legal advice given by a firm of solicitors, or by the clerk of a firm of solicitors, to a client. This is a perfectly clear point which we want to be included in the Bill. Solicitors, I say with respect to my many friends who are solicitors, are a bit of a closed shop and bit exclusive. They like to give to their clerk more authority than they give to a fellow solicitor who is working for a charitable organisation rather than for a firm of solicitors.
The matter goes further than that. The nature of the inquiry and the advice given in such cases are invariably recorded in an efficient legal centre. Because such centres would contain things like a confession by a worried offender, who wishes he had not done it and who wants to know what he ought to do now, they could provide evidence for his conviction. So the argument that they are not evidence, in the sense that a dead body is evidence, will not hold up. They are given in the full understanding of confidentiality. If the confidentiality is breached, or is expected to be breached, it means that these myriad, rather unfortunate people who get themselves into trouble without being major criminals will be less and less anxious and more and more reluctant to engage the help of anybody. This is against the interests of all of us. It is also entirely unreasonable that the closed solicitor's shop should remain closed when one considers that the bulk of legal advice is nowadays given outside that shop and that the people who most need it will tend not to come for it unless it is acknowledge to be covered by Clause 11.
The Minister assured the Committee in another place that the personal records of advice centres would be covered in Clause 12. This is probably true, but I do not think it is good enough. If a member of NACRO, of which I am now president and of which for many years I have been chairman, should give advice to somebody who has got himself into trouble, he should certainly be covered by the provision of Clause 12. However, this is not the same as technical legal advice given by a body with technical legal advisers, in the form of solicitors or barristers, which should rank at exactly the same level as the advice given by Messrs. Sue, Grabit and Run, the firm that Private Eye speaks about.
I have said sufficient to make my objective clear. It is very important. If something of the kind is not done, it seems clear that, under Clause 19, personal records are not protected from seizure during a search for possible evidence of a crime. Therefore a constable may seize any article or item, except those which he has reason to suspect to be subject to legal privilege. Therefore the difference between a solicitor's advice to a client and that of the Children's Legal Centre, or any other legal centre's advice to a client, is absolute. One is totally privileged; the other is partially privileged. I believe this to be quite unreasonable. I do not believe that this is the Government's intention, but whether or not it is their intention the amendment should be inserted into the Bill. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): In general, documentary or other records concerning a client which are made in connection with the giving of legal advice to the client will either already be protected by legal privilege, as defined in paragraphs (a) to (c) of subsection (1), or they will not constitute the substantial evidence of crime necessary to get an application for access to them off the ground.
So far as the first limb of that argument is concerned, it is clear that a tape recording of an interview between a solicitor and his client concerned with the giving of legal advice is protected by privilege,
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as is any note of the interview made by the solicitor. The term "communication" which appears in paragraphs (a) to (c) of subsection (1) already includes oral as well as written exchanges. This may go wider than the noble Lord's question, but it is important to have the explanation on the record.
Regarding the evidential threshold, there is likely to be a wide range of records in a solicitor's office which, while perhaps not themselves subject to legal privilege, might be of interest to the police but would not constitute admissible evidence of substantial investigative value to them. So, for example, the fact that such-and-such a person is currently a client of Mr. So-and-So may be a desirable piece of intelligence for the police to check over, but it is hard to see how it could constitute substantial admissible evidence of crime. So the police could not apply for access to a list of clients under Schedule 1. If they did, the solicitor would have an opportunity to argue his case before a judge as to why such an application should fail. The Bill simply does not provide for fishing expeditions of such a kind. That protection is in the Bill, and I do not believe that we need to duplicate it as is proposed. By the same token, that which is not evidence may not be seized in the course of a search conducted for other purposes. That is made clear in Clause 19.
As to what constitutes legal advice—and the noble Lord first addressed himself to this question—the legal advice does not have to come from a firm of solicitors. It can come from a law centre or from an advice centre of some kind. What matters, in the case he gave as an illustration, is that the member of NACRO should himself be legally qualified. The fact that he is a member or an employee of NACRO itself will not suffice on its own.
If I may return to the theme I was developing, it seems to us better for the definition of legal privilege in the Bill to follow that employed in the law of evidence. The question that arises about the desirability or otherwise of granting the police access to other forms of material which satisfy the evidential requirements in the Bill and which are not excluded material should he decided in the light of all the circumstances of the serious crime concerned by the judge, on the basis of his determination of the balance of public interest. This is the test required by Schedule 1(2), and I think it is to be preferred to an uncertain extension of the concept of legal privilege in the abstract which might flow from the noble Lord's amendment.
Lord Denning: May I just say a word? The words,
"items subject to legal privilege"
are well understood in law. In the civil law, we have a whole ream of cases which tell us that legal advice is privileged from disclosure, and that the assessing of legal evidence and the collecting of it is protected from disclosure. Our cases show the law on this matter exactly. It would be a pity to have a very wide and uncertain addition to the material, such as is proposed in this amendment. It will be much better to restrict the excluded material to personal records and to leave the clause as it is. I hope that this amendment will not be pressed.
Lord Donaldson of Kingsbridge: I certainly agree that the definition needs to be clear. One of my

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complaints is that it is not in the least bit clear—although it may be to a lawyer. For example, there is mention in subsection (1)(b) of,
"communications between a professional legal adviser and his client".
Does that mean a solicitor's clerk? Will he be included? If he is, then if in the Children's Legal Centre there are six or seven solicitors or barristers giving advice, why should this provision not include one of their clerks? This provision does not seem to be in the least bit clear to a layman.
I do not know whether the Government can make this clear. If the privilege is to be restricted to a communication by a registered solicitor, then the Government should say so. If it is, then it meets half my case. It means that in the case of the Children's Legal Centre, which has a number of expert solicitors working for it full time, and of organisations such as Justice, which have barristers and solicitors working for them, the advice of the barristers and solicitors on behalf of which those organisations give advice will be privileged. But that is not clear to the ordinary layman. With his vast experience, the noble and learned Lord, Lord Denning, doubtless knows the answer but I am only saying that I do not. I am trying to find out what the answer is. It ought to be much more clearly put in the Bill.
Lord Elton: If I may answer the noble Lord's specific question, both barristers and solicitors are included because they are legally qualified people. I understand that solicitors' clerks are included also for this purpose because they give advice on behalf of the solicitor and therefore come under his professional responsibility.
Lord Donaldson of Kingsbridge: In the case of the Children's Legal Centre, its clerk will be doing exactly the same thing. Will he or will he not be covered? I wish to know the answer to that question; it is very important.
Lord Elton: I must have missed the noble Lord's question because I thought that I had just answered it. Will he please repeat it?
Lord Donaldson of Kingsbridge: The noble Lord made mention of solicitors' clerks. An organisation such as the Children's Legal Centre is not a firm of solicitors but it has solicitors in it, and it has a chief clerk. If that chief clerk gives advice, is it or is it not subject to legal privilege?
Lord Elton: In that case, it will depend on whether or not the clerk is himself a registered solicitor.
Lord Donaldson of Kingsbridge: But the solicitors' clerk is not a registered solicitor.
Lord Elton: The solicitors' clerk is giving advice on behalf of a solicitor who has a professional responsibility to discharge, and which is discharged on his behalf by the solicitor's clerk. The noble Lord is now asking whether somebody who gives advice on a body which consists in part of solicitors and in part of others is covered in the same way. The answer I think is logically no—and I believe that is also the right answer to his question.
Lord Donaldson of Kingsbridge: As I suspected, the situation is still not very clear. The chances are that one will have to find out whether the clerk in a legal centre was speaking as a direct result of a registered solicitor or as a direct result of somebody else giving advice. This does not seem to me to be the kind of point that laymen would think very clear; still less the kind of point which the sort of petty offender we are discussing would have the faintest idea about.
I will not press this amendment to a Division because I should like to discuss this matter with my noble friends. However, it seems that there is something lacking in the Bill; that the privilege of a man who is protected by his lawyer, for which he has paid, should be no greater than the privilege of a man who is being protected by a legal centre which he uses for nothing because he cannot afford to pay. There is a nasty element here which I do not like and I shall return to it on Report. I will not withdraw the amendment because I see that my noble friend is going to say something.
Lord Mishcon: I hope that what your noble friend is going to say will be useful. Is it not the case that the question of privilege is covered by the contractual relationship of the solicitor to his client? Therefore, if a clerk acts on behalf of a solicitor, is he not acting as the deputed person of the solicitor in regard to that contract? I believe that what was worrying the noble Lord, Lord Donaldson, was the question of legal centres and places of that kind. Is it not the case that the same contractual relationship would exist with the solicitor at the law centre or at the Children's Legal Centre, as the case may be? If that solicitor deputed a clerk or an assistant of his to advise, would that relationship not be in exactly the same area as the normal one of solicitor and client?
Lord Elton: The noble Lord has expressed more lucidly and with more conviction—and certainly with the benefit of his experience—that which I was trying to say. This matter depends on the contractual relationship between the solicitor and the client. When it comes to a law centre, such a centre is staffed, as I understand it, by legally qualified people on whose behalf the adviser will speak to the client. Since the noble Lord will be withdrawing his amendment, the only other observation I wish to make is that it is important that this point should be generally known. It is not necessary to have it spelt out in detail on the face of the Bill so that petty offenders can understand it because they will not be reading the Bill anyway. What we want to do is to establish that this point is clearly understood.
Lord Donaldson of Kingsbridge: I am grateful for what has been said and I will think about it. This point is a little more important than the noble Lord has suggested. It is important that there should not be any particular privilege extended to a "closed shop". We who are not lawyers have as some of our best friends people who are lawyers, but we do not like that feature of the law. We think it is quite ridiculous to pretend that it does not exist, and exist extremely powerfully. I am speaking for the innocent, sometimes, and the more often guilty, who are poor and ill-advised, and

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who should be encouraged to go to centres where legally competent people can give them advice.
I will not insist on the noble Lord saying anything, but I should like him to take this point away and look at it. Would the Bill be any worse if it expressed the point that I have made? It is clear that no ordinary petty offender would understand the law. It is clear that the Children's Legal Centre does not do so because it asked me to raise this point now. On withdrawing this amendment, I ask whether there would be any objection, and I ask the noble Lord to consider this very carefully to see whether, in the interests of justice for the underdogs, something should not be done.
Lord Elton: The noble Lord asked a direct question to which I can give a direct answer. As the amendment is drafted, the Bill would be worse. If the noble Lord has thoughts about other matters, he can either write to me or table an amendment at a later stage. But for the reason which he may now have forgotten, but which I adduced at the beginning of this debate, the amendment as it stands would weaken the Bill and that point was quite clearly made by the noble and learned Lord, Lord Denning.
Lord Donaldson of Kingsbridge: After all that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
4.10 p.m.
Lord Elton Lord Elton moved Amendment No. 65:
Transpose Clause 11 to after Clause 9.
The noble Lord said: The purpose of this rather unusual amendment is to transfer Clause 11 to after Clause 9. When the Bill was introduced in another place "items subject to legal privilege" formed part of the category of "excluded material". As such, it was logical for Clause 11, which defines these items, to appear after Clause 10, which defines "excluded material". However on Report in another place the Bill was amended so that the items subject to legal privilege are no longer part of the category of "excluded material" but form a separate category in their own right. As a result it now makes more sense for Clause 11 to appear after Clause 9 rather than Clause 10.
In support of that, I should only add that if any of your Lordships have worked out, as I did before we started debating Clause 8, a sort of flow chart of how the thing works, it is quite obvious that the clause is in the wrong place now, and where we propose to put it is the right place. I beg to move.
On Question, amendment agreed to.
Clause 12 [Meaning of "personal records"]:
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 66:
Page 12, line 32, at end insert—
("; or
(d) to his education, training or similar activities involving counselling or assistance given or to be given to him.").
The noble Lord said: This is a rather simpler amendment, and it is an appropriate amendment. It is to ensure that excluded material in its definition does include, and therefore protect from the powers of search, personal educational records held by educational establishments and training agencies which concern pupils, students and trainees. It is perfectly obvious that these records are frequently extremely confidential, often have rude remarks about parents and other things of that sort, and it is clearly essential that they should be excluded.
I think from what was said in Committee in another place the Government did say that confidential school records which identified pupils would as a rule constitute personal records under Clause 12 and would therefore be excluded material. The same objections apply to this assurance as to the one in the earlier amendment. The judges, when examining an Act, do not take any notice of what is said in this House or in the other place. I want to be sure that these clearly damaging, or potentially damaging, and confidential records are covered in Clause 12. If the noble Lord the Minister will assure me in the clearest possible way that they are, I shall be content. If not, I think something should be added to the Bill as I have suggested: that there should be a further subsection referring:
"to his education, training or similar activities involving counselling or assistance given or to be given to him".
I beg to move.
Lord Elton: I will indeed do my best to reassure the noble Lord, and I think I can do it perhaps by what I will try to make a brief explanation of how the system works. Your Lordships will know that the purpose of excluding certain kinds of personal records—the kinds already set out in Clause 12—from the scope of the new powers conferred by the Bill was to protect the ability of the caring professions and their counterparts to do their job. Ministers carefully explained on many occasions that it was very unlikely that their records would ever fall within the scope of these powers in the first place, since they would not constitute evidence of crime admissible in proceedings, whatever their value or interest as an investigative aid. It is now history that these reassurances failed to allay the anxieties expressed both within and outside Parliament; and accordingly certain categories of excluded material were established.
I think it is clear that personal records maintained by, among others, school teachers, university tutors and, for example, members of university careers advisory services already fall within the protection of paragraph (c) of the clause. Such persons certainly have responsibilities for personal welfare by reason of their office or occupation. It is worth noting that the Royal Commission expressly referred to teachers' records as falling within the scope of the power of search they recommended—that is in paragraph 40 of chapter 3—and so this is another respect in which the Bill as at present drafted does not extend the powers recommended by the commission as far as the commission thought proper.
There remains a range of records which might be maintained by other persons or bodies—perhaps a local education authority—which is not clearly

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covered by paragraph (c). We do not believe that it is necessary specifically to cover them. There are very many sorts of documents—educational records among them—to which in practice the new powers conferred by the Bill will simply not apply. They do not pass the evidential threshold created by paragraph 2 of Schedule 1; and, as has already been made clear, the Bill simply does not provide for the police to obtain an order for the production of a whole set of different individuals' records on the basis that among them there might be some piece of information which suggested that one of those individuals was responsible for a certain offence.
But there is no point in adding interminably to the categories of excluded material specified by the Bill: if we added educational records there would be no rational reason to resist the many proposals that have been made for other kinds of records to be, as Samuel Goldwyn would have put it, "included out". Clause 12 would have to mention statistical records, research records and all the other kinds of records that have previously been put up for membership of the Clause 12 club. This, I think, would be undesirable, whether or not the public interest in these particular circumstances was such as to justify an order. It seems to me that the position in the Bill is therefore what the noble Lord wants to achieve, and I hope that he will be reassured.
Lord Donaldson of Kingsbridge: I am not entirely reassured hut I do not think it is a matter to press at this stage. The truth is that it is an awful pity when you are bringing in a very controversial Bill of this kind to add unnecessarily to the controversy. The youth movement throughout is thoroughly nervous about the exposure—as they see it—of reports on them; there is a great deal of feeling about it. A lot of schoolteachers are unhappy about it, and it seems to me to be very unnecessary not just to put something in to put their minds at rest. Sooner or later, these things will come up and they will be settled in the courts and then there will be something to go on, but at the moment I think the situation is very difficult. However, I shall not press the amendment now. I will look at both amendments and see whether it is worth coming back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees (Lord Aberdare): The Question is, Whether Clause 12 shall stand part of the Bill?
Lord Elwyn-Jones: To try to be helpful, I think we did discuss a number of these clause-stand-part amendments and there was an indication that a number of them would not be moved. Perhaps that may not be very helpful.
The Chairman of Committees: That is very helpful; thank you very much.
Clause 12 agreed to.
Clause 13 agreed to.
The Chairman of Committees: Clause 14, Amendment No. 67. Lord Campbell of Alloway?
Lord Elwyn-Jones: I think that falls with an earlier amendment.
[Amendment No. 67 not moved.]
Clause 14 agreed to.
Clause 15 [Search Warrants—safeguards]:
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Houghton of Sowerby: May I ask a question on Clause 15? On page 14, paragraph 6(b) says, in connection with the service of a warrant, that the warrant
"shall identify, so far as is practicable, the articles or persons to be sought".
In dealing with the Video Recordings Bill the other day we passed Clause 17, subsection (2), which said that a constable entering and searching premises 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 the Act. I assume that Clause 1 5(6)(b) of the Bill under consideration at present is superimposed upon Clause 17 of the Video Recordings Bill.
Lord Elton: The noble Lord is right, and he will find in subsection (1) of Clause 15:
"This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises",
and so on.
Clause 15 agreed to.
4.20 p.m.
Clause 16 [Execution of warrants]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 68:
Page 14, line 32, at end insert ("reasonable")
The noble Lord said: Perhaps I may deal with Amendments Nos. 68, 69 and 70 together.
Amendment No. 69: Page 15, line 10, at end insert ("and shall take reasonable steps to ensure that the premises are no less vulnerable to the unlawful entry of trespassers than they were before he had entered them.")
Amendment No. 70: Page 15, line 17, at end insert—
("; and
(c) whether any, and if so what, damage was done to the premises or to things in them during the search.")
These amendments belong very much to the same family. Their purpose is to give further protection to the owner and occupier of premises who has had those premises searched. The purpose of Amendment No. 68 is to ensure that where entry occurs upon premises other than at a reasonable hour such entry occurs only if the constable executing it has "reasonable" grounds for suspecting that the purpose of a search may be frustrated if entry were to take place at a reasonable hour. With great respect, it would seem to me that the word "reasonable" there is clarificatory of the main purpose of that subsection, and that it does not in any way weaken its general purpose.
The effect of Amendment No. 70 is to make it necessary in any event for the constable who has effected such a search to endorse upon the warrant the

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added information as to whether or not any damage has occurred on the premises concerned, and, finally, to leave a note in writing of such to the owner-occupier of those premises whether or not it has been requested.
The effect of Amendment No. 69 is to make it incumbent upon the police in executing a warrant to leave the premises in the same condition as that in which they found them. It has come to the notice of myself and many of my noble friends that some months earlier this year the Gas Board effected entry under the statutory powers into premises somewhere in England but failed to secure the premises when they left. When the unfortunate occupier returned from holiday he found that not only was he without a gas supply but his television set and other household items had disappeared for ever. The purpose of Amendment No. 69, which in my submission is a very laudable and proper one, is to place a specific duty upon the authority that effects entry—namely, the police force—to be responsible for leaving the premises in no worse a condition than they were when entered. I beg to move.
Lord Denning: I suggest there is nothing wrong in these amendments. The word "reasonable" would be implied by law, anyway, even if it was not written in, but it is just as well to write it in. Equally, the words,
"take reasonable steps to ensure that the premises are no less vulnerable"
would also be written in by law, but it is probably better to do that with the amendment and to have it on record. Therefore, to accept the amendments will do no harm, and they are only writing in what the law would in any case imply.
Lord Donaldson of Kingsbridge: On the question of the wording, I totally agree with the intention, and if the noble and learned Lord, Lord Denning, says it is all right then I am satisfied. However, normally the words,
"no less vulnerable to the unlawful entry"
mean "as vulnerable" or "more vulnerable". I cannot believe that that is the intention.
Baroness Phillips: Can my noble friend on the Front Bench further explain the example he gave? It was not clear to me whether the Gas Board operators actually removed the articles having made unlawful entry, or whether they made the entry with the police and then other things were removed. That was not very clear when my noble friend was illustrating his amendment.
Lord Elystan-Morgan: Perhaps I may clear that matter up now, so far as is possible. The example I gave was of the Gas Board effecting entry into a dwelling-house under statutory powers. It effected entry in order to disconnect the gas supply. It did so, but left the premises in a state where they were no longer burglar-proof. In consequence, it appears, of the perfectly lawful entry of the Gas Board, but also in consequence of its negligence in not leaving the premises burglar-proof, burglary did occur—not, of course, on the part of the Gas Board but by some other persons unknown—and a television set was taken, together with other items.
Baroness Phillips: I am still not clear. My noble friend said it was lawful entry. Is he saying that in the absence of the person who owns the house—I have not actually met this before, and this is what puzzles me—the Gas or Electricity Board can effect entry and cut off the supply?
Lord Elystan-Morgan: Yes. As I understand it, there are dozens of statutory powers which allow entry in various circumstances. It may well be the case, as the noble and learned Lord has already said, that there is a duty at common law, and under statute generally, upon those authorities exercising entry to leave the premises in a proper state; but as the noble and learned Lord said—and I am grateful to him—the Bill would lose nothing of its force and purpose if such a duty were to be spelt out specifically.
Lord Boyd-Carpenter: A point has been made, but the noble Lord, Lord Elystan-Morgan, has not answered it. Surely Amendment No. 69 does the opposite of what he intends. Surely what he intends is that the premises shall be left "no more vulnerable". To provide for a statutory duty to leave them "no less vulnerable" seems a rather brutal treatment of the occupier. It may be that I have misunderstood a possible Welsh interpretation.
Lord Elystan-Morgan: It is not a Welsh interpretation so much as a legalistic interpretation. In fact, all the amendment seeks to do is leave the premises in no worse a state than they were. There is no incumbency on the authority that exercises the power of statutory entry to improve the situation. On the other hand, it is the law that it must not make it worse.
Lord Boyd-Carpenter: With great respect, the noble Lord's amendment does not effect that.
4.29 p.m.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): At the outset, may I say that the example offered by the noble Lord, Lord Elystan-Morgan, about the official of the Gas Board ought not to be taken too far on these amendments, because Clause 16 does not apply to warrants executed by the Gas Board, and so on, but only by police officers. However, I think the noble Lord was not proposing that we take his analogy too far.
Subsection (4) introduces a new safeguard into the law governing the execution of search warrants. The subsection requires the warrant to be executed at a reasonable hour unless circumstances dictate otherwise. If, for example, the police have obtained a warrant under the Theft Act to search a safety deposit box at a bank for stolen jewels which it is thought are lodged there, it is plainly right that the warrant should be executed at the earliest opportunity that the bank is open for business. It would be perverse and unnecessary for the police to attempt to conduct the search at, say, 3 a.m., and I am sure that they would not, in practice, want to do so.
That is, of course, a straightforward case. A straight-forward case of another kind might occur when the police execute a warrant to search for explosives which it is feared will be used for the purposes of terrorism.

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They will obviously have to act with great despatch and to carry out the search, day or night, before the birds have flown.
Between these two extremes lies a wide spectrum of circumstances. Most criminals who conceal unlawful articles or evidence of crime on their premises are neither as reliable and accommodating as a bank or as elusive as suspected terrorists. It seems to the Government that the sensible test to apply to the actions of an officer charged with executing a warrant is not the objective test of reasonableness but rather the test in the Bill, which goes to the bona fides of his beliefs. We take this view for two reasons.
First, the officer might have no specific information relating to the individual concerned to go on. Let us take the case, for example, of someone suspected of handling stolen goods. The police, acting on information, obtain a warrant to search his premises. The police always try to execute a warrant when the occupier of the premises is present, for various reasons. He can witness the search; and, if the articles sought are found, he can be arrested there and then. If the police arrive at his house when he is not there, he will find out soon enough that they are after him and dispose of anything that he was carrying on him. It is therefore important from an operational point of view for the police not to turn up to execute a warrant too late in the morning, after he has gone out.
In the case that I have outlined, the officer responsible for the execution of the warrant may have an honest belief, based on police experience generally, that unless he conducts the search at, say, 6.30 a.m. the purpose of the search will he frustrated. It may be that on that occasion the officer turns out to be wrong, and the person would have remained in till 9 a.m.; or it may be that the police were already 10 minutes too late. It seems to me very difficult in such a situation of inevitable operational uncertainty to raise the level of the test required.
My second reason for wishing to resist the amendment is this. It would, I think, be unjust if a search was wholly successful, in the sense that stolen goods were recovered, but rendered unlawful by the simple fact that the police could not prove that they had reasonable grounds for believing it necessary to search at an hour subsequently held to be unreasonable. The police might be liable in damages, and that would be a result which, I suggest, does not accord with a commonsense view of such an occurrence.
There is room for more than one view as to whether we should put a provison such as this into the Bill at all, but I am clear that it would be going altogether too far to open up the possibility of rendering an otherwise successful search unlawful except in a case where the police were acting gratuitously or worse.
I come now to Amendment No. 69, to which the noble Lord, Lord Elystan-Morgan, also spoke. I fully agree with the noble Lord that the police should take reasonable steps to ensure that premises are secure after a search if the occupier is not present. The only difference between us lies in our approach. We felt that this point was best covered in the code on searching premises which the Home Secretary is required to issue under Clause 63. I refer your Lordships to
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paragraph 5.10 on page 56 of the red booklet containing these codes, which states:
"If premises have been entered by force the officer in charge shall, before leaving them, satisfy himself that they are secure either by arranging for the occupier or his agent to be present or by any other appropriate means".
This seems quite clear and I believe fully covers the point. It also has the advantage of governing all searches, whereas the present amendment is limited to searches under warrant. Any officer who is in breach of the codes will be liable to disciplinary proceedings under Clause 64(8), and this will ensure that the code is adequately enforced. A further advantage of the provision in the draft code, as compared to the amendment, is that the requirement to leave premises secure is a general one. In contrast, an officer could comply with the terms of the amendment if the premises were unsecured when he found them and unsecured when he left them, which would not be a satisfactory state of affairs.
In our view, securing of premises is an operational aspect of searching which is and can be more appropriately dealt with in a code of practice. It does not go to the lawfulness of the search itself. In view of my remarks, I hope that the noble Lord will not want to press this amendment. Incidentally, I share the anxiety of my noble friend Lord Boyd-Carpenter about the wording of that amendment, but I have addressed myself to what I believe to be in the mind of the noble Lord.
I come now to Amendment 70, to which again the noble Lord referred. I agree completely that a formal record should be made of any damage caused by the police in effecting entry to premises which they search or in conducting the search itself. Allegations are made from time to time that the police cause unnecessary damage, and it is clearly desirable that in the event of a complaint or a claim for compensation there should be a way of establishing what may have been damaged by the police, to be distinguished from damage caused before they came or after they left.
I suggest, however, that the point is already adequately covered in the draft code of practice for the searching of premises, and does not appropriately belong in Clause 16. I draw your Lordships' attention to paragraph 7.1 viii of that code, which requires a record to be made of any damage caused and the circumstances in which it was caused. I ask your Lordships to note that this requirement applies to all searches, whether made under the authority of a warrant or not, so that the draft code already goes further than the terms of the amendment.
I do not think that anything will be gained by adding this requirement to Clause 16(9). The point of that subsection, which requires warrants to be returned to the issuing court to show whether the object of the warrant was found, is to enable magistrates to obtain feedback about the use to which their warrants are put and so to assist them in scrutinising future applications. If it appears that officers at a particular station obtain warrants but rarely find anything when they search, I would expect that the magistrates would wish to explore fairly rigorously the case for a warrant on the next occasion that one is sought. However, whether or not any damage is caused is extraneous to this process of feedback, and will not assist the

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magistrates and their clerks in the quality control, if I may call it that, of applications. I hope therefore that the noble Lord will feel free not to press that amendment either.
4.37 p.m.
Lord Elystan-Morgan: We very greatly appreciate the full and detailed answer given by the Minister, although for our own part we should not have sought to demand such intricate detail upon each and every matter raised.
May I apologise to the noble Lord, Lord Boyd-Carpenter? I have now realised that there is indeed a printer's error in the second line of Amendment No. 69. It should read, "no more vulnerable", and not, "no less vulnerable". I am sure that that is due only to my own unfair hand in having prepared the manuscript in the first instance and that the fault lies entirely with myself.
We are disappointed that the Minister has taken such a negative attitude. It is true that those matters are either covered by the code of practice or, as the noble and learned Lord, Lord Denning said, are already implicit in the terms of the Bill. But since one is dealing with a substantial interference with private rights and privacy, we genuinely believe that it would have strengthened the purpose of this part of the Bill to have spelled them out in the Bill itself. In our submission, there is a difference between something that is a firm, specific statutory obligation and something that is referred to in the code of practice.
However, we do not seek to divide the Committee upon these matters but reserve our right to raise them again at the appropriate stage on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 and 70 not moved.]
On Question, Whether Clause 16 shall stand part of the Bill?
Lord Inglewood: May I make one very brief comment on the first sentence of Clause 16? When the Committee last met, an amendment of mine was sandwiched between two amendments from the other side of the Committee and there were cross-currents of conversation about a Division and about dinner, and my amendment was lost in the middle. I should just like to make this point again, and I can do so very properly on the first sentence of Clause 16.
Some of the functions to which we have been referring require great responsibility, and considerable powers are given to all constables and every constable, irrespective of their very limited service, which can be all too brief.
There was a brief reply from the Minister, in which I think he said he thought it was more appropriate to put this in a code rather than to amend the Bill. I am not sure that he is right. I should like the Minister to look at this again because this has come up for the second time in our discussions on the Bill and I should like to feel that it might be considered again. I certainly hope it is not overlooked.
Lord Trefgarne: I hear what the noble Lord says. At this moment I do not think I can go further than my noble friend did when he replied to my noble friend's earlier consideration of this point. Perhaps he will allow me to study what he has said and see if there is anything further I can tell him.
Clause 16 agreed to.
Clauses 17 and 18 agreed to.
Clause 19 [Seizure of articles]:
Lord Mishcon Lord Mishcon moved Amendment No. 71:
Page 18, line 12, after ("privilege") insert ("or excluded material.").
The noble Lord said: I say this with a smile to the Front Bench opposite. I propose very pithily to move this amendment even though it may be an important amendment. Maybe the speed with which I do it will be an encouragement to others, not only in moving amendments but also, if I may say this most humbly, in answering them, because we have a long way to go.
Having said that, I refer the Committee to the fact that Clause 19 deals with the question of seizure. We have up until now been dealing with the question of search, and the power of search and the warrant in regard to a search. In regard to seizure, the present law as I understand it, which is summarised in the Report of the Royal Commission on Law and Procedure at paragraphs 34 and 35, is that the police can seize evidence in the home of someone who has been arrested or while carrying out a warrant.
Under this Bill the power of seizure is indeed extended. The situation under Clause 19 is that a constable is allowed on to premises. Then in certain circumstances, with the consent of the occupier if he is there, under the power conveyed by a search warrant or after making an arrest, he can seize any items except, as the Committee will see, items which are covered by legal privilege.
He can do that if he suspects, under subsection (4), that there are reasonable grounds for believing—not merely suspicion but reasonable grounds for believing—that the item has been obtained in consequence of the commission of an offence and it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
The peculiar position is that the Government in drawing up this Bill have recognised that there is an overriding public interest in protecting the confidentiality of medical and social work records in regard to the general search power. However, that exclusion does not appear in this clause when it comes to the question of seizure. There is a very serious lacuna here.
If I may say this in conclusion of my submission—and I hope that bears out the promise I made at the outset of my remarks—there is a very recent case which has been brought to our notice. Only some weeks ago at a health centre in Birmingham two uniformed officers entered the premises with the receptionist's consent as they were investigating an offence of criminal damage to the centre. They asked to have the medical records of two suspects in order to establish that those individuals had visited the health centre on the night in question. They were refused that

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by the receptionist. Under this Bill the police would not be able to obtain a search warrant for those records. However, under Clause 19, once they had got in there they could seize them. I repeat that this appears to be an undesirable lacuna and I ask the Committee to support this amendment.
Lord Elton: I will try not to exceed the noble Lord's six minutes in his admirably brief introduction. The clause, as drafted, will ensure that the police may not seize items subject to legal privilege found in the course of a lawful search which is also evidence of an offence. This amendment seeks to extend this protection to excluded materials. But the same considerations of the confidentiality of an accused's defence do not arise in this sort of case and I remind your Lordships that it is only legally privileged material which for this reason has a special status under the rules of evidence. Excluded material may now he seized by the police in the course of the search of an arrested person's premises and may now be admitted in evidence in criminal proceedings. It will continue to be admissible after the Bill is enacted. It may indeed constitute crucial evidence at a trial. So the amendment would curtail existing and useful powers. It has to be remembered that the fact that material may be excluded does not mean that it is or should be absolutely protected from coming into the hands of the police. I remind the Committee that excluded material may be obtained by the police under the second set of access conditions in Schedule 1 if there is already provision for its seizure.
With the exception of items subject to legal privilege, the clause will indeed allow the police to seize evidence of offences even though that evidence may constitute excluded or special procedure material. If, in the course of a lawful search, the police came upon such evidence it would be arbitrary and unrealistic to expect them to leave such an article alone. For example, if the police had obtained a warrant under the Misuse of Drugs Act 1971 to search a social worker's house for controlled drugs and in the course of that search properly happened upon excluded material constituting evidence of serious crime by one of his clients, then in our view it would be right for them to continue to have power to seize it subject to the conditions in the clause. Indeed it is not clear what purpose would be served by preventing this. That does not mean that once the police have entered the premises they may search at will for any evidence.
Lord Mishcon: In order to shorten the debate, I wonder whether the noble Lord would give way. This is the very point that was raised in another place. With great respect it has no relevance, because there is not the slightest doubt that unlawful drugs are among items which can be seized under the present law. Here we are dealing not with drugs and things of that kind but purely and simply with the records of social workers and doctors. As I said, it was an error made in another place and I had hoped it would not be repeated here.
Lord Elton: The principle which I am addressing is this. The Bill sets out very clearly and very strictly the grounds on which the police may have access to search for something. It also sets out very clearly and very
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strictly the extent to which it may be searched. For instance, if the police are looking for stolen video recorders, they cannot go rummaging through correspondence and documents. Judging by the haste at which the noble Lord was wishing to move earlier, I had not realised he was waiting for support of any sort.
Lord Mishcon: I was not. I was just so happy that the noble Lord, Lord Houghton of Sowerby, had found another way of amusing himself this afternoon, that is all!
Lord Elton: If I may remind the noble Lord, what I said earlier is that the warrant in that case would be for drugs. If they therefore found something else, then if it was admissible and relevant evidence, it would be perfectly proper for them to be able to take it. The noble Lord took my example the wrong way round. He thought that my example was of a policeman who was looking for papers and had picked up drugs. I have specified a case where the policeman was looking for drugs and found papers which were evidence of a serious crime committed by one of the clients of the persons whose premises he was at that time searching. The noble Lord is suggesting that, although they are admissible evidence, they should not be capable of being seized.
Lord Mishcon: I am suggesting that, if they are in the records of social workers or in the records of doctors, they should not be seized. They will not even be capable of forming part of a search under the provisions of the Bill. I have put the arguments as well as I can. This is regarded by us as a serious point. If the Minister is not able to concede that it is a serious point and that social workers and doctors are so worried about this lacuna, I would obviously wish to seek the opinion of the Committee.
4.50 p.m.
On Question, Whether the said Amendment (No. 71) shall be agreed to?
Their Lordships divided: Contents, 104: Not-Contents, 109.

DIVISION NO. 1

CONTENTS

Airedale, L.

Cooper of Stockton Heath, L

Amherst, E.

David, B. [Teller.]

Ampthill, L.

Dean of Beswick, L.

Ardwick, L.

Denning, L.

Attlee, E.

Diamond, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Balogh, L.

Elwyn-Jones, L.

Banks, L.

Elystan-Morgan, L.

Beaumont of Whitley, L.

Ewart-Biggs, B.

Beswick, L.

Ezra, L.

Birk, B.

Foot, L.

Boston of Faversham, L.

Gaitskell, B.

Bottomley, L.

Gallacher, L.

Briginshaw, L.

Gifford, L.

Brimelow, L.

Gladwyn, L.

Brockway, L.

Graham of Edmonton, L.

Bruce of Donington, L.

Grimond, L.

Buckmaster, V.

Hale, L.

Burton of Coventry, B.

Hampton, L.

Caradon, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Hatch of Lusby, L.

429

Hooson, L.

Rea, L.

Houghton of Sowerby, L.

Roberthall, L.

Hughes, L.

Rochester, L.

Hutchinson of Lullington, L.

Sainsbury, L.

Irving of Dartford, L.

St. Davids, V.

Jacques, L.

Scanlon, L.

Jeger, B.

Scarman, L.

Jenkins of Putney, L.

Seear, B.

John-Mackie, L.

Sefton of Garston, L.

Kennet, L.

Serota, B.

Kilmarnock, L.

Shackleton, L.

Llewelyn-Davies of Hastoe, B.

Simon, V.

Lloyd of Kilgerran, L.

Stallard, L.

Lockwood, B.

Stamp, L.

Longford, E.

Stedman, B.

Lovell-Davis, L.

Stewart of Alvechurch, B.

McCarthy, L.

Stewart of Fulham, L.

McNair, L.

Stoddart of Swindon, L.

Mayhew, L.

Stone, L.

Meston, L.

Strabolgi, L.

Milford, L.

Strauss, L.

Milverton, L.

Taylor of Blackburn, L.

Mishcon, L.

Taylor of Mansfield, L.

Molloy, L.

Tordoff, L.

Monson, L.

Underhill, L.

Morris of Grasmere, L.

Wade, L.

Peart, L.

Wallace of Coslany, L.

Pitt of Hampstead, L.

Wells-Pestell, L.

Plant, L.

White, B.

Ponsonby of Shulbrede, L. [Teller.]

Winchilsea and Nottingham, E.

Prys-Davies, L.

Wootton of Abinger, B.

NOT-CONTENTS

Airey of Abingdon, B.

Hailsham of Saint Marylebone, L.

Alexander of Tunis, E.

Allen of Abbeydale, L.

Halsbury, E.

Alport, L.

Hanson, L.

Atholl, D.

Harmar-Nicholls, L.

Auckland, L.

Harvey of Prestbury, L.

Avon, E.

Hood, V.

Belhaven and Stenton, L.

Hornsby-Smith, B.

Bellwin, L.

Hylton-Foster, B.

Beloff, L.

Inglewood, L.

Belstead, L.

Ingrow, L.

Berkeley, B.

Ironside, L.

Boyd-Carpenter, L.

Kilmany, L.

Caithness, E.

Kinnaird, L.

Cameron of Lochbroom, L.

Lane-Fox, B.

Cathcart, L.

Long, V.

Clitheroe, L.

Lucas of Chilworth, L.

Cockfield, L.

Luke, L.

Coleraine, L.

McFadzean, L.

Cork and Orrery, E.

Macleod of Borve, B.

Craigavon, V.

Mancroft, L.

Craigmyle, L.

Margadale, L.

Cullen of Ashbourne, L.

Marley, L.

Dacre of Glanton, L.

Maude of Stratford-upon-Avon, L.

Daventry, V.

De Freyne, L.

Mersey, V.

De La Warr, E.

Molson, L.

Denham, L. [Teller.]

Mottistone, L.

Dilhorne, V.

Mowbray and Stourton, L.

Drumalbyn, L.

Northchurch, B.

Eccles, V.

Nugent of Guildford, L.

Ellenborough, L.

Orkney, E.

Elliot of Harwood, B.

Orr-Ewing, L.

Elton, L.

Pender, L.

Faithfull, B.

Plummer of St. Marylebone, L.

Fanshawe of Richmond, L.

Ferrier, L.

Porritt, L.

Fortescue, E.

Portland, D.

Fraser of Kilmorack, L.

Pritchard, L.

Gainford, L.

Rankeillour, L.

Gardner of Parkes, B.

Reay, L.

Glenarthur, L.

Reigate, L.

Gormanston, V.

Renton, L.

Gowrie, E.

Renwick, L.

Gray, L.

St. Aldwyn, E.

Gridley, L.

Saint Oswald, L.

430

Sandys, L.

Tranmire, L.

Savile, L.

Trefgarne, L.

Skelmersdale, L.

Trumpington, B.

Strathspey, L.

Vaux of Harrowden, L.

Suffield, L.

Vivian, L.

Swansea, L.

Westbury, L.

Swinfen, L.

Whitelaw, V.

Swinton, E. [Teller.]

Windlesham, L.

Terrington, L.

Wise, L.

Teviot, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.58 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 72:
Page 19, line 1, after ("shall") insert ("within 28 days").
The noble Lord said: I should be grateful if I could also deal with Amendments Nos. 73, 74 and 75.
Amendment No. 73: Page 19, line 1, leave out (", if so requested by a person showing himself") and insert ("provide to any person who appears to him").
Amendment No. 74: Page 19, line 7, leave out ("provide that person").
Amendment No. 75: Page 19, line 8, leave out subsection (8).
In brief, the purpose and the effect of these four amendments would be to strengthen the safeguards which are already given in Clause 19 to a person whose goods have been seized in the course of a search. As the Bill is now drawn, the provisions of Clause 19(7) are briefly as follows: that an officer carrying out a search shall if requested by a person who appears to be the occupier of premises upon which goods have been seized, provide a record of what has been seized within a reasonable time of a request for that record.
The effect of the amendments would be that such a record would be provided within 28 days of such a search, whether or not a request was formally made for it. Again, the view that we take is that in this case the interference with private liberty and with the rights of property and privacy is so considerable that in any event the onus should be upon the police to leave a clear record as to what has been taken, so that there be no dubiety and no argument in the future as to exactly what took place. Upon that basis, I beg to move.
Lord Trefgarne: As drafted, subsections (7) and (8) require the police to provide within a reasonable time of a request to do so, a record of property which they have seized. These amendments seek to require the police to provide such a record irrespective of whether or not it is wanted, and to impose a time limit of 28 days within which such a record must be supplied. I must confess that I do not see why the police should be required to provide a record which it may be nobody wants. Of course, in any event, for police purposes they will make a record of property seized, and paragraph 7(1) of the draft code of practice for the searching of premises will formally require them to do so. So a record will exist, irrespective of whether the person from whom the property was taken wants one. If he does want one, and that is surely right. If, for whatever reason, he does not want a record, I do not see what useful purpose is served by nevertheless requiring the police to provide such a record.
As to the time within which such a record must be provided, I am sure that, as a rule, 28 days would be

431
more than sufficient. However, occasionally it is necessary for the police to seize very large quantities of property—many thousands of documents comprising the records of, say, an allegedly fraudulent company, or a warehouseful of allegedly obscene material. In these exceptional cases it may simply be impracticable to provide a comprehensive record within 28 days.
The Bill must cover all cases, the exceptional just as much as the standard. For that reason I do not think it would be wise to attempt to impose a time limit in the way proposed by the noble Lord. Subsection (8) requires the record to be provided within a reasonable time, and I would suggest that this approach is to be preferred. What is a reasonable time will depend on the individual circumstances of the case, but if a person is aggrieved by delay in providing the record it will be open to him to apply to the courts for an order requiring its provision. For these reasons, I hope the noble Lord will not press his amendment.
Lord Somers: The noble Lord has said that the objection is that the record may not be provided, whether or not the occupier desires it. If the amendment is put into context, the subsection will read:
"An officer seizing anything under this section shall, within 28 days, if so requested by a person".
So the request still stands.
Lord Elystan-Morgan: I am very grateful to the noble Lord for his intervention. In addition, I think the point can be made that it would appear that the Royal Commission, in chapter 3.46 of its report, envisaged that a receipt would be given in any event. I must say that it seems to us that if careful documentation has to be kept of articles that are seized—clearly that is the situation; the police officer would not be doing his duty were he not to do that—nothing would be lost by leaving such a receipt upon the premises or somewhere where the occupier has access to it. To say the least, it is courtesy, and it avoids all manner of argument about these matters.
After all, these are powers which are inroads into the liberty of the individual, and it is only right that they should be balanced by the most careful documentation on the part of the police when they exercise those powers. In the circumstances, we hope that the noble Lord the Minister will not persist in his Molotovian negative attitude towards these amendments, and will give them generous further reconsideration.
Lord Trefgarne: I have explained two of the difficulties which I see. First of all, the record that the noble Lord is requiring, which he refers to as good housekeeping, will be kept. The code of practice requires that that should be so. Secondly, that can be made available, if so requested by the person concerned. But the further difficulty is that the noble Lord has set a limit of 28 days, and that imposes serious difficulties in the sort of case I have described; for example, where thousands and thousands of documents might have been seized and it might be very difficult indeed—impossible, perhaps—to prepare within the 28-day period that the noble Lord has stipulated in his amendment the sort of record he
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requires. Naturally, I am willing to arrange for these things to be considered further, but I would not want the noble Lord to be under any misapprehension that in some way we were likely to change our view on this matter.
Lord Mishcon: Before the noble Lord sits down, I should like to ask one quick question, if he will allow me to put it to him. Does he really believe that, however complicated a fraud case may be, the police would not prepare, within a period of 28 days, a schedule of the documents and books they had seized? We are talking only about scheduling them; we are not talking about examining them.
Lord Trefgarne: I must confess that I have heard of particular cases where literally thousands and thousands of documents have been seized. Certainly I envisage that the police would wish to list those documents. I must maintain my position that that might be very difficult within the 28-day period that the noble Lord has stipulated.
Lord Gifford: I have also heard of cases where solicitors have had the greatest difficulty in finding out, on behalf of their clients, what has been seized after a search warrant has been executed. I accept that there may be the need for a middle way here, that there may be an exception permitted in the case of very voluminous documents, but I hope that the Minister's consideration will take into account that in a normal case 28 days should be quite enough and ought to be inserted in the legislation.
Lord Boyd-Carpenter: It seems to me that a 28-day period could be wholly unreasonable in certain circumstances. What the amendment would require within that period is a recording of what has been seized, involving, as I read it, a description of every document that has been seized. Suppose there was an enormous fraud case, of which, alas, we have had one or two examples in recent years. I myself have seen packing case after packing case loaded with documents. Although it is perfectly true to say that the amendment would not require people to study them, each document would have to be looked at individually to be listed, and in my view at least that would impose a quite intolerable burden on the police. I can see no reason whatever for imposing this time limit, and I hope my noble friend will resist it.
Lord Mishcon: I wonder whether I may be allowed, again very briefly, to help the noble Lord, Lord Boyd-Carpenter, if he thinks I am being of assistance. All that is required is to count the number of receipts, for example, and to say, "Bundle containing 500 or 540 receipts". Then you say, "Bundle of correspondence passing between", and then you say what the dates are—between such-and-such a date and another date. It is done in every solicitor's office almost every single day, in the very largest of actions, by way of a list of documents in discovery. To leave the position where the police have got to decide whether or not it is reasonable to take three months, six months, nine months or a year, and to leave people without knowledge of what documents have been seized from their premises, is a gross travesty of justice.
Lord Boyd-Carpenter: With respect to the noble Lord, there is all the difference in the world between the handling of documents for discovery in a solicitor's office when one is proceeding in an orderly and lawful way to the hearing of a case, and dealing with documents which have just been seized in a case of suspected fraud. One may find that there are 540 documents in a package, the top of which are receipts; but it does not follow that the remaining 538 documents are receipts at all. They may be totally different. Indeed, anybody who anticipates that he is likely to be facing fraud proceedings and police action for fraud may very well leave his documents in a state of deliberate confusion, quite apart from the state of confusion in which some people leave their documents anyway. It is no conceivable answer to say that when one is preparing for trial in a solicitor's office and one has a bundle of receipts, one just counts those receipts. In this case one would have to look at each document and look at it closely to see whether it was a receipt or something else.
Lord Hutchinson of Lullington: This is a very serious matter. Over and over again in long fraud cases the police go into the office of the defendant or the defendant company and, as has been said, they seize every document that they can lay their hands on. As a result, immediately a fishing expedition starts. Those people who have lost the documents do not know what they are or which have been taken. The police sometimes keep those documents for a period of up to two years—they search through the documents and build up a case, or try to build up a case. The result is that one has no idea what is going on, where the documents are or of what they consist. This really is an opportunity to bring order into this matter and to be even-handed about it. Of course the police have to take documents, but there must be some control over what they have taken, and they must notify the defendant of what they have taken within some period which must be laid down; otherwise it will not happen.
Lord Trefgarne: That is all very well, but what I am being asked to agree to is a proposition which, from the point of view of the police, is wholly unreasonable. How can it be the case—and this is what the noble Lord, Lord Hutchinson, is asking me to accept—that the police, having seized a large quantity of documents which the noble Lord on his own admission has said might take as long as two years to examine—
Lord Hutchinson of Lullington: With great respect, I said that they might keep them for two years, which is quite a different matter.
Lord Trefgarne: How can it be the case that as regards a large quantity of documents which must clearly take many months to examine—I put it no higher than that—the police should be required to give an accurate list of what has been taken within 28 days, which is exactly the effect of one of the amendments which we are now considering? I ask your Lordships to accept that the best way is to adopt the provisions provided in the Bill which give the police a reasonable time in which to conduct their examination of the documents, to prepare a list and to provide it to the person from whom the documents or other items have
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been received within a reasonable period of time. To impose the type of limit that the noble Lord is suggesting would I believe tie the hands of the police in these types of cases, particularly the type that I have described.
Let me remind your Lordships of the other example which I gave. The police might have seized a warehouse full of allegedly obscene material. Clearly they would need to examine each and every item of that material to make sure that everything that they had seized was allegedly obscene, because there may in the same warehouse be quantities of material which were of no interest to the police in that context. I believe that the proposals contained in the Bill, without the amendments proposed by the noble Lord, are the best that we can devise in the circumstances and I hope that your Lordships will see fit to agree to them.
Lord Denning: I should like to make one short comment. In the big case, Rosminster, there were 13 van loads of documents taken from the premises. I think that 28 days would be much too short in which to make a record of all those documents. I am not sure that "reasonable time" is not best, as is already in the Bill.
Lord Elystan-Morgan: In my respectful submission, there are two issues here. The first is the question of whether or not the written record should be provided in any event. Upon that matter I very respectfully suggest that there seems to be unanimity in the Committee, or certainly a broad understanding, that that is as it should be.
Lord Denning: I would agree with that.
Lord Elystan-Morgan: I am most grateful to the noble and learned Lord. The second issue is whether or not it should be left to a reasonable period or 28 days. I wonder whether the Minister would consider the proposition that I am going to put forward as a not unreasonable compromise. I have not the slightest desire to embarrass the police or to frustrate them in their lawful pursuits in any way at all. Would the Minister be prepared to consider as regards that second issue that the general time limit shall be 28 days? That, I should have thought, would accommodate 98 per cent. of cases. The provision would read something like:
"within 28 days unless in the circumstances it shall be impracticable so to do".
That would concentrate the mind of the officer upon the general duty and also absolve him from the absolute necessity of providing the list within 28 days in exceptional circumstances.
I should like to pray in aid what has been said by my noble friend Lord Mishcon and the noble Lord, Lord Hutchinson; namely, that it is not a detailed record that is required, but such record as will enable the occupier to know broadly what has been taken from the premises. Like many lawyers, I have been frustrated in many cases where a year after the seizure has taken place solicitors and counsel have no idea of exactly what has been taken. It is an important matter and I very much hope that the Minister will be prepared to give it further consideration.
Lord Trefgarne: The noble Lord has now departed somewhat from what he was originally proposing and I acknowledge his flexibility in doing that. However, I am not now clear how what he now proposes differs from what we already have in the Bill. But maybe I could take the matter away and study what the noble Lord has said, and if it is thought fit perhaps return to the matter at another stage.
Lord Elystan-Morgan: I am very grateful, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 to 75 not moved.]
Clause 19 agreed to.
Clause 20 [Seized articles: access and copying].
5.17 p.m.
Lord Gifford Lord Gifford moved Amendment No. 76:
Page 19, line 35, leave out ("by") and insert ("to").
The noble Lord said: I can move this amendment very shortly, and I do so out of a sense of puzzlement. Clause 20(3)(b) provides that an officer must, at the request of an owner of a document, "photograph or copy it". Subsection (4) says that when it has been photographed or copied,
"the photograph or copy shall be supplied by the person who made the request".
It does not seem to me to make sense. My amendment inserts the word "to" instead of "by". I beg to move.
Lord Trefgarne: I grovel before your Lordships because of this inadvertent slip. I am happy to accept the amendment.
On Question, amendment agreed to.
On Question, Whether Clause 20, as amended, shall stand part of the Bill?
Lord Gifford: I should like to raise a short point on Clause 20. It is a valuable clause because it provides certain rights to those whose documents have been taken, which they did not have previously—that is to say, it provides access to them and enables them to be photo-copied or photographed. However, in subsection (6) the rights which have been given, as happens in other parts of the Bill, are in danger of being taken away or rendered virtually useless by a very general provision that there is no duty to grant the rights if there are:
"grounds for believing that to do so would prejudice the investigation".
I recognise that in some cases it would not be right to give someone access to a document. The most obvious case, for example, would be where a document was an official secret or where there were other documents of that kind. So I have not sought to amend the clause. But there must surely be some guidance given as to the circumstances in which this exceptional discretion should be exercised, because it may easily become absolutely standard for an officer to say to a solicitor, "I am not giving you access to these documents because it will prejudice the investigation".
I looked for help to the code of practice and found absolutely none at all. Paragraph 6.9 of the code of practice merely repeats verbatim the words of the Bill.
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I would ask the Government to consider putting at any rate in the code of practice some guidance or some rules as to how the police should exercise the discretion which they have been given.
Lord Trefgarne: I hear what the noble Lord says. I am not exactly certain what additional guidance could be prepared that would meet the noble Lord's anxieties, but perhaps he would allow me to consider that point too and see whether we can come up with something to include in the code of practice.
Lord Gifford: Perhaps the noble Lord will even consider the giving of some general reasons. There are certainly a number of cases where access might be refused without reasons and it would be very difficult to challenge. If that could be considered, that would be one way of meeting my concern.
Clause 20, as amended, agreed to.
Clause 21 [Retention of seized articles]:
Lord Gifford Lord Gifford moved Amendment No. 77:
Page 20, line 1, leave out from beginning to end of line 5 and insert—
("An article which has been seized under section 19 above may be retained for as long as is necessary in all the circumstances—").
The noble Lord said: Clause 21 deals with the length of time during which, and the reasons for which, articles which have been seized can be retained. Once again, the complaint that I make is that a provision of such elasticity has been inserted that it gives very few rights to the person who owns the documents which have been seized. Subsection (1) of Clause 21 says:
"an article which has been seized … may be retained so long as is necessary in all the circumstances".
I suggest that that provision is too wide.
In moving this amendment I should like to speak to Amendments Nos. 78 and 79.
Amendment No. 78: Page 20, line 6, leave out ("an article may be retained").
Amendment No. 79: Page 20, line 11, leave out ("an article may be retained").
These amendments would enable the clause to read as follows:
"An article which has been seized under section 19 above may be retained so long as is necessary in all the circumstances",
and then we continue: for the purposes which are now set out in subsection (2); that is to say, either for evidence or for forensic examination or if there is a need to establish its lawful owner.
I am not too sure what other purposes are envisaged in Clause 21. It seems to me that the purposes set out in subsection (2) are quite comprehensive enough, and it is in the spirit of trying to get some kind of certainty as to the reasons why the police can hang on to documents that I move this amendment. I beg to move.
Lord Trefgarne: Subsection (1) of this clause permits the retention of seized articles for as long as is necesary in all the circumstances. Subsection (2) then refers in particular to articles which might be needed for the purposes of evidence at a trial for an offence or for forensic or other investigation or, if they are reasonably believed to have been obtained as a result

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of an offence, in order to establish the lawful owner. By running these two subsections together, these amendments would prevent the police from retaining articles seized under Clause 19 for any other purpose.
We believe that it would be unsafe to circumscribe the generality of subsection (1) in this way. For example, an article might be retained for use as evidence at a trial, and still be needed for the purpose of appeal proceedings. If these amendments were accepted, however, the police would be obliged to return it as soon as the trial was over.
Another example of the need to retain subsection (1) in its present form is provided in the case not where a person is convicted and appeals, but where he is acquitted or indeed not prosecuted at all. Suppose, for example, that a person is acquitted on a charge of dealing in a controlled drug, which the police originally seized under Clause 19. None of the conditions in subsection (2) would apply, but it would clearly be contrary to public policy for the police to be obliged to return the drugs to him. Such a situation might also arise where a person who was to be charged with murder was found to have a small quantity of cannabis in his possession. It might be decided in the circumstances that no useful purpose would be served by a prosecution for this offence; but again clearly the police should be empowered in law to retain the cannabis pending its destruction.
These examples show that there is a wide range of possible circumstances which subsection (2) does not cover, and that it would accordingly be dangerous to treat subsection (2) as exhaustive rather than merely illustrative of subsection (1). I therefore cannot advise your Lordships to agree to these amendments.
Lord Gifford: As regards controlled drugs, I accept the position, although I am concerned that the rights of the police are left so vague. Certainly so far as drugs and appeals are concerned, I should have thought that it would be possible to include those purposes in the Bill. However, I shall read what the noble Lord has said, and I hope that he too will seek to bring some certainty into these purposes at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 and 79 not moved.]
Clause 21 agreed to.
Clause 22 agreed to.
Clause 23 [Arrest without warrant for arrestable offences]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 79A:
Page 21, line 2, leave out from ("1980)") to the end of line 4.
The noble Lord said: In moving this amendment, I should also like to speak to Amendments Nos. 79B and 80A, as they really deal with the same point.
Amendment No. 79B: Page 21, line 5. leave out subsection (2).
Amendment No. 80A: Page 21, line 23, leave out subection (3).
As I understand it, under Clause 23 of the Bill five categories of arrestable offence are created. The first category contains offences for which the sentence is
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fixed by law. The second category, which is the general category, is the category of offences which carry a penalty of five years or more of imprisonment. Thirdly, under Clause 23(2) there are listed five other groups of offences. Fourthly, subsection (3) refers to conspiracy to commit any of the offences in those five groups or any attempt to commit any of those offences or inciting, aiding, abetting, counselling or procuring any such offence.
The last group is the group referred to in subsection (8) of Clause 23 which refers to
"any power of arrest conferred apart from this section".
I apprehend that there is a pot pourri of various statutory powers which constitute the subject matter of that subsection.
As regards the five groups which are listed in subection (2) and as regards the offences of conspiracy, attempting to commit an offence, inciting, aiding, abetting, counselling or procuring in relation to them, which is contained in subsection (3), we on these Benches venture to suggest that it would not essentially weaken this provision for those to be excluded. On the face of it, it may well seem that that is a bold assertion to make, bearing in mind the subject matter of the various provisions.
Perhaps I may deal very quickly with them. Subsection (2)(a) refers to offences under Section 1(1) of the Customs and Excise Management Act 1979. I understand that those include many minor offences, and by and large they are offences which could be said to be minor in character. Subsection (2)(b) refers to offences under the Official Secrets Acts 1911 and 1920 which are not arrestable offences. Again, there is a wide range of offences, some of them fairly trivial.
Subsection (2)(c) refers to offences under Sections 14, 22 and 23 of the Sexual Offences Act 1956, Section 14 being particularly concerned with indecent assault on a woman, which I believe I am correct in saying carries a maximum penalty of two years' imprisonment. Many noble Lords have taken the view for a long time that that is an offence which should carry seven or 10 years' imprisonment, so that the cure to that provision is to up the penalty rather than to include it in subsection (2).
In relation to paragraph (d)—that is the offence of taking motor vehicles or other conveyances without authority, or going equipped for stealing—the same might be said, that the maximum penalties in respect of both those offences could carry five years' imprisonment and upwards. Paragraph (e) reads:
"Offences under section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office) or section 1 of the Prevention of Corruption Act 1906 (corrupt transactions with agents)"—
which I believe carry a maximum of two years' imprisonment.
In relation to those matters in the fifth category I venture to suggest that those are cases where there will be weeks or often months of patient research and investigation by police forces. In those circumstances arrest under warrant, as opposed to arrest without warrant, might be a perfectly practicable course.
Therefore on that basis, and with the purpose in mind of seeking to make the clause a much more simple instrument than it is at the moment, it is our

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contention that subsections (2) and (3) could be excised from the provision without weakening it in any way, provided that the upping of the penalties to which I have referred takes place at a fairly early future date. I beg to move.
Lord Trefgarne: Clause 23 defines what is meant by an "arrestable offence" and delineates the powers of arrest that attach to such offences. However, the fact that arrestable offences carry with them certain arrest powers is only one of the distinguishing features of this category of offences.
Your Lordships have already agreed that Clause 10 should stand part of the Bill and Clause 10(9) defines "arrestable offence". Certain of the more important investigative powers with which the Bill deals may only be exercised if a suspected offence is a serious arrestable offence. For example, the power to authorise road checks, to obtain a search warrant under Clause 8, to detain a suspect without charge for more than 24 hours or to take a body sample for forensic examination may only be exercised if the offence is a serious arrestable offence. Your Lordships will recall that to qualify as a serious arrestable offence the offence must clearly be, first of all, an arrestable offence. The question whether the offence is arrestable is, so to speak, the first hurdle which must be cleared before questions concerning the consequences of the offence are concerned. I hope that this introduction has helped to show the importance of the concept of "arrestable offence".
I turn to the amendments proposed by the noble Lord which seek to remove from this category those offences described in subsections (2) and (3). As is explained in the note on this clause, we have not followed the Royal Commission's recommendations regarding arrestable offences. The Royal Commission proposed that all offences which should be punished by imprisonment on first conviction should be arrestable. In our view this would be far too wide and would catch a large number of offences for which neither the arrest nor other powers belonging to this category are really needed. Instead we have proposed that offences which may be punished by more than five years' imprisonment should be arrestable—broadly speaking, this follows the present law—together with certain offences punishable by a smaller term of imprisonment and the corresponding inchoate offences. The latter offences are set out in subsection (2) and subsection (3) ensures that the inchoate versions of these offences are covered. It is this class of offences which the amendments proposed by the noble Lord seek to delete. As I have explained, the consequences of accepting these amendments would be that the investigative powers reserved to arrestable, and therefore serious arrestable, offences would not be available to help solve such crimes.
I have in front of me a detailed analysis of all the different categories of offence to which the noble Lord referred in his opening remarks, but I hope that I have said enough to make it clear why the offences described should be arrestable and that on reflection the noble Lord will not want to press his amendments.
Lord Elystan-Morgan: We certainly do not intend to press this matter to a Division. I am again
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disappointed by the rather negative attitude taken by the Minister. I am sure it is my own fault that my efforts have failed to touch that stream of pure charity that we know lies somewhere within the character of the noble Lord the Minister.
Lord Trefgarne: I wonder whether the noble Lord would allow me to make one intervention before he withdraws his amendment, as I think he intends to? I apologise, for I omitted to make one important observation when I was speaking just now.
Owing to an oversight in the drafting of the Bill as introduced, attempts and conspiracies to commit the offences listed in subsection (2) were not ipso facto arrestable in the same way, though they clearly should be. This oversight was corrected during Report in another place when subsection (3) was added. This must be right. The offences of attempting or conspiring to commit an indecent assault on a woman or to procure a girl under 21 for example, need the same enforcement powers as the substantive offence and this subsection shows that the inchoate offences associated with the offences designated as arrestable are themselves arrestable. I apologise for omitting that important point.
Lord Elystan-Morgan: I thought that my amendment had touched that stream of pure charity, but such was not to be the case on this occasion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79B not moved.]
The Deputy Chairman of Committees (Lord Airedale): I have to tell the Committee that there is an error in the printing and that Amendments Nos. 80 and 80A are printed in the wrong order, so I now have to call Amendment No. 80A, but I understand that that is not being moved.
[Amendment No. 80A not moved.]
5.38 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 80:
Page 21, line 23, at beginning insert ("Without prejudice to section 2 of the Criminal Attempts Act 1981,").
The noble Lord said: Most of the offences in Clause 23(2) are indictable. Accordingly, attempts to commit them are arrestable by virtue of Section 2(2) of the Criminal Attempts Act 1981. Because some customs and excise offences are purely summary, that provision will not bite on them. Hence the need for Clause 23(3)(b). But we do not wish to cast doubt on the Criminal Attempts Act, and so this saving is desirable. I beg to move.
On Question, amendment agreed to.
Lord Elywn-Jones Lord Elywn-Jones moved Amendment No. 80B:
Page 21, line 36, at end insert—
("and shall in the event of such an arrest ensure that the arrested person is given into the custody of a constable as soon as possible.").
The noble and learned Lord said: Clause 23(4) provides that:
"Any person may arrest without a warrant—

(a) anyone who is in the act of committing an arrestable offence;

(b) anyone whom he has reasonable grounds for suspecting to be committing such an offence.".

The amendment I move adds at the end:
"and shall in the event of such an arrest ensure that the arrested person is given into the custody of a constable as soon as possible.".
As your Lordships will have heard and seen, that subsection specifically preserves, rightly in our view, the power of an ordinary citizen to make an arrest without a warrant. In the case of an arrest made by a police officer, the Bill and the draft code of practice make the subsequent procedure quite clear. As yet, at any rate, the Bill does not appear to lay down the procedure to be adopted following a citizen's arrest.
It is our view that it would be sensible to fill that gap and, for the sake of completeness, to state the general obligation on the citizen who has carried out an arrest—not an event which is likely to happen in the daily lives of many of us. He should be required to hand over the suspect to a constable as soon as possible. These arrests, in the main, are carried out by store detectives and they form quite an important part of the total number of arrests, especially in such courts as the Marlborough Street Magistrates' Court, where many of those present have earned an honest guinea before now in the consideration of these cases. I move this as what I submit to be a sensible and necessary amendment.
Lord Trefgarne: I am grateful to the noble and learned Lord for raising this point. I agree with him that there does appear to be a case for placing the existing common law regarding what should happen following a citizen's arrest, on a statutory basis. Given all the protections that we have provided in the case of police powers, it does seem strange to rely upon the common law in the case of a citizen's power. But we must be careful. There may be very good reasons why a person arrested in this way should not be handed over to the police. It may be an instance of an officious store detective whose decision to arrest would be immediately countermanded by a more senior member of staff. It may be a case of simple mistake, either of identity or about the supposed criminal act, where all concerned realise within a very few minutes that they have arrested in error, and so on.
Clause 29(2) recognises that a constable who has arrested a person may subsequently realise that the grounds for arrest no longer exist. It would be a pity if we denied similar flexibility in the case of a citizen's arrest. I undertake to look at the point raised by the noble and learned Lord's amendment and to seek to meet it at a later stage, if we can do so without undermining the possible and proper use of sensible discretion. I do not promise that we shall be successful but I hope that, in the light of the undertaking that I have given, the noble and learned Lord will feel able to withdraw his amendment.
Lord Renton: May I ask my noble friend whether the statement that he has just made is a reflection of existing—indeed of well-established—practice; because if that is so it does not seem necessary that we should legislate to cover the point?
Lord Elwyn-Jones: My Lords, I respectfully agree with the Minister on this. I think that we ought not to
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rely on the common law to deal with the duty of handing over the arrested person to the police. This ought to be included in the Bill. I am bound to say that in the hypothetical case of a more senior person in the store countermanding the arrest by a junior person, I should have thought that the shop could regulate that and either let the man go or let the senior official in the case take the responsibility of handing over the subject to the police. But, as the noble Lord has undertaken to examine this and recognises the need to fill this gap, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan Moved Amendment 80C:
Page 22, line 7, leave out subsection (8).
The noble Lord said: This is a probing amendment. It is stimulated by a feeling of doubt as to exactly what might be encompassed by subsection (8) of Clause 23. As I said in relation to an earlier group of amendments, that is the fifth category of offences which are arrestable under Clause 23. It would appear from a perusal of the part of the Royal Commission's Report on the Investigation of Prosecution of Criminal Offences in England and Wales dealing with procedure that there is a very formidable list. The reason for raising the matter by way of amendment is this. One of the main objectives of this legislation, and a very laudable objective, was to seek to codify and to bring greater simplification into the law. We well appreciate that total simplicity cannot be accomplished and achieved in legislation of this sort. But it appears that the net result, if Clause 23 becomes law, will be to leave the situation in a far more untidy state than it is at present.
It is, therefore, in the hope that the Minister can, first, give the Committee some indication of the scope of the offences involved—I do not ask for the most minute detail and I am sure that the Committee would not thank me were Ito do so—and, secondly, consider whether it is necessary to have this provision at all. I beg to move.
Lord Denning: May I say a word on this? In common law, there was a power of arrest in regard to felonies but not in regard to misdemeanours, and that difference was almost impossible to disentangle. You could arrest for stealing more than 40 shillings, you could arrest for stealing a sheep or be hanged for it, but you could not be arrested for a misdemeanour such as obtaining money by false pretences, fraudulent conversion and the like. If you went further into the differences between felonies and misdemeanours, you would remember the Tolpuddle Martyrs. All they did was to administer an unlawful oath, and they were guilty of a felony and not only arrested but sent off to Botany Bay, transported for seven years. That is the difference between felonies and misdemeanours and no one could ever tell the difference except by looking up the books at the time to know whether there was a power of arrest or not. We have got almost to the same stage now.
It ought to be fairly easy to know for what offences you can arrest and for what you cannot. What we have got is a new phrase in our English law, "an arrestable offence". We had all that discussed some time ago. All we know about an arrestable offence is that it is

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something for which you may be sentenced to more than five years. Then we also have all the attempts and the conspiracies, one can be arrested for that. And then, not only that, but we have those which are in (2)(b). But the most comprehensive list of all is in subsection (8):
"This section shall not prejudice any power of arrest conferred apart from this section".
If you want to know what those are, the best place you can try—but I do not know if it is complete—is 15½ pages of this report of the Royal Commission, with about ten offences on every page. You can count them up—goodness knows how many there are. No one knows or can know really what is a power of arrest or not unless he searches through all of these things.
I do not say that there is anything wrong with subsection (8). All these powers of arrest have been granted by Parliament no doubt in its wisdom. I should not like any of them to be taken away, and these added new ones are all perfectly good.
But why cannot something be done—perhaps a handbook, perhaps a code, something—so as to have a list of the offences which are arrestable offences—it is an awful definition. Why cannot we have a book, a schedule, or whatever it may be, just setting out in one list what are arrestable offences? Then we can pick out the serious ones and put a tick against those. At all events, we should have something to go by. I only suggest there should be some clarification like this on the statute book.
Lord Foot: I am tempted to follow the noble and learned Lord who has just spoken. He was rightly complaining of the enormous complexity of the law upon arrest and detention. I would only seek to remind him that four years ago we discussed all these matters in connection with Scottish law. If I may say so, we made a very much better job of it than has been made by this Government in this Bill. If one cares to look at the Criminal Justice (Scotland) Act 1980, one will see that the whole matter of arrest and detention which is dealt with in this Bill in—I have not counted them—about 18 clauses, or two parts of the Bill, are dealt with in the Scottish Act in two clauses only.
There is one clause which deals with what the Scots call detention and we call arrest. That is Clause 3. There is one clause, Clause 3, which deals not only with arrest but with detention in a police station. Clause 3 deals with the right to have someone informed when arrested or detained, as we have in this Bill. The whole matter of arrest and when a policeman is entitled to make an arrest was dealt with in the Scottish Act in one sentence. It is in the first lines of Clause 2, which says:
"Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—(a) into the offence; and (b) as to whether criminal proceedings should be instigated against the person,"
detain him and so on, and take him to a police station. Those few lines set out the matter perfectly clearly. Every constable knows precisely when he is entitled to make an arrest and when he cannot make an arrest. All the verbiage which we have in this particular clause
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that we are discussing is dismissed and got rid of. The law is set out in the plainest and simplest terms.
I cannot help thinking that it was a very great pity that when the Government were framing this Bill they did not pay closer regard to what had been done for Scotland in 1980. I think that the opportunity will come during the course of these discussions to point out some other features of the Scottish Act which provide an interesting contrast with the terms of this Bill; in particular, of course, the fact that in Scotland you cannot hold anybody as a suspect in a police station, without charging him, for more than six hours. Under this Bill, as we know, you can in extreme cases hold a person in detention without charge for a period of 96 hours. But I should be out of order in discussing that at this stage.
It seems to me a great pity that the opportunity has not been taken on this occasion to codify the law—I agree it is most important that we should set out what the law of arrest and detention is: I think that is a most valuable contribution—and it is a great pity that we were not able to devise simpler language in which to express these very important matters.
Lord Renton: The assimilation with Scottish law to which the noble Lord, Lord Foot, has referred could be to a very great extent achieved by deleting the words in the last line on page 20, namely, "for a term of five years" and by deleting subsection (2) on page 21. It does not seem as though it would be very difficult.
I think that the noble and learned Lord, Lord Denning, and Lord Foot have drawn attention to something which really would be desirable, namely, a simplification of the English law with regard to the power of arrest. So that, as the noble and learned Lord has pointed out, those who have the duty to arrest—and even upon the citizen there may be a duty to arrest—will find it easier to know whether they have the power or not. I hope that the words of the noble and learned Lord and of Lord Foot will be heeded.
5.54 p.m.
Lord Trefgarne: I believe I can go a little way to reassuring the noble and learned Lord, Lord Denning, and the noble Lord, Lord Foot, and perhaps also my noble friend Lord Renton. The 15 pages full of powers of arrest in the red book which the noble and learned Lord showed to us are all in fact repealed by Clause 25 of this Bill, in favour of a general arrest power in Clause 24.
On the question of the similarity between our arrangements and those that apply in Scotland, raised by the noble Lord. Lord Foot, the law on arrest in Scotland is, I am told, still somewhat obscure and, indeed, the subject of great argument among Scottish lawyers. The position under Scots law seems to be that there is a common law power to arrest for almost any statutory offence. I am not entirely certain that we want anything quite so sweeping South of the Border. Having said that, the thin trickle of the milk of human kindness from this side of the Committee is about to become a torrent. I am happy to accept the amendment.
A noble Lord: A Daniel has come to judgment.
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24 [General grounds for arrest]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 81:
Page 22, line 10, after ("offence") insert ("which is not an arrestable offence").
The noble Lord said: On behalf of my noble friend Lord Elton, I beg to move this drafting amendment.
Lord Renton: Although this is a drafting amendment and we are told that that is so, it does once more point to the need for the kind of simplification in the law to which reference was made on the previous amendment. I think that we should bear that in mind when considering this purely drafting amendment.
Lord Trefgarne: I apologise if I skated rather lightly over this amendment, in the interests of speed, when I moved it. a moment ago. But the purpose of the amendment is to make it clear that Clause 24 is only concerned with non-arrestable offences. Clause 23 bestows adequate powers of arrest to deal with arrestable offences, and this clause need not apply to them. It is for that reason that I ask your Lordships to agree to it.
Lord Hooson: Should we not discuss Amendments Nos. 81 and 81A together?
Amendment No. 81A: Page 22, line 10, after ("offence") insert ("punishable by imprisonment").
If we accept Amendments No. 81 and 81A the provision would read:
"which is not an arrestable offence punishable by imprisonment".
Therefore, the words are really alternative words and it would seem to me that as a matter of procedure we should consider both amendments together.
Lord Trefgarne: I am happy to discuss these amendments together if that would be the wish of your Lordships.
Lord Elton: As I understand it, my noble friend moved Amendment No 81 and that has been put to your Lordships for debate. The noble Lord, Lord Hooson, is perfectly in order to speak to his own Amendment No. 81A. If my noble friend has moved Amendment No. 81, the Chair has not put Amendment No. 81. If the Chair now puts Amendment No. 81, the noble Lord will be perfectly in order in speaking to both Amendments Nos. 81 and 81A and we shall all be back on the track.
The Deputy Chairman of Committees (Baroness Wootton of Abinger): The Question is, That Amendment No. 81 be agreed to?
Lord Hutchinson of Lullington: I should like to speak to Amendment No. 81A. This, having regard to what has already been said about the powers of arrest, is another attempt to clarify the confusion which arises in this Bill over powers of arrest. The amendment
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seeks to insert the words "punishable by imprisonment", so that the clause will read:
"Where a constable has reasonable grounds for suspecting that any offence punishable by imprisonment has been committed".
The situation here is that, as we have seen already, the powers of arrest that have been dealt with in the previous clause are powers which are considerable. The Bill preserves and extends the powers, as we have seen, under the Criminal Law Act. It adds all the offences under Clause 23(2); it preserves the statutory powers of arrest under Schedule 2 and the common law powers of arrest; and it adds the powers of arrest under Clause 26 for the purpose of taking fingerprints, which we shall come to later. So your Lordships will see that already there are very substantial powers of arrest in this Bill. It is essential that your Lordships should appreciate that all the offences that really matter, so to speak—offences such as wounding, assaults, public order offences, thefts, receiving, taking and driving away cars, housebreaking implements, drugs, firearms, the Official Secrets Act, immigration, breaches of the peace and so on-are covered. Then suddenly, this clause provides a great extension of the powers of arrest because it is giving powers to arrest for any offence—any offence known to the law in certain ircumstances—whenever it appers to a constable that to serve a summons would be impracticable or inappropriate because of certain conditions which are set out in the clause.
Therefore we have here, in addition to all the powers of arrest that we have seen, this extra power of arrest in relation to any of 10,000 offences in the criminal law, which is a restricted power of arrest covering all offences—offences which are so trivial that they carry at the moment no penalty of imprisonment, such as, for instance, dropping litter in the street, or perhaps urinating in the street, or picking a wild flower which you are not allowed to pick, and trivial matters of that sort. I would suggest to your Lordships that this is a very important amendment because, I would submit, this power is far too extensive as it is.
What are the conditions? They are set out in Clause 24(3) (a), (b). (c), (d) and (e). I will not go through them all, but they are basically that the constable has reasonable grounds for doubting whether a name furnished by the person concerned is his real name and for doubting whether an address furnished by the person concerned is satisfactory for service. Then there are five different headings which could be called "preventive arrests". These are that the constable should have reasonable grounds for believing that the arrest is in the circumstances necessary to prevent various things happening: not that he sees an offence committed, but that he can predict that certain offences, he has reasonable cause to believe, may take place. Those are set out in (i) to (v), and they include causing injury to himself or to any other person, causing loss or damage to property, causing an offence against public decency and causing an unlawful obstruction of the highway. These are all matters we shall be looking at more closely in a moment.
One must say in passing that it is difficult to see what possible criteria there can be in an officer's mind for this extension of the powers of arrest. Take the perfectly simple case of having doubt as to whether the address given is in fact a genuine address or is a

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reasonable address for the purpose of serving a summons. Take the case of a police officer who stops somebody for a trivial offence in the street and says, "Can I have your name and address?", and receives the reply. "My name is Robinson and I live at an address in Durham." The man may be asked whether he has a telephone number, and he says, "No, I don't have a telephone; I am living with some friends up there." How on earth is a police officer going to decide whether he has reasonable grounds for doubting the address or the name, in those circumstances, in relation to trivial offences?
Your Lordships will appreciate, for instance, that this power has never been given to the police before. There are thousands and thousands of trivial offences: one can give examples quite easily. The justification for this power is that people can snap their fingers at a police officer in the street if they are stopped for some trivial offence, and they can give a false name. That has been the situation in relation to trivial offences for hundreds of years. Your Lordships will appreciate, for instance, to take one offence which, in London, goes on day in and day out—travelling on the railway without having paid the proper fare—that people are stopped on the way out of railway stations day in and day out. Nobody dreams of arresting a person in those circumstances. What happens is that in fact the inspector or the police officer in the street do take measures to verify the name and address, if they can, on the spot, by asking for some relevant paper—a driving licence, or whatever it is they may have in their pocket.
I would suggest to your Lordships that this power of general arrest for any trivial offence that you like to name is a power (and we are looking, are we not at all the powers in this Bill: on the one hand, whether they are necessary to the powers of the police, and, on the other hand, whether they are powers which are open to abuse) which, if given to the police all over the country, is open to abuse because it would be the easiest thing in the world, once you are armed with this power, to go up to anybody in the street about whom you may have some information, or who may be a nuisance, and say, "I doubt whether this is a proper name or address; you had better come along to the police station while we verify it". Then you can arrest the person, take him to the police station and keep him in custody for periods while an inquiry is made. That is, I would suggest to the Committee, really an objectionable procedure, and one which is very much open to abuse.
May I say, finally, that the Royal Commission was split on this matter. There were those who were in favour of some power of this kind, but they were very careful about it. They said that if such a power was to be granted it should be granted only on the basis that it should be used only on very rare occasions; that the officer must in fact see the offence committed; and that there must be a specific refusal to give the name or the address. So careful were they that they added that they would expect that, in those circumstances, the person stopped would write in the officer's notebook the name and address that he was giving. So a minority of the Royal Commission were strongly against this power. Those who were for it, were for it only with these very
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strict limitations. The second amendment is one which properly limits this power, whereas the first amendment leaves it far too extensive.
6.10 p.m.
Lord Hooson: I rise to support my noble friend Lord Hutchinson, but, looking at the procedure, surely Amendment No. 81A should precede Amendment No. 81, because the words "punishable by imprisonment" should precede the words "which is not an arrestable offence", since it is conceivable that the Committee may accept both amendments. It would therefore be logical for Amendment No. 81A to be taken first.
I want to speak very briefly on this point and remind your Lordships that in the famous case of Christie v. Leachinsky in 1947, Lord Simonds said:
"The liberty of the subject and the convenience of the police are not to be weighed in the scales against each other."
This must be right and I suspect that this power has been drafted so widely to deal with virtually anti-social behaviour or what is regarded as possible anti-social behaviour.
Let us consider for a moment what "arrest" means. Arrest is a deprivation of liberty and it is a very serious matter. Also, if this Bill is passed, someone can be detained without recourse to any senior officer for 24 hours and kept incommunicado, the finger prints of the person arrested can be taken and so on, and is that all to be allowed for any offence, however trivial? When one drops litter in the street, is that consequence to follow?
If one knows that an offence has been committed and one sees a dozen young men in the vicinity who are all rushing in the direction of a cricket match or a football match, and the officer regards them all as relevant persons, are they all to be subject to arrest for a relatively trivial matter? Surely the power under this clause is far too wide and we should limit it in some way. The most effective way of limiting it is surely to put in the words "punishable by imprisonment". It does not matter how short that sentence may be; there should, at least, be some level to the offence. This amendment moved by my noble friend would meet the bill.
Lord Donaldson of Kingsbridge: To clarify the situation, it seems to me that we have to vote against Amendment No. 81 before we can vote for Amendment No. 81A. Is that correct?
Baroness Phillips: I should like to follow what has just been said. We have been listening to two noble and learned Lords and I do not have that privilege, but I should like to suggest that it is unfortunate to keep referring to a trivial offence. It may be trivial to the person who is not concerned with the offence, but when I have been sitting as a magistrate I have found that offences which were described as trivial were certainly not trivial to the victim. If the noble Lord wants an example, I suggest we consider "causing loss of or damage to property". In the Central London courts, we used frequently to see that two or three young people, generally young men, were arrested, because they were hanging around Piccadilly Circus station, Oxford Street or Westminster Abbey in order

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to rob people—and, indeed, they did rob people. I always thought that this was one of the best methods of preventing an offence and it seems to be covered by this clause. It may or may not be trivial to be robbed of your purse, your wallet or your handbag, but anybody who has experienced it would certainly not regard it as trivial—
Lord Hooson: Will the noble Baroness give way? She appreciates, does she not, that if one attempted to rob somebody it is punishable by imprisonment for a very long term?
Baroness Phillips: These people have not been seen to be attempting to rob. That is the whole point. I thought the noble Lord was referring to paragraph (d).
Lord Hutchinson of Lullington: There is still a power of arrest, if there is an attempt to rob.
Lord Denning: May I speak in regard to Amendment No. 81A? I should like to take the illustration which my noble friend Lord Hutchinson took of travelling on a railway without having previously paid your fare and with intent to avoid payment of the fare. I have prosecuted in hundreds of those cases. Under that Act, there was a power of arrest if the man failed to give his name and address and a similar provision has been put in many statutes in regard to what might be called trivial offences. In other equally trivial cases there has not been such a power. I have met it in the course of my experience. In some cases, you have a power of arrest if someone does not give his name and address, and in other cases you have not. At all events, the law ought to be made uniform in regard to all these trivial offences.
I would not confine it to offences punishable by imprisonment. The case I took, of the man travelling on the railway without paying his fare, is not punishable by imprisonment. Obviously, the sensible course if someone has not paid his fare is for the inspector or the police constable to ask him, "Will you give me your name and address?" If he refuses to give them, it is his own fault. People give all sorts of names and addresses and there ought to be a remedy, rather than that a man, having committed an offence, should go scot-free with no one knowing where he is. I should like to suggest that the principle of this clause is right. It would limit the power much too much to confine it to offences punishable by imprisonment, so I suggest that this amendment be not accepted.
Lord Trefgarne: I am grateful to the noble and learned Lord for his support for the line with which I hope to persuade your Lordships. The amendment moved by the noble Lord, Lord Hutchinson, and supported by the noble Lord, Lord Hooson, would limit the power of arrest under this clause, as the noble Lord said, to offences which are punishable by imprisonment. It is perhaps ironic that it is precisely these offences which the Royal Commission recommended should be arrestable offences, and so subject to the greater arrest powers contained in Clause 23: that is in paragraph 383 of the report. I appreciate the concern expressed by the noble Lord, Lord Hooson, and I think the noble Lord, Lord
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Hutchinson, too, that the powers of this clause should not be used in the case of trivial offences. However, I believe that the noble Lords are wrong, both on the question of principle and in the way they have attempted to define which offences are serious.
Two principles underlie this clause: first, that the police should be equipped with the powers necessary to enforce the law; and, secondly, that the citizen should not be deprived of his liberty, except when this is absolutely necessary. For the type of relatively minor offences which are the noble Lord's main concern, the usual way for the police to proceed should be, as at present, by way of a summons. Indeed, the Bill ensures that this is the expectation more often than at present. But in some circumstances this will be impracticable and inappropriate. If the law is to be enforced and society protected—and this, I think, was in the mind of the noble Baroness, Lady Phillips—the police must have the power of arrest in these circumstances. There is no sense in Parliament agreeing that something should be a criminal offence if there is no way that the police can enforce this decision. To this end, we have adopted the necessity principle proposed by the Royal Commission. An arrest may only take place if one or more of the conditions set out in subsection (3) apply.
I should emphasise that subsection (1) makes it quite clear that arrest must only be used if service of a summons is not feasible. Arrest is a corrective power which we hope will not be needed, but the power should be available if circumstances justify its exercise. Nor should we forget that the citizen will be further protected by the safeguards contained in Clauses 27 and 29 which we shall shortly be considering. These will ensure that a person is aware under which of the conditions set out in subsection (3) he has been arrested. If the fact of arrest leads him to decide to provide the information required under paragraphs (a) to (c) of the subsection, Clause 29(2) will ensure that he is released promptly. The clause will provide the police with the necessary power to see that the law is obeyed, but it also, for the first time in our law, lays down the principle that the police may arrest a person only where this is necessay.
Finally, I should point out that a wide range of offences which are not punishable by imprisonment are nevertheless far from trivial. For example, operating an unlicensed sex shop is not punishable by imprisonment. The power of arrest for such an offence on failure to give a name and address, which is bestowed by paragraph 24 of Schedule 3 to the Local Government (Miscellaneous provisions) Act 1982, will be repealed by Clause 25. We believe that it should be replaced by Clause 24. Similarly, your Lordships will recall that the offences created by the Video Recordings Bill are not imprisonable. The power of arrest for these offences, which Clause 18 of that Bill bestows if a name and address are not given, will be repealed by Clause 25 of this Bill and we intend that it should be replaced by Clause 24.
Opinions will differ, but in my opinion these are definitely not trivial offences. The police should have the power to arrest for these offences, if service of a summons is inappropriate or not practicable. I therefore urge your Lordships to reject this amendment. I hope that your Lordships will at the

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same time accept the earlier amendment which I put before the Committee.
Lord Hutchinson of Lullington: Does the noble Lord—
The Deputy Chairman of Committees: The Question is that Amendment No. 81 be agreed to. We have to take Amendment No. 81 first.
Lord Trefgarne: If the noble Lord, Lord Hutchinson of Lullington, wishes to put further points to your Lordships, I believe that it would be appropriate for him to do so before the Question is put.
Lord Hutchinson of Lullington: The noble Lord the Minister said that the Government had adopted the Royal Commission's necessity principle. May I ask him whether he agrees that the Royal Commission supported this power only with the very strict reservations which I have already enumerated: that the power should be given to a police officer only if he saw the offence being committed and if there was a refusal to give the name and address.
Lord Trefgarne: I cannot claim that we have adopted every word and syllable of the Royal Commission's proposals, but we have gone a little way along the line which they suggested, in the manner I mentioned earlier.
The Deputy Chairman of Committees: The Question is that Amendment No. 81 be agreed to, I have to point out that if Amendment No. 81 is agreed to, it will mean a slight modification of the wording of Amendment No. 81A. Amendment No. 81 reads:
"Page 22, line 10, after ("offence") insert ("which is not an arrestable offence")".
6.25 p.m.
On Question. Whether the said Amendment (No. 81) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents. 76.

DIVISION NO. 2

CONTENTS

Airey of Abingdon, B.

Cox, B.

Auckland, L.

Craigmyle, L.

Avon, E.

Cullen of Ashbourne, L.

Belhaven and Stenton, L.

Dacre of Glanton, L.

Beloff, L.

Daventry, V.

Belstead, L.

De La Warr, E.

Birdwood, L.

Denham, L. [Teller.]

Boardman, L.

Denning, L.

Boyd-Carpenter, L.

Drumalbyn, L.

Broadbridge, L.

Eccles, V.

Brougham and Vaux, L.

Elliot of Harwood, B.

Bruce-Gardyne, L.

Elton, L.

Buckmaster, V.

Faithfull, B.

Caithness, E.

Fanshawe of Richmond, L

Cameron of Lochbroom, L.

Ferrier, L.

Campbell of Alloway, L.

Fraser of Kilmorack, L.

Cathcart, E.

Gainford, L.

Cockfield, L.

Gardner of Parkes, B.

Coleraine, L.

Glenarthur, L.

Colville of Culross, V.

Gormanston, V.

Colwyn, L.

Gray, L.

Cork and Orrery, E.

Gridley, L.

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Grimston of Westbury, L.

Mowbray and Stourton, L.

Hailsham of Saint Marylebone, L.

Napier and Ettrick, L.

Newall, L.

Halsbury, E.

Northchurch, B.

Hanson, L.

Nugent of Guildford, L.

Harmar-Nicholls, L.

Orkney, E.

Hood, V.

Pender, L.

Hornsby-Smith, B.

Portland, D.

Hylton-Foster, B.

Rankeillour, L.

Inglewood, L.

Reay, L.

Kilmany, L.

Reigate, L.

Kinnaird, L.

Renton, L.

Kinnoull, E.

Renwick, L.

Lane-Fox, B.

St. Davids, V.

Lindsey and Abingdon, E.

Saltoun, Ly.

Long, V.

Savile, L.

Lucas of Chilworth, L.

Skelmersdale, L.

McAlpine of West Green, L.

Somers, L.

McFadzean, L.

Stamp, L.

Macleod of Borve, B.

Strathspey, L.

Mancroft, L.

Swinfen, L.

Margadale, L.

Swinton, E. [Teller.]

Marley, L.

Tranmire, L.

Marshall of Leeds, L.

Trefgarne, L.

Maude of Stratford-upon-Avon, L.

Trumpington, B.

Vaux of Harrowden, L.

Mersey, V.

Vickers, B.

Milverton, L.

Vivian, L.

Molson, L.

Westbury, L.

Montague of Beaulieu, L.

Whitelaw, V.

Mottistone, L.

NOT-CONTENTS

Airedale, L.

Jeger, B.

Amherst, E.

Jenkins of Putney, L.

Ardwick, L.

John-Mackie, L.

Attlee, E.

Kilbracken, L.

Avebury, L.

Kilmarnock, L.

Aylestone, L.

Lockwood, B.

Balogh, L.

Longford, E.

Beaumont of Whitley, L.

Lovell-Davis, L.

Bernstein, L.

McGregor of Durris, L.

Beswick, L.

Mayhew, L.

Birk, B.

Meston, L.

Bottomley, L.

Milford, L.

Briginshaw, L.

Mishcon, L.

Brockway, L.

Molloy, L.

Caradon, L.

Monson, L.

Carmichael of Kelvingrove, L.

Pitt of Hampstead, L.

Collison, L.

Plant, L.

Crowther-Hunt, L.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Diamond, L.

Prys-Davies, L.

Donaldson of Kingsbridge, L.

Roberthall, L.

Elwyn-Jones, L.

Scanlon, L.

Elystan-Morgan, L.

Seear, B.

Ewart-Biggs, B.

Sefton of Garston, L.

Foot, L.

Stallard, L.

Gallacher, L.

Stedman, B.

Gifford, L.

Stewart of Alvechurch, B.

Graham of Edmonton, L. [Teller.]

Stewart of Fulham, L.

Stoddart of Swindon, L.

Grey, E.

Stone, L.

Grimond, L.

Tordoff, L.

Hampton, L.

Underhill, L.

Hanworth, V.

Wade, L.

Hatch of Lusby, L.

Wells-Pestell, L.

Hooson, L.

Wigoder, L.

Houghton of Sowerby, L.

Winchilsea and Nottingham, E.

Howie of Troon, L.

Hughes, L.

Winstanley, L.

Hutchinson of Lullington, L.

Winterbottom, L.

Jacques, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.33 p.m.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington had given notice of his intention to move Amendment No. 81A:
[Printed earlier.]
The noble Lord said: We took the view that this amendment and the previous amendment ought to have been on the Marshalled List in a different order—the other way around. But having regard to the vote that has just been taken, I propose not to move this amendment but to return at Report stage with a reasoned amendment which will take account of the new words which have been inserted.
[Amendment No. 81A not moved.]
Lord Gifford Lord Gifford moved Amendment No. 81 B:
Page 22, line 20, after ("name") insert ("or address").
The noble Lord said: In moving this amendment, I will speak also to Amendments Nos. 82C, 82F, and 83D:
Amendment No. 82C: Page 22, leave out lines 26 to 27.
Amendment No. 82F: Page 22, line 30, leave out ("a satisfactory address for service") and insert ("his real address").
Amendment No. 83D: Page 23, line I, leave out subsection (4).
These amendments appear in different parts of the Marshalled List but they form a group of amendments which are designed to cover something of the same point as that raised by the noble Lord, Lord Hutchinson of Lullington, but to present to the Committee a different solution for the grievance that he raised, and one which I hope will be more broadly acceptable to the Committee.
The amendments focus on the Bill's provisions concerning people who have committed a summary offence and who do not have, in the Bill's terms, "a satisfactory address". So far as the Bill is concerned, as the noble Lord, Lord Hutchinson, pointed out, it provides that where someone not only refuses to give their address, or not only gives an address which the constable believes is a false one, but gives an address which the constable believes is not satisfactory, then the person may be arrested. A satisfactory address is defined at the top of page 3 of the Bill as one that it appears to the constable
"the relevant person will be at for a sufficiently long period for it to be possible to serve him with a summons".
The service of a summons can take months, and we are talking therefore about an address which has a permanence of something like six months or more.
It must immediately be obvious that there will be all kinds of people who will appear to constables not to have satisfactory addresses for service. To introduce one very broad category, there is the example of tourists. If someone's address is given as an hotel or as a camping site and they are foreign, it will be plain that they do not have an address at which they will be resident for a sufficiently long period of time to be served with a summons. As I understand it, the expectation under the Bill is that tourists who commit summary offences—which may be parking offences, litter offences, offences against by-laws in parks, and all kinds of other offences—will be arrested and kept overnight in custody, and then brought before a magistrates' court the next morning. All that is not possible at present unless the person concerned refuses to give his name and address.
Another large category is that of young people living on their own who may not have very permanent lodgings. They may have come to London or another big city and be unable to specify a person to accept
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service of a summons on their behalf. They may not want to give the address of their parents; or they may have separated from their parents; or they may have no parents. They, too, are likely to be kept in custody overnight for any offence, however small it may be—such as parking on a double yellow line.
My amendments seek to remedy and limit that state of affairs by deleting all the references to
"a satisfactory address for service"
and by substituting in Clause 24(3)(c) a provision that the constable can arrest if he has
"reasonable grounds for doubting whether an address furnished by the relevant person is his real address".
If the constable believes that it is a false address, he can arrest. But if he is satisfied that it is a real address, even if only temporary, then he cannot arrest. That is in line with existing law.
I have read through the 15 pages of the report to which the noble and learned Lord, Lord Denning, referred a short while ago, where there are powers of arrest for a number of summary offences. They are set out in Table 9.3. In nearly every case the powers are given if the person fails to give his name and address, or refuses to give his name and address, or refuses to give them to the satisfaction of the constable. None of the existing powers of arrest include this new power to arrest if the address is temporary—if it is a genuine address but a temporary one. That is a new extension to the present law and I hope that the Committee will think long and hard before accepting that it should be introduced into the law.
They will. I hope, as will your Lordships when you think about this consider what was said about this point by the Royal Commission in its report at paragraph 3.86. It is of importance to know exactly how the Commission put this:
"Where there is no power of arrest without warrant for an offence, generally the police are able to proceed by way of summons, or by application for a warrant to arrest (the provisions for which we recommend should be retained). But where a person refuses to give his name and address and the police do not know it, that person can in effect prevent the law from being enforced because it is not possible to serve a summons upon him. Two of us take the view that this problem is not such as to justify making available the power of arrest, that is the power to deprive a person of his liberty, for offences which cannot carry a prison sentence. The majority accepts that this may be a very rare occurrence, but considers that the police should have some means available to them of dealing with the situation when it arises, since otherwise the law can be openly flouted".
Accordingly, it recommends that if a police officer actually sees an offence being committed for which he has no power of arrest without warrant, and if he does not know the offender and the offender positively refuses to give his name and address or an address where a summons may be served upon him, the officer should have the power to arrest for the offence concerned.
The recommendations of the Royal Commission were limited to a general power of arrest under certain conditions where there had been a refusal to give the name and address. The effect of my amendments is to take the matter a little wider than the Royal Commission in favour of the police. Their effect would be to allow the police to arrest if they did not know and could not ascertain either the name or the address of the person. That is the effect of Amendment No. 81 B.

455
And it would allow the police to arrest if the officer had reasonable grounds for doubting whether an address furnished by the relevant person was his real address; in other words, if the police officer thought it might be a false address. That would duplicate the existing provisions where there are powers of arrest for summary offences.
It would not introduce this very dramatic and very considerable extension of the law where a great number of people cannot show to a police officer that they have not only a real address but a real permanent address. It puts every tourist and every young person in transit or travelling in danger of being arrested for very minor offences which could and should be dealt with by way of summons. Therefore, I ask the Committee to recognise that they should accept these amendments and not allow this big extension in the way which the Bill provides. I beg to move.
Lord Elton: In view of our exchanges on the last piece of business, I just wonder whether the noble Lord, Lord Hutchinson of Lullington, is interested in speaking to his two amendments to Clause 24 which, I think, are Amendments 82A and 82D which strike in the same ground.
Lord Hutchinson of Lullington: I do not intend to move them.
Lord Elton: Then I hope what I say is not unduly extended by the undue anticipation that the noble Lord was going to move his amendments.
Paragraphs (a) to (c) of subsection (3) set out the first three criteria which permit an arrest to take place under this clause. Fairly briefly, they are that the person concerned fails to provide his name and address where a summons may be served or if it is reasonably believed that the name and address given are false. If I can first deal with the case where it is reasonably believed that information provided is inadequate for the service of a summons, whether because the name is false or because the address will not do for the service of the summons, concerning Amendments 82A and 82D. which in fact I am now invited to pass by—and I shall endeavour to do so, but it does make it difficult not to avoid leaving out things your Lordships will want to hear but I will try to save time and leap straight to the point—there is nothing new in principle about the power provided. There are large numbers of offences which at present carry a power of arrest if a person reasonably suspected of committing that offence fails to satisfy a police officer as to his name and address. Noble Lords will see the full list in Table 9.3 of Appendix 9 to the Royal Commission's Law and Procedure volume.
All that the clause does is to apply to all offences a necessary and, in our view, sensible reserve power which is currently confined to a haphazard collection of offences. Furthermore, the test is an objective one. The clause provides that the police officer must have reasonable grounds to doubt the correctness of a name and address or the length of time for which a person will be staying at an address he had given before the arrest power became available. Groundless doubts will not be sufficient; so a person will not be required to prove his name and address to a police officer; the onus
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will be on the police officer to show grounds for disbelief. There is, therefore, no question of people having to carry passports or other identifying documents.
Existing powers of arrest or a failure to give a name and address cause no particular problems in practice. Exactly the same point arises in relation to addresses. An offender should not be able to escape arrest by the simple device of nominating Fairyland or Queer Street as an address for the service of summons—unless, of course, he actually lives there.
This takes us on to the concept of "a satisfactory address for service" which is attacked in the amendments proposed by the noble Lord, Lord Gifford. But all his amendments appear to me to do is to widen considerably the power of arrest under the clause. As presently drafted, a person does not have to provide his own address, only one where service of a summons can be accepted on his behalf. This is the concept of "a satisfactory address" which the noble Lord's amendment would delete. The clause simply reflects the rules for serving a summons contained in the Magistrates' Rules. In place of this the noble Lord proposes that the suspect must give his own address to avoid arrest. By limiting the suspect's discretion, this must increase the possibility of an arrest taking place.
That is the abstract concern, but the concrete concern is this. The provision that is proposed would discriminate against homeless people, because a homeless offender under the noble Lord's amendment would have to be arrested. At present, of course, he could give the address of (say) his social worker, and this is a fairly normal procedure. I could continue at some length, but I think that that is at the nub of the noble Lord's concern and I will see how he responds to that.
Lord Gifford: I am very grateful to the noble Lord the Minister for giving me the chance to ask one or two questions. I accept that if a person has no address at all, provision in the Bill may have to be made, but the noble Lord has not, I think, addressed himself to the other consequences of the Bill which the amendment does in fact seek to rectify. If someone has a real address at, let us say, a local inn where he is staying as a tourist, under the Bill he could be arrested because it was not a satisfactory address for service. First of all, am I right in saying that that is so, and that it is a new power given which does not exist at the moment? Under my amendment he could not be arrested because he gave his genuine address, which is good enough under the existing law. Is there not a very radical departure under the Bill, which the Royal Commission did not recommend? Will the noble Lord the Minister explain to the Committee whether or not I am right in saying that the Bill does extend the law very considerably?
Lord Elton: I hope I can satisfy the noble Lord. If we can take the case of a suspected offender, he does not have to give a conventional, permanent address. The address can be that of a hostel where the person is staying, for example, or even a hotel if the person is staying there for any substantial period. The constable will ask him how long he is going to be there. The Thames Valley police have even suggested that

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Greenham Camp is a suitable address, although that seems to me to take what the noble Lord, Lord Gifford, might regard as a more optimistic view of the future than I do. The extension of the law promoted by the noble Lord is designed specifically to deal with the inability of the police to prosecute travellers such as gipsies for offences—particularly serious motoring offences—which they commit. I do not think it is designed to do that but it would have that effect.
The tourist can of course give his own home address. He does not have to give the address where he happens to be at the time if he does not want to. If he is only there for a couple of nights he can say to the constable, "How long ahead do you want to know where I will be?" The tourist can then tell the policeman. If in fact the man is moving house or going to be away for six weeks during the period when the summons may be delivered at another address, it seems reasonable that he should be able to give the address so that the summons can be served at the address where he will be and not at what one might call his registered postal address.
Lord Airedale: The Minister continues to say that the person must be at the address for a sufficient period, or words to that effect. But what about the well-to-do tourist who is accused of some summary offence and is spending that night in a hotel in Park Lane and leaving Heathrow at four o'clock the next day for Rome? The noble Lord, Lord Gifford, is right. That person is liable to spend the night not in his hotel in Park Lane but in the police station. What is the sense of that?
Lord Elton: Your Lordships are making very heavy weather of what I regard as a fairly simple point. The person can perfectly well give his home address if he wants to do so. If there are forwarding arrangements, as long as the constable is satisfied that the person will get the summons, that is all this is for. It will enable the constable not to arrest somebody for giving an unsatisfactory address simply because it happens not to be his home address.
Lord Airedale: If his home is in the United States, is that all right?
Lord Elton: I understand not; but I imagine, equally, that one would have to exercise discretion as to how far one pursues a trivial offence in order to bring to book a foreign visitor who is about to return to a foreign country.
Lord Gifford: The point is that there is a danger that police officers will pursue tourists, particularly the not so well-to-do tourists, over offences of this kind —parking offences, driving offences, dropping litter, or whatever it may be. Tourists will find themselves spending nights in the cells. We deplore this happening in other countries where tourists are arrested for trivial offences concerning driving, and so on. It will happen here under this Bill. I hope the noble Lord will appreciate our concern and agree to look again at the clause. I am not saying that my amendment has it absolutely right—the noble Lord made a point about
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homeless persons—but the position of tourists and transients is completely changed by this Bill in the way the noble Lord, Lord Airedale, and I have said.
Lord Boyd-Carpenter: Is the argument of the noble Lord, Lord Gifford, therefore, that the tourist who commits, say, a serious offence should get away scot-free?
Lord Gifford: Not serious, because all serious offences would either be arrestable under Clause 23 or they would come under the various important provisions in Clause 24(3)(d). The noble Lord will see that for all kinds of offences which involve injury, damage to property, offences against public decency and obstructions of the highway a person can be arrested irrespective of the permanence of the address. There are a number of offences which the noble Lord may have in mind which will fall within those provisions. The present law is that for offences which are not relatively serious—for example, parking offences, dropping litter, picking wild flowers or breaching by-laws—a tourist can be booked and summoned only if it is possible, and it may be that the tourist will go free. The Minister has not told us of any great scandals taking place where tourists cannot be served with summonses. It may be that there are. This is a point of principle to which we are seeking to address ourselves in this amendment.
Lord Boyd-Carpenter: Disregarding for a moment the degree of seriousness of the offence—and I agree that the more serious offences are covered—there are some offences which some of us might think were reprehensible. The noble Lord should face up to this. If he presses his amendment he is proposing, in the case of the other sort of offences, to give complete immunity to a tourist simply because he is a tourist. I am very much against that.
Lord Elton: My noble friend has put the point, very succinctly, which I was going to make myself at greater length.
Lord Boyd-Carpenter: I am sorry.
Lord Elton: No, I am much obliged to my noble friend for speeding up the business of the Committee and bringing us to a consensus. The noble Lord, Lord Gifford, referred to the offence of obstructing the highway. I presume he is aware that it is now an arrestable offence and that a foreigner can now be arrested for it. The other point I should have made to the noble Lord, and which he may be aware of, is that one cannot serve a summons abroad anywhere. Therefore, my noble friend is right. Either the foreigner who gives a foreign address has to remain in this country to receive the summons, and thus be brought to justice, or he must be let go. The noble Lord's amendment would mean that he would always have to be let go.
Lord Gifford: That is the present position. With great respect, the noble Lord is misleading the Committee when talking about obstructing the highway. Obstruction of the highway is a ground for arrest under paragraph (d) of the general arrest

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conditions. I am not seeking to interfere with that. All kinds of other serious offences are arrestable, whether or not it is a foreigner or a tourist who commits them. The point I am asking the noble Lord to look at again is whether it is necessary to put tourists under the possibility, or probability, of being arrested for offences which all noble Lords would regard as trivial because there is not a satisfactory address for service. That is a matter which is totally new.
Lord Mishcon: Perhaps I can briefly assist the Committee in this way. The noble Lord the Minister will I think understand that there is concern about this matter and the treatment of tourists and less well-off people. In the circumstances, will he consider between now and Report not just the amendments but the possibility—I do not say that this will commend itself to everyone—of an insertion in the code of practice that the power of arrest in regard to these matters will be exercised only with due discretion and would not cover trivial offences of the nature that my noble friend has very properly brought before the Committee? If the Minister will give that assurance I have an idea that my noble friend Lord Gifford, in view of what he has said, will take a certain course.
Lord Elton: The noble Lord is always anxious to help, and I am grateful to him for it; but, with the greatest respect. I think that the boot is on the other foot. The noble Lord, Lord Gifford, has put forward an amendment which would have the effect of protecting the wealthy foreigner or tourist and imperilling the homeless and the vagrants. This seems to be so out of tune with his own position in politics and with what the Bill seeks to achieve that it is for him to reconsider rather than the Government.
Lord Gifford: I am upset that the noble Lord does not seek at all to meet the point made by myself and by the noble Lord, Lord Airedale. We shall have to return to it at a later stage, when I hope the noble Lord the Minister will look at it. I accept the suggestion that there may be an improved way of meeting the point that I seek to make, and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I think it would be convenient if I announced to the Committee that before resuming the House we shall not return to the Committee stage of this Bill until a quarter to eight. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Mental Health (Scotland) Bill [H.L.]
6.59 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Cameron of Lochbroom.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[References are to Bill 126 as first printed for the Commons.]
1 Clause 79, page 63, line 18, leave out "section 26 of the County Courts Act 1959" and insert "section 12 of the County Courts Act 1984".
Lord Cameron of Lochbroom: My Lords. I beg to move that this House doth agree with the Commons in their amendment. It might be convenient, if your Lordships agree, if I deal with both the amendments together and explain them.
Commons Amendment No. 2: Schedule 3, page 105, line 13, at end insert—
"Tenants' Rights, Etc. (Scotland) Act 1980 (c. 52)
46A. In section 1(10)(o) for the words "section 89 of the Mental Health (Scotland) Act 1960" there shall be substituted the words "section 90 of the Mental Health (Scotland) Act 1984."."
They both arise out of legislation which was passing through Parliament at the same time as this Bill. As your Lordships will see, Amendment No. 1 replaces a reference to a section of the County Courts Act 1959 with a reference to Section 12 of the County Courts Act 1984, which was a consolidation Bill which has now passed through both Houses.
Amendment No. 2 is in similar vein. It does the same for the Tenants' Rights, Etc. (Scotland) Amendment Act 1984, which was going through the House at the same time as the present Bill.
I should say that these amendments do not alter the law in any way. I should also inform your Lordships that they have been seen and, I understand, approved by the noble and learned Lord, Lord Brightman, who is chairman of the Joint Committee on Consolidation Bills. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Cameron of Lochbroom.)
Lord Carmichael of Kelvingrove: My Lords, I believe that the House is grateful to the noble and learned Lord the Lord Advocate for explaining the necessity for these amendments. It is also perhaps grateful for the fact that the timing was such that it was possible to include the amendments in the consolidation measure, which will make the legislation more understandable, at least in these two minor respects, and there will not need to be quite as much digging hack in the records. I am quite happy to support the Lord Advocate on both amendments.
On Question, Motion agreed to.

COMMONS AMENDMENT
2 [Printed above.]
Lord Cameron of Lochbroom: My Lords. I beg to move that this House doth agree with the Commons in their Amendment No. 2.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Cameron of Lochbroom.)
On Question, Motion agreed to.

Rent (Scotland) Bill [H.L.]
Lord Cameron of Lochbroom: My Lords, it is my understanding that no amendments have been set down to this Bill, and, further, that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(Lord Cameron of Lochbroom.)
On Question, Motion agreed to.

Foster Children (Scotland) Bill [H.L.]
Report received.

Pool Competitions Act 1971 (Continuance) Order 1984
7.3 p.m.
The Earl of Caithness The Earl of Caithness rose to move, That the draft order laid before the House on 24th May be approved.
The noble Earl said: My Lords, on behalf of my noble friend Lady Trumpington I shall speak to this order, and I shall he brief. Most of your Lordships, if not all, will he familiar with this hardy annual which will not become a perennial. The Joint Committee on Statutory Instruments has considered the draft order and has made no comment. The purpose of the draft order is to extend the Pool Competitions Act 1971—
Baroness Trumpington: My Lords, I beg your Lordships' pardon. The purpose of the draft order is to extend the Pool Competitions Act 1971 for a further year. This Act came into force on 27th July 1971 and had effect for five years, but included a provision for its extension by order for up to a year at a time. It has been extended each year since 1976. Naturally, I am only too willing to answer any questions that your Lordships may put to me about it.
I ask the House to agree to the Motion before it. I beg to move.
Moved, That the draft order laid before the House on 24th May be approved.—.(Baroness Trumpington.)
On Question, Motion agreed to.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until a quarter to eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.5 until 7.45 p.m.]

Police and Criminal Evidence Bill
House again in Committee on Clause 24.
Lord Elton Lord Elton moved Amendment No. 82:
Page 22, line 21, after ("be") insert ("readily").
The noble Lord said: I beg to move Amendment No. 82. This refers once more to the question of the address. As drafted, the Bill would require the police constable to go to very great lengths to discover whether or not the address was the correct address. He would have to search the electorial roll and so on. Plainly that is not what we intend in the Bill. So instead of saying, on page 22, line 21, that the address "cannot be ascertained by, the constable", we want to say "cannot be readily ascertained by the constable". It is very nearly a drafting amendment but not quite.
Lord Mishcon: I am not quite sure that it is just a drafting amendment. It really is an amendment that carries this matter much further, in the sense that it is not covering a situation where the name and address are not available. The qualification about not being readily available means that the police officer presumably need not take very much trouble to try to find out what the name and address is or to check it. The noble Lord the Minister knows the views expressed on this side of the House about the general tenor of this part of the Bill, but I think the Bill was much more acceptable in its original state without the insertion of the word "readily". I think that can cause a lot of trouble, with a police officer saying, "Well, it was not readily available and I interpreted "readily" as being the very second that I asked for it". I do not want to carry the argument to a facetious end and reduce it to an absurdity but at this moment I am wondering what would happen if the poor man stuttered.
Lord Elton: If the poor man stuttered I should hope the constable would treat him and his affliction with the respect that they deserved. The point is that paragraph (a) of subsection (3) as drafted will permit an arrest to take place if an offender's name cannot be ascertained by the constable concerned. We believe that this is too vague and is open to abuse on the part of offenders. I understand the noble Lord is anxious that there shall be no abuse on the part of the police. However, if an offender refused point blank to give his name on the spot, the officer would, in principle, as the Bill is now drafted, by a wholly unreasonable expenditure of time and effort, be able to establish it. He could discover if there was anybody in the district who knew him or—
Lord Mishcon: I apologise to the noble Lord for intervening. It is only because we are so anxious to get on. I suppose none of us wants to argue about semantics, but the noble Lord the Minister so appositely mentioned the word "reasonable" in his answer. If he had said that it was not "reasonably" instead of "readily", I would have thought that it might be more acceptable. If he would say that, having heard the brief discussion that has taken place before an attenuated Committee, there could possibly be consideration of the use of the word "readily" and other alternatives, or leaving the Bill where it stood,

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my noble friends and I would certainly not wish to waste further time.
Lord Elton: I shall, of course, look at this before the next stage if something like "reasonably readily" is what is in the noble Lord's mind. I never wish to encourage your Lordships to too much optimism when I take something away, but it would be unreasonable of me not to look at this again.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Aylestone): If Amendment No. 82A is agreed to, I cannot call Amendment No. 82B.
[Amendment No. 82A not moved.]
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 82B:
Page 22, line 22, leave out from ("for") to the end of line 24 and insert ("believing that the name furnished by the relevant person is not his real name;).
The noble Lord said: I wonder whether Amendment No. 82E could be taken with this amendment since the same principle is involved.
Page 22, line 28, leave out from ("for") to the end of line 30 and insert ("believing that the address furnished by the relevant person is not a satisfactory address for service;").
The first amendment relates to name, the second refers to address. The situation under Clause 24 at the moment is that the respective grounds for arrest in relation to name are
"that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name";
and in relation to address,
"for doubting whether an address furnished by the relevant person is a satisfactory address for service".
The Royal Commission report, dealing with this matter, at Chapter 3.86, set a rather different threshold. It stated that, for the arrest to be lawful, the officer must actually see the person committing the offence, and there then follow these words:
"and the person must positively refuse to give his name and address".
That is a different stratum to that which appears in the Bill. The amendments, dealing with both situations in the same way, would state positively that the officer has to be in the state that he is believing that the name furnished by the relevant person is not his real name and believing that the address furnished by the relevant person is not a satisfactory address for service. That is a higher level of dubiety than that which appears at present in Clause 24. It is a lower level of dubiety than that recommended by the Royal Commission. It is, I think, about as readily poised between the two as one can get. On that basis, I hope that the Minister will accept it as a perfectly laudable compromise. I beg to move.
Lord Elton: Clause 24 as drafted permits the arrest of an offender if inter alia the police officer concerned has reasonable grounds for doubting whether the name he furnishes is his real name. The first amendment will allow him to make an arrest if he had reasonable grounds for believing that the person's name is not his real name. There is no difference
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between the effect of these different formulations of the same test that I can see in the relatively short time that I have been able to look at the amendment. They appear to mean the same. We prefer our drafting. I think that that is probably right. The noble Lord will, however, understand that this is at first blush.
Lord Elystan-Morgan: I wonder if I may put the matter in this way to the noble Lord the Minister. I would be highly embarrassed if I had to try to define this in mathematical terms as I have not even a caveman's understanding of mathematics. However, will the Minister accept that, on the Government's present wording, a 20 per cent. doubt would presumably mean that there was within the wording of the Act reasonable ground for doubting. But, before one can qualify for the situation that is described in the amendments, there has to be a state where the officer is believing that the name furnished by the relevant person is not his real name; in other words, that he says to himself, "It is something higher than 50 per cent." It is the difference between those two conditions that make the substantial and fundamental difference between the Government's wording and that of the two amendments. I would be grateful if the Minister would mull over this in the days between now and Report stage.
Lord Elton: Had the noble Lord asked me to come to a decision now I would have firmly said, No. I may well say the same at Report stage, but I will look at it between now and then.
Lord Elystan-Morgan: On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 82C, 82D, 82E and 82F not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 82G:
Page 22, line 32, after ("person") insert ("from committing or attempting to commit the offence and thereby—").
The noble Lord said: If I can epitomise this amendment, it would be an attempt to make the arrest fit the crime, to copy Gilbert and Sullivan for one moment. I say that for this reason. The amendment would forge a link between the offence that is suspected and the action which the power of arrest is proposed to prevent. Without that, there would be created, in my submission, a new power of preventive arrest in relation to conduct that may in itself not be unlawful and which may have no relationship to the offence in question.
I should like to give a quick example. A man is taking part in a demonstration. It is a perfectly peaceful demonstration but nevertheless rather a bother to the police, possibly because of traffic considerations. The man drops some litter. The officer decides that this is a very good thing and that he will at least be picking up one of those in the demonstration. That will mean one less, and it will stop him causing him an unlawful obstruction of the highway. I do not wish to exaggerate by my example. But it is this sort of circumstance which makes it necessary, I repeat, to link the offence, as this amendment does,

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with the offence that is going to be committed and which the officer is stopping by the arrest. I beg to move.
Lord Trefgarne: Subsection (3)(d) is concerned with the prevention, for example, of injury or damage to property. It authorises the arrest of a person who is committing or who has committed or who is reasonably suspected of having committed an offence if the constable reasonably believes that it is necessary to prevent one of these consequences. The amendment proposed by the noble Lord seeks to relate these consequences back to the offence committed by the person concerned. I believe that this attempt to circumscribe the power of arrest more closely is neither necessary nor helpful. While, obviously, I would not wish to dwell on the point, there is an oddity in the amendment as drafted. By referring to the prevention of an offence, it implies that the offence has not yet been committed. But subsection(2) makes it abundantly clear that the power to arrest conferred by the clause arises only if an offence is already taking place or has already been completed. I would not want to rest my, argument on a point of drafting, particularly in these circumstances.
The point of substance underlying the amendment, which I suggest to your Lordships is mistaken, is that the consequences of an offence should not be regarded, as it were, free-standing of it. The power to arrest should be related to the harmful nature of the offence. In general, this would be so. In the case of a person committing the offence of being drunk and disorderly, it is in the nature of an offence that a risk arises of injury to other persons or damage to property which an arrest may be necessary to prevent. Similarly, in the case of the offence of vehicle interference, the continuation or repetition of the offence, if not prevented, would in all probability result in loss of property whether in the form of something in the car or the car itself.
I could offer other examples where everyone would agree that arrest was the sensible and practical course for an officer to take in the circumstances facing him at the time, but where the casual chain between the harm to be prevented and the offence committed previously is longer and more oblique than the amendment envisages. Therefore, I hope that the noble Lord will feel able not to press it.
Lord Mishcon: I feel that this deserves some further consideration. Certainly, I shall read very carefully what the noble Lord the Minister has said; but we have always to weigh the balance between the extreme examples that he can give and the fact that injustices of a grave nature can be committed. We cannot do it at this moment; I appreciate that. We cannot do it until we have considered what each of us has said. In the circumstances, I ask the Committee's leave to withdraw the amendment, but I hope that the Minister will look as carefully as I will at the things which have been said in the discussion.
Amendment, by leave, withdrawn.
8.1 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 82H:
Page 22, line 35, leave out paragraph (ii).
The noble and learned Lord said: We are dealing here with grounds on which a person may be arrested. In Clause 24, on page 22, your Lordships will see the words:
"that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person—
(ii) suffering physical injury".
It seems a very odd circumstance on which to justify arresting him. Does it mean suffering physical injury by, or in the circumstances of, the arrest, or by self-maiming or some activity of that kind? Clearly, suffering physical injury is not an offence, and I submit that it should not and does not form reasonable ground for an arrest. Perhaps we could have an explanation of what, to me at any rate, seems at the moment wrapped in the inexplicable and the mysterious. I beg to move.
Lord Elton: Although paragraph (i) refers to a person,
"causing physical injury to himself',
we think that a separate consequence of suffering physical injury is necessary. Let us consider the case of a person who is found committing an offence, not necessarily a very serious offence. An angry crowd gathers, and it is clear that the person is at risk of physical injury unless he is arrested and seen to be taken away to be dealt with under the law. We have also seen rather unpleasant television pictures—have we not?—of crowds outside police stations jeering at suspects and banging on the roof of the car as they are driven in or out of the station.
Such situations do arise on the street—not often, but from time to time—when a person is found committing an offence which inherently may not be very grave. If the offence is arrestable, then the officer can arrest the person under Clause 32, but, if it is not, then we believe that the power of arrest should be available in the offender's own interests if he is at risk of attack from the outraged local citizenry.
Lord Elwyn-Jones: A rescue operation giving rise to the possibility of arrest rather than protection creates a very interesting and somewhat difficult situation. I shall give further thought to this. I can well conceive that a drunk lying in the middle of the road, with traffic roaring round him, might be a circumstance. But, so far, I am not very impressed with the illustration that the noble Lord has given. I shall give thought to it, and in the circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: The next two amendments are printed the wrong way round. Amendment No. 83 should have been numbered 83A, and 83A should have been 83; so I call Amendment No. 83A.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 83A:
Page 22, line 37, leave out paragraph (iv).
The noble and learned Lord said: This is a provision which creates as a reasonable ground for a constable to arrest a person the need,
"to prevent the relevant person—
(iv) causing an offence against public decency".
The old language used to be, an affront to public decency; I think that was the old phrase.
In my submission,
"an offence against public decency",
is not a concept known in our criminal law. It is in very broad and very general terms, and I am afraid that at a time when allegations of entrapment are made, particularly on the homosexual scene, the use of the broad expression,
"causing an offence against public decency",
as the description of a ground on which a person can be arrested goes far too wide and creates, as I say, a concept which previously has never been part of the criminal law. We should like further elaboration of that, because at the moment it seems to us to be a wide and excessive extension of the grounds for arrest for which a great deal of justification is required before we can introduce it as a new element in the criminal law. I beg to move.
Lord Hutchinson of Lullington: I should like to support this amendment. It seems to me that we are here entering a real disaster area, because, if I may say so, police officers are notorious—almost as notorious as judges—for not keeping in touch with what are called public mores, and they are very liable to be totally out of date as to what is indecency and what is not indecency. We are not talking here about an offence: we are talking about a police officer, not who has seen an offence but who is predicting that an offence of indecency is going to take place.
From all one's experience, what you are going to be faced with is couples in the park going rather too far, in the view of the police officer; you are going to have people in motor cars behaving in some sort of sexual way, which may offend one police officer and not another; you are going to have people relieving themselves in alleys off Piccadilly, which some police officers will consider indecent; you are going to have two ladies on a park seat being affectionate towards each other, which will be considered by some police officers to be appalling; you are going to have people outside lavatories behaving, because police officers think they are homosexuals, in some way which is indecent; you are going to have nudity; and so on.
On one occasion I appeared for a Member of the other place whose whole life was totally destroyed because it was alleged that he was up to no good behind some laurel bush in St. James's Park. In spite of the officer being discovered to have completely falsified his notebook, the man was nevertheless convicted of some minor offence of indecency, which many people would have thought was hardly indecent at all.
I have also, in my time, appeared for a distinguished professor who, on the beach, quite alone, was quietly camping and making his breakfast on his primus
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stove. He was absolutely undressed—nothing on at all. Unfortunately, there were two ladies from Darlington who were also having a holiday on the same part of the beach. They were so horrified that they went to a telephone box and rang up the Dorset police, who immediately arrested this unfortunate professor. I am afraid that those are the kind of circumstances within one's own experience where people's lives are absolutely ruined because some officer, some person in the executive, has taken the view that their behaviour is indecent. Indecency is something about which we all have different views and I ask the Minister to delete this part of the clause.
Lord Auckland: I hesitate to intervene among so many legal experts, but I can see one aspect that leads me to think that the clause in the Bill is sound. As your Lordships know, in the precincts of London Bridge Station and other stations, one finds hawkers who are peddling video tapes and other things. Let us suppose that there are tapes of an indecent nature being peddled and a crowd gathers around the person selling them. There is surely likely to be an obstruction, particularly during the rush-hour with people getting to the station. Therefore, the clause in the Bill would, as I see it, enable the police to make an arrest where something which is indecent is being sold—be it video tapes or any other object. I wonder whether my noble friend the Minister can comment on this. I realise that this is a very legalistic aspect of the Bill, but I can see some validity here.
Lord Donaldson of Kingsbridge: There is a distinction between indecency and obstruction. The noble Lord has said that somebody, by selling something, whether it is indecent or not—even if it is cigarettes—is causing an obstruction. That is already some kind of offence, but there is nothing indecent about it.
Lord Mishcon: I was about to say that the noble Lord the Minister and I share many interests and one of them was in the Video Recordings Bill. I can assure the noble Lord that this would be an offence under that Bill when it becomes an enactment, and therefore there will be no difficulty in regard to it.
Lord Elton: The amendment which has been put forward by the noble Lord is addressed to the criterion of preventing an offence against public decency. Before dealing with that amendment, I should like to speak briefly to my own amendment to sub-paragraph (iv) which is Amendment No. 83, so that we can sweep them up together.
Amendment No. 83: Page 22, line 37, leave out ("causing") and insert ("committing").
That amendment simply corrects an error. On Report in another place subsection (3)(d)(iv) was amended to replace the words "affront to" by "offence against". While one may cause an affront, one commits an offence. My amendment simply corrects that verbal slip.
I return to the noble and learned Lord's amendment and it may be of help if I go back briefly to first principles. The power of arrest has two grounds: first, to ensure that the offender is brought before the courts,

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which includes the gathering together of sufficient evidence for this purpose; and, secondly, to prevent further harm being done. Paragraph (d) is concerned with the second of these grounds. What this part of the clause does is to give the police powers to act in circumstances where they would be expected to act by the public and to employ basic concepts which both police and public can readily understand.
The amendment aims specifically to remove the power to arrest a person reasonably suspected of an offence where there are reasonable grounds to believe that an arrest is necessary to prevent an offence against public decency. There can he no question that this power is necessary. Supposing a man was "flashing" women shoppers in a local street. We would all expect the police to prevent this behaviour. Certainly if there were a police officer there I would expect him to ensure that more women were not upset in this way. Fears have of course been expressed that this gives the police a licence to arrest any person whose behaviour is unconventional. That is a fear which I think that your Lordships have voiced.
We amended the Bill on Report in another place to meet that point in response to helpful suggestions made by the Opposition. I think that these fears are groundless. First, the phrase, "an offence against public decency" means exactly what it says. It does not mean any behaviour which is merely disapproved of by the majority of the community; the behaviour must constitute a valid offence. Secondly, let me emphasise, at the risk of restating the obvious, that the arrest powers should come into play if the person is already reasonably suspected of an offence. Thirdly, powers of arrest already exist for most of the offences concerned. What the Bill does is to replace a haphazard collection of powers with a single, readily understandable power, and one, furthermore, which unlike the present powers can be exercised only in relation to future harm and not simply by virtue of the fact that an offence has already been committed. I would draw attention to subsection (5) which provides that this offence must be in circumstances in which members of the public:
"cannot reasonably be expected to avoid",
the person concerned, for this power to become exercisable.
Lord Wigoder: Am I not right in thinking that paragraph (d) is intended where an offence has not yet been committed, and it is giving the police powers to arrest somebody before the offence has been committed? So if somebody is seen "flashing"—as the noble Lord has put it so vividly—at ladies in the street, that is committing an offence. What this clause says is that if somebody puts his hand on the top of his zip, a police officer is entitled to say, "I think that he is going to lower his zip and I then think that he is going to commit the offence" to which the noble Lord the Minister referred. Have I got this right or not?
Lord Elton: I think not. If the noble Lord looks at subsection (1) he will see that the first requirement is that the:
"constable has reasonable grounds for suspecting that any offence has been committed".—
Lord Wigoder: "or attempted".
Lord Elton: Yes. In other words it is not in anticipation of a first attempt. I see the man wrestling with cold fingers with his zip. That seems to me to be what the noble Lord calls up before us. There has to be some precursor to his expectation that an offence is going to be committed.
Lord Elwyn-Jones: With regard to the expression "flashing", which presumably means indecent exposure, that of course is already an existing established criminal offence and would be caught as such. But to deal with that and other situations under the umbrella—if that is not too delicate and kindly a word in the circumstances—of causing an offence against public decency, seems in my submission to be somewhat far-fetched.
I submit that the real mischief of this provision is that it imposes upon the constable a pure value judgment, and that in the circumstances of which we are speaking runs the risk of problems. I do not share the extreme language of the noble Lord, Lord Hutchinson, who in one fell swoop abused constables and judges with the same impartiality which of course is characteristic of his detachment in these matters. I do not share that view. But I submit that this provision attempts to establish a category of offence not known to the criminal law and it ought not to be introduced as a ground for effecting an arrest.
However fascinating and important this is—and I do not want to be flippant about it—it may well be that we can consider this matter perhaps at greater length at the next stage of our consideration of the Bill. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.19 p.m.
Lord Elton Lord Elton moved Amendment No. 83:
[Printed earlier: col. 468.]
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 83B:
Page 22, line 38, leave out paragraph (v).
The noble Lord said: The purpose of this amendment is to delete the fifth category in Clause 24(3)(d), which reads:
"clausing an unlawful obstruction of the highway".
As the Committee will be aware, the constable is entitled to arrest if he has reasonable grounds for believing that arrest is necessary to prevent a person from doing what is in subparagraph (v); in other words, the constable is entitled to act in anticipation of an obstruction of the highway. My noble and learned friend Lord Elwyn-Jones, in relation to the preceding category of causing an offence against public decency, said that there was a danger that this would become very much a value judgment of the police officer concerned. I would pray in aid the same argument in relation to an anticipated unlawful obstruction of the highway.
We can think of dozens of occasions—can we not—when persons in a particularly innocent way will be obstructing a highway: for example, a queue outside a shop; a crowd waiting to go into a football ground; a smaller crowd of people listening to a parliamentary candidate when he has come along with his sound truck hoping to address one or two people who have gathered together. Indeed, the example that comes very readily to mind is that of half a dozen people lawfully picketing. Their picketing may be utterly unobjectionable but at the same time, if one wanted to be technical, one could say that they were obstructing the highway.
Without giving any more examples (and I can think of dozens), the point I seek to make is that there is conduct which, because of the good common sense of police officers, is tolerated day in and day out. and thank goodness for that. Were it not so, society would not be able to go about its lawful and normal business, but such conduct, which may be perfectly acceptable to one police officer, may, under this Bill, by the very whim and caprice of another police officer, be regarded as an arrestable condition.
My noble friends on these Benches take the view that this situation if too delicate to be included within the arrest provisions and that it would be wiser, more politic and less likely to lead to embarrassing situations in the future if this fifth condition in paragraph (d) were to be deleted. I beg to move.
Lord Renton: I wish to oppose this amendment and as I have not previously spoken on subsection (3) and in particular on paragragh (d), I should like to congratulate the Government on introducing a merciful provision which, admittedly, according to the judgment of the police, will enable them to save people the opprobrium of committing offences and having to be brought before the court for doing so.
Perhaps I may take the example that the noble Lord, Lord Elystan-Morgan, gave of pickets. We all know, and the police know, that if six pickets, and no more—or not many more—desire to picket, they are perfectly lawful in standing on the pavement in order to do their picketing. But if it appears abundantly clear to a police officer that they are about to try to supplement their picketing by obstructing the highway, by putting large objects there which would prevent the movement of traffic, then they should be encouraged to desist, and if they refuse to desist, the police are still left with the obligation to keep the highway clear.
If somebody refuses to co-operate in keeping the highway clear, surely the merciful preventive provisions of this paragraph of subsection (3) should come into operation. Therefore, I think that it would be wrong to delete subparagraph (v) of paragraph (d).
Lord Elton: The power to arrest, with which we are dealing here, is the power to arrest where there are reasonable grounds for believing that arrest is necessary to prevent an unlawful obstruction of the highway. There is, of course, nothing new about such a power. The offence of wilfully obstructing the highway has always carried a power of arrest.
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This power, which is currently contained in Section 137 of the Highways Act 1980, is to be repealed by Clause 25(1) of this Bill. This provision, therefore, simply reserves the existing position, except to the extent that the power in the Bill may be exercised only where arrest is necessary to prevent a continuing obstruction. Of course, the present power is not limited in this way, so the power in the Bill is narrower than that which we now have. Plainly the police need a reserve power of arrest. Obstruction of the highway can disrupt a great number of people as they go about their business. If the police cannot persuade a person to move along voluntarily, they have no option but to arrest that person.
I would emphasise that the paragraph refers to an "unlawful" obstruction. The noble Lord, Lord Elystan-Morgan, quoted several forms of obstruction which appear to me to be perfectly lawful. Therefore, the paragraph incorporates the test contained in the 1980 Act itself. Originally, we had not thought it necessary to do so because the arrest power in the Bill, which replaces the existing one in the 1980 Act, only comes into play when a person is already suspected of an offence, and a person cannot be reasonably suspected of obstruction under the 1980 Act if he has a lawful authority or a lawful excuse. I believe that those words will particularly reassure the noble Lord, Lord Elystan-Morgan.
However, it is clearly right that a person who has committed an offence under the 1980 Act should not be liable to arrest if the obstruction that he is about to cause is on this occasion lawful. In response to criticisms made by Her Majesty's Opposition in Committee in another place, we amended the Bill to refer to unlawful obstructions. Therefore, I hope that what pleased the Opposition in another place may eventually please the noble Lord in this Committee.
Lord Elystan-Morgan: I have listened with interest to what the noble Lord, Lord Elton, has said and I shall certainly give the matter further thought between now and Report. Therefore, on that basis, I seek the kind leave of the Committee to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 83C:
Page 22, line 42, at end insert—
("() for the purposes of subsection (3) above the constable shall inform the relevant person that he may nominate another person to accept service of a summons for him and may give that other person's addrss.").
The noble Lord said: If my analysis of the law of averages is right, the Government are able to concede one in about 70 amendments, and I believe that I have reached the stage now where my analysis of the law of averages has made me optimistic. The noble Lord made much of the fact, and rightly so, that anyone would escape arrest who was able to give a proper address where acceptance of service of a summons could be effected. The officer may know that, your Lordships may know that, but the poor person who is confronted with the questions about his name and address and how service can be effected will not know unless the policeman tells him. Therefore, this

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amendment simply says—and I hope that the Minister can accept it—that the constable concerned will:
"inform the relevant person that he may nominate another person to accept service of a summons for him and may give that other person's address".
That is the simple amendment, simply moved, and I hope simply accepted. I beg to move.
Lord Renton: So that I may understand this amendment, I wonder whether the noble Lord, Lord Mishcon, would envisage these circumstances? Supposing I were the relevant person and I decided to nominate him as a person to accept service of a summons on my behalf, without ever having been in touch with the noble Lord and without knowing whether or not he would accept service. Would that be, in his opinion, a valid compliance with his amendment?
Lord Mishcon: The noble Lord puts a very proper question, but it should be addressed to the Government and not to Her Majesty's Opposition. The reason I say that is because the Bill provides that somebody can give an address for acceptance of service. I am merely saying that if that is a right given under the Bill the person concerned should, at least, be informed of it.
Lord Elton: Lord Mishcon's noble friend, the noble Lord, Lord Elystan-Morgan, may not have the understanding of mathematics of a caveman but it is quite clear that the noble Lord, Lord Mishcon, understands averages to some extent. We accept that there is a point of substance identified in Amendment No. 83C which requires the constable to explain to the person concerned the fact that the address of some other person may be adequate for the service of a summons, even when he has no suitable address of his own. It could perhaps happen that the arrested person did not realise that an alternative address would do. Though I have no doubt that in practice police officers would draw attention to the acceptability of an alternative, I accept that there is nothing to require them to do so in the Bill as drafted. I am not quite sure how we should meet that point. The noble Lord will recognise that we have had little time to consider that and we shall need to be careful of inhibiting police action in the sort of situation where the suspect makes off, or makes ready to do so, and there is no time to engage in any sort of explanation.
I remind my noble friend that the constable has to be satisfied that it is an address at which he can expect to be able to serve a summons. How he establishes whether the suspect is a life-long friend of the noble Lord, Lord Mishcon, or only a passing acquaintance or distant relation, I do not know. But the law should provide that where the noble Lord, Lord Mishcon, is happy to be in receipt of the summons—and who more appropriate?—then the person should have that possibility drawn to his attention. To that extent it looks as if there will be another very large number of amendments before we can accept anything else.
Lord Renton: I wonder whether my noble friend will be so kind as to explain. Is it for the constable to decide
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whether a person nominated to accept the summons will be willing and able to do so or must he be given some kind of assurance to that effect by the relevant person? This seems to me to be the relevant point.
Lord Mishcon: I am sure that the noble Lord, Lord Renton, will take it from me as in no way belittling the point he has made, but this matter should have been taken when we were dealing with the question of the ability to give such an address for service. That point has now passed. I am merely dealing with the fact that the Bill has now spoken in relation to that right and the person concerned should know of it. If I may be presumptuous enough to say so, no doubt the noble Lord will now raise this at Report stage when we may get clarification.
If the two Front Benches cannot agree on politics or philosophy and other matters, it is awfully nice to know that they can agree on mathematics and the analysis of averages. I am delighted that I was right in thinking that the turn has now been reached for an amendment to be accepted in principle, if not in the words used. In those circumstances I beg leave to withdraw.
Lord Elton: Will the noble Lord just allow me to reassure my noble frend to save a future debate? The requirement rests in Clause 24(3)(c)(ii), which says,
"the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service".
So it does depend on the constable and the constable will require training in what he should accept.
Lord Renton: If that interpretation is correct, one wonders why the amendment is necessary. However, I will not pursue the point.
Amendment, by leave, withdrawn.
[Amendment No. 83D not moved.]
On Question, Whether Clause 24, as amended, shall stand part of the Bill?
Lord Denning: May I raise one point on clause stand part, which concerns subsection (6), which says:
"This section shall not prejudice any power of arrest conferred apart from this section".
When we discussed the corresponding subsection (8) of Clause 23 that had gone out. I wonder whether subsection (6) remains of any effect in view of Clause 25, which says that any power of arrest and so forth,
"shall cease to have effect".
In other words, I am wondering whether subsection (6) ought not to go out in the same way as subsection (8) has gone from the other clause.
Lord Elton: I think that I would be wise, given the experience of those who drafted and the experience of he who criticises, to take leave to consider that point between now and Report.
Clause 24, as amended, agreed to.
Clause 25 [Repeal of statutory powers of arrest without warrant or order]:
On Question, Whether Clause 25 shall stand part of the Bill?
Lord Renton: This is another rather strange provision. It is a case of, in effect, a repealing method. It is an indirect and rather obscure repealing method. It is a non-textual repealing amendment of a great many previous provisions.
When we were discussing Clause 7 the noble Lord, Lord Mishcon, drew attention to Clause 7(2) which had a somewhat similar effect. I rose to support him in the plea that he made and we obtained a quick assurance from the Government that the point that we made would be considered between now and Report. I make the same plea in relation to this clause.
The concluding words are:
"shall cease to have effect".
That is a well-established draftsman's euphemism for the expression "repeal".
As I have pointed out, there will be many previous repeals, including those in local Acts, which will take place as a result of this clause. It is tempting to say that the draftsman has contrived a short, simple method of enabling everybody concerned to disregard a large number of previous statutory provisions. But without turning to them—and they are very numerous—we do not know which they are; until individually they come to be considered in particular cases nobody is likely to list them or to turn them up. Therefore, I suggest that even though it means adding several pages to the repealing schedule of the Bill, it might be better to achieve this purpose in that way instead of in the way that is attempted in Clause 25.
Lord Mishcon: If the noble Lord, Lord Renton, will allow me to do so, I support everything that he says.
Lord Denning: I should like to support it, too. When in all these volumes we have statutes repealed, the people who compile the statutes can strike them out. That cannot be done simply. Someone has to go through it. It is what I said earlier on Clause 25. We have 15½ pages concerning powers of arrest. Are they to be repealed or not? I assume that they are to be repealed. If so, that ought to be carried out expressly so that all the people who compile statutes can strike those out of their books and have this simple clause instead.
Lord Elton: I can see the attraction of what my noble friend and the noble and learned Lord says. There are two approaches, are there not? One would be to do what we have done in the Bill which is to say that everything of this nature shall be struck out except that which is reserved in Schedule 2. Schedule 2 is a relatively short schedule and is easier for us to discuss. Or we could say that everything will be preserved except what is listed in Schedule 2 and we would have a very long schedule to discuss. The list, which has been referred to already in debate, is in fact printed in Appendix 9 to the Royal Commission's report.
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The problem is less than one might have thought because the public general Acts affected are listed for repeal in Schedule 7, so the Acts that your Lordships are concerned about are the lesser Acts that are not public general Acts, and I see that there is force in the argument that the local Acts and the particular Act should be listed somewhere. As I have already said, we will take this on board before Report. I cannot, without advice, and I think without fairly considerable reflection, say whether there will be much that I can do, but what I want to leave in your Lordships' minds is the fact that, by reason of Schedule 7, the list of repeals which are not specifically referred to on the face of the Bill is not as long as otherwise would be the case.
Clause 25 agreed to.
Schedule 2 [Preserved powers of arrest]:
8.42 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 84:
Page 102, line 22, at end insert—
("1984 c. 00. Section 5(5) of the Repatriation of Prisoners Act 1984.").
The noble Lord said: On behalf of my noble friend, I rise to move this amendment, which will preserve the power of arrest conferred by Clause 5(5) of the Repatriation of Prisoners Bill, now being considered in Committee in another place. Your Lordships will recall that this gives a constable power to arrest without warrant an escaped prisoner. It is therefore similar in nature to the power of arrest conferred by Section 49 of the Prison Act 1952, which is already listed in the schedule. Powers to arrest escaped prisoners will not necessarily be covered by the general conditions for arrest contained in Clause 24, but it is plain that the police need power to arrest without warrant and without more ado persons unlawfully at large. If as we anticipate, the Repatriation of Prisoners Bill receives Royal Assent before this Bill, the power to arrest contained in it will be repealed by Clause 25(1) unless it is added to Schedule 2. This is the effect of the amendment.
I should like to take this opportunity also to give your Lordships some notice that Schedule 2 may require a small further expansion at Report. In particular, we have been looking again at preserving in their present form the powers of arrest for soliciting by prostitutes, since the general arrest conditions (and Clause 24(3)(d) is relevant) may not be wholly adequate to meet the enforcement needs of that particular offence. We may, therefore, propose their preservation subject to the views of the Criminal Law Revision Committee, which is now reviewing this whole area of the law. I ought also to mention the reference to the Prevention of Terrorism Act at the end of the schedule. I am afraid that the saving here will require a technical amendment, as will a number of later references to the terrorist provisions later in the Bill. These, too, will be brought forward on Report. I beg to move.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 26 [Arrest without warrant for fingerprinting):
Lord Mishcon Lord Mishcon moved Amendment No. 84A:
Page 23, line 26, at beginning insert ("Subject to subsection (1A) below,").
The noble Lord said: I apologise for being slow to rise. As I understand it, this amendment is to be taken with Amendment No. 85D.
Amendment No. 85D: Page 23, line 36, at end insert—
("(1A) The power of arrest conferred by this section shall not be exercisable unless the court by which the person was convicted has made an order authorising the taking of his fingerprints.").
Your Lordships will see that in the first amendment there is a reference to subsection (1A), which is Amendment No. 85D, to which the first amendment makes the clause subject. It is the view of, I hope, many of us that it would be quite wrong to exercise the power here unless the court by which that person was convicted has made such an order. I beg to move.
Lord Gifford: I should like to support this amendment. As I understand it, Clause 26 introduces a new power to have the fingerprints taken of anybody who has been convicted of certain offences which are described as "recordable"; and no doubt the noble Lord the Minister will tell us what "recordable offence" is going to mean, because under the Bill it means only an offence to which regulations under this clause apply. What worries me is the concept that the mere fact of being convicted for an offence is sufficient not only to allow the police to take your fingerprints but to allow them to arrest you if you refuse to go along and have your fingerprints taken.
Surely the taking of fingerprints is not in order to feed the voluminous police computer and to make sure that everybody is included upon it, but in order to prevent crime and to detect criminals. If someone has been convicted of an offence who, in the view of the court. is not in the least likely to commit another offence and who should not have his fingerprints taken, then why should they be taken? In other words, the protection of a court order should be inserted in this clause.
Lord Trefgarne: I imagined that the noble Baroness, Lady Ewan-Biggs, might want to intervene on this point because it occurs to me that we might group together rather more amendments than did the noble Lord at the outset.
Lord Mishcon: I think it would be convenient to the Committee, this being a separate principle, for us to deal with this separate principle of the court order; and then we can go on to the other amendments and deal with rather different principles.
Lord Trefgarne: I am happy to proceed in that way if I may first extract my notes from the single speech that I had prepared for this occasion. Before I deal, on a later occasion, with the amendments of the noble Baroness, let me say a word about the fingerprinting amendments, which I think were uppermost in the minds of noble Lords. National police records of convictions are maintained on behalf of all police forces by the National Identification Bureau at New
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Scotland Yard, incorporating the National Criminal Record Office, as a common police service under Section 41 of the Police Act 1964. NIB records comprise records of convictions and the national fingerprint collection. The collection has two purposes. First, fingerprints found at scenes of crimes may be chacked against it; and, secondly, the record of convictions are distinguished one from another by fingerprints. This is so because fingerprints identify uniquely, and attempting to identify records by name and date of birth would lead to error and uncertainty, particularly since it is not uncommon for criminals to acquire aliases.
It is accordingly by means of fingerprints that the police are able to establish whether a person charged with a recordable offence has previous convictions for recordable offences, and, if so, what they are. They can establish whether or not the person concerned is wanted, perhaps under another name, or in a different force area, in connection with other offences; for example, if there is an outstandng arrest warrant against him. May I say in parenthesis, as to the phrase "recordable offence", about which the noble Lord, Lord Gifford, asked me, that the current list of recordable offences is contained in a Home Office circular, a copy of which, I understand, is in the Library.
It is also very important for sentencing purposes that the police are able, when they provide the court which has convicted an offender with information about the criminal record, to ensure that the information that they supply is accurate and relates to the right person. So not only is fingerprinting (which is not painful or, indeed, unpleasant) a key investigative aid, but a comprehensive fingerprint collection is an integral part of the whole sentencing process. It is essential from both points of view that the fingerprints of all those convicted of recordable offences are recorded. If not, the accuracy of the national criminal record system will inevitably suffer.
Turning to the amendments—and I hope I am now speaking to the right ones—Nos. 84B and 85E would limit the power of arrest conferred by Clause 26 to persons over the age of 16.
Lord Mishcon: I hope I am not confusing the noble Lord, but I must at once admit that if we did not want to take all these together we should have said so before. I do apologise, but it has occurred to us that it would he only proper to deal with them separately because there are amendments here which deal with the question of time and there are amendments which deal with the question of the principle in regard to an order of the court having to be obtained. It is solely that principle that I dealt with in very quickly moving Amendments Nos. 84A and 85D. That is purely the one dealing with an order of the court.
Lord Elton: I wonder whether I might clear the air on this matter before my noble friend returns with his unequalled ability to the issue to which the noble Lord, Lord Mishcon, has directed his attention. The list of amendments, as the noble Lord has freely admitted, was circulated and was agreed; there was an alteration made to accommodate the feelings of his noble friends. There has been a very considerable

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number of amendments going down in the last 48 hours—indeed in the last 24 hours—which puts us under fairly considerable pressure, If a grouping is agreed, the speaking notes are arranged to fit the grouping and the Minister at the Box then has the job of unscrambling and unknitting what he has done in order to assist your Lordships in dealing with particular points. So when the noble Lords seek to make it easier and clearer by separating the issues, the result is more like a plate of spaghetti than it was to start with. So if noble Lords would bear with my noble friend, if we can generally stick to the groupings it would be very helpful.
Lord Mishcon: We not only bear with him, we sympathise with him and we apologise to him. At the moment I am covered in sackcloth and ashes, if I may mix the metaphor which the noble Lord the Minister used.
Lord Elton: The noble Lord looks particularly handsome in them.
Lord Trefgarne: If I may just return to what I think is the amendment to which the noble Lord has drawn my attention, that is Amendment No. 85D, page 23, line 36, at end insert—
Lord Mischon: That is taken with Amendment No. 84A.
Lord Trefgarne: To be frank, I am afraid I am not able to unscramble my remarks in the way the noble Lord requests, but the noble Lord will not be surprised to hear that although I am not for the moment able to provide him with the most cogent arguments, the fact is that the Government are not able to accept the amendment.
Lord Mishcon: I wonder whether I can help the noble Lord. My noble friends and I repeat our expression of regret. We think that what we ought to do is to allow all the amendments to be spoken to together. Then the speech which the noble Lord, I am sure, was going to abridge in any event, will nevertheless cover all the points that are going to be made. I think that is the best way for dealing with it, and I am sorry if we have held up the Committee.
8.54 p.m.
Baroness Ewart-Biggs: If my noble friend Lord Mishcon is covered with sackcloth and ashes, I am even more so and I apologise for not being here at the beginning of the discussion on this group of amendments. I was attending to a maternal duty, perhaps your Lordships will forgive me doing that.
I should like to speak to Amendments Nos. 84B and 85E.
Amendment No. 84B: Page 23, line 26, at end insert ("over the age of 17").
Amendment No. 85E: Page 23, line 36, at end insert—
("() If, in the case of a young person, the requirements of subsection (1)(a) and (b) above are satisfied and that person and/or his parent or guardian withholds consent to the taking of his fingerprints, a summons may be issued requiring the young
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person to appear before a magistrates' court and the said court shall be empowered to order that the fingerprints of the said young person shall be taken.").
I promise you that I shall not make the long speech I had planned because I think the purpose of these amendments is very clear. It is to exempt young people from the police power of arrest without a warrant for fingerprinting and, instead, to substitute power to issue a summons to these young people requiring them to appear before a magistrates' court for fingerprinting instead.
This amendment also reflects the code of practice's definition of the appropriate consents which are needed for fingerprinting young people; namely not only a young person's consent but in addition that of the parent or guardian. This is included in these amendments and I think there is no doubt that the powers under this clause would encourage the attention to people with criminal records. It has already been acknowledged that it would be young people who would be more likely to be subjected to any kind of police harassment, especially if they had been known to the police beforehand. So it seems entirely desirable to keep young people and children out of police stations, as this amendment tries to do, and also to ensure that these young people retain the support and supportive presence of a parent or guardian.
The importance of this amendment is made even greater—and I am certainly not going to do anything but touch on this aspect—through the fact that later in this Bill the age of fingerprinting has been lowered from 14 to 10 years. This change is opposed by the probation services, and the members of the Royal Commission were divided on this particular issue of lowering the age for fingerprinting from 14 to 10. I think this adds great weight to the amendment, and I should like to do no more than commend these two amendments.
Lord Trefgarne: In the hope that I have now the right words to put before your Lordships, may I confirm that these amendments would limit the power of arrest conferred by Clause 26 to persons over the age of 15. But as I have explained, it is necessary for the records maintained by the National Identification Bureau to contain the fingerprints of all people with convictions for recordable offences, whatever their age. It follows that it is therefore necesary that the reserve powers of arrest conferred by the clause should apply to all such persons.
In an ideal world where juveniles did not commit offences, there would be no need for Clause 26 to apply to them. But unhappily juveniles, even where children and not young persons are concerned, commit offences, and sometimes very serious offences indeed. The proportion of those found guilty of or cautioned for indictable offences who are aged between 10 and 14 has run for some time at about 10 per cent. Such a high proportion is alarming and I believe it underlines the continuing need for the power recommended by the Royal Commission.
The great majority of the indictable offences concerned are offences of burglary, theft or handling—the very offences where fingerprint evidence may be directly relevant and useful. If we

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want the police to be able to detect re-offending by youngsters involved in such crime and to put them before the courts in their own interests, as well as those of society at large, it is essential that anyone who is convicted of a recordable offence has his fingerprints on record.
I am sure we all wish to see the proportion of young offenders drop and where possible children kept out of the criminal justice system; but it is important to bear in mind that children do no acquire criminal records by having their fingerprints taken. They acquire records and are to have their fingerprints taken because they commit offences. Even if fingerprints were not taken, criminal records would still have to be kept by the police for various purposes. Fingerprinting simply ensures that these records are accurate, and indeed the knowledge that his fingerprints are on record may help to discourage a juvenile from committing a further crime. This I believe is an important point.
We are of course aware, as the noble Baroness has explained, that Amendment No. 85E is intended to provide an alternative to the arrest procedure applied to the over-15s in which a child under this age could be required to attend court following conviction, so that the court could consider making a fingerprinting order. Leaving aside the technical point that the power of magistrates to order fingerprints to be taken under Section 49 of the Magistrates' Courts Act 1980 is repealed in Schedule 7, we are firmly of the view that the procedure envisaged by the noble Baroness would not serve any useful purpose. It would only do so if we wanted to confer a discretion which the magistrates could exercise or decline to exercise.
However, the fact is that it is the Government's view that there is no scope for the exercise of discretion in these circumstances. If someone, whether a juvenile or not, is convicted of a recordable offence, then a record must be made and his fingerprints taken for this purpose. This should be an automatic procedure, as otherwise the criminal records system of this country will remain incomplete and inaccurate. To ensure that he is not arrested, all a convicted person has to do is to co-operate in providing his fingerprints. The need for compulsion only arises if co-operation fails. I have dwelt on the considerations that apply to adults and I will not therefore consider them further, but I would ask your Lordships not to proceed with these amendments.
Baroness Macleod of Borve: May I intervene briefly to say that I agree entirely with what my noble friend has said? With my perhaps limited experience over 30 years of trying to judge juvenile crime, such crime, as my noble friend has said, is increasing enormously. Juveniles are led by the adults; they are pushed through windows by adults. These are young people whom we have to arrest. We have to bring them before the courts in their own interests and in the interests of the country. If we do not stop them from committing crimes and we do not try to deter them perhaps by some suitable punishment, we shall be laying ourselves open to more and more adult crime. So I entirely agree with my noble friend.
Baroness Ewart-Biggs: There was one point that I wanted to raise. I thought our amendment used the words, "over the age of 17", and not, "over the age of 15".
Lord Trefgarne: I am aware that two ages have been mentioned. I believe there has been some confusion over that point in the printing of this particular amendment. If it is 17 that the noble Baroness has in mind, I am happy to be corrected.
Baroness Ewart-Biggs: Perhaps there was an error in the printing, but the final age was certainly meant to be over the age of 17. Of course I do agree that there is a lot of crime among young people. Of course we have to accept this; the statistics show it; the courts know it; and there is no doubt about it. But many of us worry a great deal about the way in which young people can be alienated totally from the police and the fact that this can actually create a criminal instinct in them. I think that if you take a young person to a police station and take his fingerprints he may feel part of a television series and it may actually bring him further into that area of crime than might happen if he were taken with his parents to a magistrates' court to be dealt with in that way. That is why we have put down this amendment. Many organisations are involved with young people—the probation service, the Children's Legal Centre and others—are very anxious that these young people should be kept somehow with a supportive person such as their parent, guardian or whatever, and away from the police court environment. I am disappointed that the Minister has treated this without any kind of understanding of this amendment.
Lord Mishcon: I only wanted to add just a very few remarks indeed. I am not quite following the noble Lord the Minister, unless we are saying in this Bill that the police are right and we are right and we know about every conceivable case of young people who come before the courts and who have committed offences and that the juvenile magistrates who are dealing with the offence are secondary to our consideration and the police consideration and our legislative powers. All that my amendment and that which my noble friend has moved asked for is this: that there should be no power of arrest in regard to the taking of fingerprints unless the court that convicted the young person, which would know all about the offence and all about the background of that person, made the order. It may very well be that the order will be made in 99 per cent. of cases: so be it. I am thinking of the 1 per cent., and that 1 per cent. might indeed stop—because the court would want to do it—that young person from thinking that he or she was now in the gallery of convicts (I am not trying to be dramatic) having had his or her fingerprints taken and been arrested. All I am asking for is the sanction of the court that knew all about the case from start to finish. That must be right.
Lord Trefgarne: I hear what the noble Lord says, but I do have to say that I think we are dealing here not only with the 99 per cent. to which the noble Lord referred but, as effectively as we can, with the 1 per cent. too, not only in the interests of maintaining

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police records, to which I have referred, and not only in the interests of ensuring that we get a better conviction rate, or whatever, but in the interests, too, of those who are convicted in these matters.
I am persuaded, I must say, that a complete, accurate and up-to-date record of the kind I have referred to, which is provided for by the fingerprinting arrangements which appear in this Bill, is better not only in the interests, as I said earlier, of a better detection rate and of keeping down the very sharp rise, to which my noble friend Lady Macleod referred, in juvenile crime and in other crime too, but also in the interests particularly of the young people concerned who are so much in the mind of the noble Baroness, Lady Ewart-Biggs. I am persuaded, therefore, that these amendments would not be effective in that particular way and I do hope that your Lordships will not wish to persist with them.
Lord Mishcon: I will detain the Committee no longer, but we are really saying that we know better than the courts we set up which try these young people. I think that is a very sorry state of affairs.
Baroness Ewart-Biggs: I beg leave to withdraw Amendment No. 84A.
Amendment, by leave, withdrawn.
[Amendment No. 84B not moved.]
9.8 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 85:
Page 23, line 27, at end insert—"(aa) has not at any time been in police detention for the offence;").
The noble Lord said: This clause empowers the police to arrest a person within one month of conviction for a recordable offence defined in the clause, if he refuses a request to go to the police station in order that his fingerprints may be taken. As is explained in the notes on this clause, our intention is that where prosecution has been by way of summons and no custodial sentence is given, the police should nevertheless be able to obtain fingerprints. These are needed for future investigations and to prove convictions in any future court proceedings.
On Report in another place, it was pointed out that the clause would, in fact, permit an arrest to take place even if the person had previously been in police custody in connection with the offence. If he has indeed been charged with the offence, the police will already have had an opportunity to take his fingerprints by virtue of Clause 58(3). If, through oversight on the part of the police, this opportunity to take his fingerprints has been missed, we do not believe that the person should be put to the inconvenience of attending a police station at a later date. It was not his fault that fingerprints were not taken at the right time, and we accept that he should not be liable to arrest for this purpose. This amendment prevents the Clause 26 power from being used by the police to remedy their own failures. If your Lordships agree to it, it will only be possible to arrest a person if he has not previously been in police detention for the offence in question. I beg to move.
Lord Gifford: One can only welcome this amendment. It introduces a flexibility into the procedure which was singularly lacking when the Minister replied to the amendment of my noble friend Lady Ewart-Biggs. Besides welcoming it, I rise only to ask one question about this procedure and it may be that the noble Lord will not be able to answer it immediately.
When a person goes to court, will some arrangement be made so that, if he is liable to have a police officer call at his house some time later within the next month to arrest him if he does not go to the police station, some effort is made to notify him that this is going to happen? I can see all sorts of confusion and conflict arising if people have no idea that this power exists, but a month after the whole case is opened find someone knocking at their door and saying, "Come down to the police station on pain of arrest". Surely, since the person is appearing in court, some arrangement can be made whereby he can be notified at court that this is likely to be happening to him. I wonder whether now or at a later stage some thought can be given to this point.
Lord Trefgarne: The noble Lord has made a good point. Perhaps I can consider whether the prisoner should be notified at the stage of the court hearing, or in some other way, and come back to the noble Lord at a later stage.
Lord Hutchinson of Lullington: Perhaps I may raise a point now, instead of addressing the Committee on clause stand part, which I intended to do. What we cannot understand is why the fingerprints are not taken at the time when the offence is dealt with. What we find so offensive is that, in any period during the next four weeks after an appearance in court, anybody—including children from 10 years of age—can be approached by the police, arrested, taken to the police station and forcibly fingerprinted. That may arise in a situation where the penalty imposed was nothing at all to do with custody. Everybody is concentrating on children, and quite rightly so, but it will apply to anybody. Someone will attend court, will be convicted, will be put on probation, will be given an absolute discharge, or will be fined £5. He will then go home and three weeks later there will be a bang on the door by two police officers, who will take that person off to the police station to have him fingerprinted.
The noble Lord the Minister said that to have your fingerprints taken is not unpleasant. Once again, there is a curious lack of reality—I say so with the greatest respect—in so many replies that come from the Government Front Bench. Of course, to have your fingerprints taken does not hurt physically, but it is the most appallingly undignified situation which you have to go through. You are taken into the police station, you are sat down, the equipment comes in, you place your thumb and so on; to the ordinary person who has not had a custodial sentence it is an appalling trauma and an exceedingly undignified situation. The Government have got into this mess because they have removed the Section 49 provision, which made it incumbent upon magistrates to decide whether a person should have his fingerprints taken. In my opinion, it was a perfectly straightforward and

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excellent system whereby the magistrate said, "You will have your fingerprints taken, but not until I say so. I shall decide". The police are now going to decide.
Surely this clause is an administrative convenience for the police. If they fail to take fingerprints at the right time, they are empowered to go and arrest people so that their fingerprints can be taken later. Therefore, I ask the Minister to explain to the Committee why arrangements cannot be made for fingerprints to be taken at the time of conviction. If they are not taken at that time, that should be the end of it. People should not be harassed afterwards.
Lord Trefgarne: I believe that, generally speaking, fingerprints will be taken at the time that the noble Lord suggests, but we have to make provision for the situation in which an offender may disappear from the court before the police can speak to him. Once he has left the dock, I am told that the police have no power to detain him unless a specific power is provided which enables them to do so. We are talking about a situation in which a man has left the court and has declined to accept the invitation to have his fingerprints taken. Therefore, the power to arrest him is provided. I do not believe that having one's fingerprints taken is quite so awful as the noble Lord suggests. I have had my fingerprints taken, and I am told that my noble friend Lord Elton has had his fingerprints taken, too. It is neither painful nor inconvenient.
In my case and that of my noble friend, it was done because there had been a robbery in our homes and our own fingerprints had to be dissociated from those of the light-fingered burglar. This happens a great deal on a routine basis, and there is nothing to fear from it. It is very much in the interests not only of law enforcement but also of the prisoners themselves, in order to avoid confusion for them at a later stage, that their fingerprints should be taken. I hope your Lordships will agree that this special power, to be exercised only in the particular and narrow circumstances to which I have referred, is appropriate, and that therefore the clause should stand part of the Bill.
Lord Donaldson of Kingsbridge: I am not satisfied with that explanation. I do not think it matters in the least that one should have one's fingerprints taken. It is not nearly so traumatic as my noble friend has suggested. If it is, they have earned it. But the police have got to do it at the right time. What is very damaging is when the police come back three weeks later and ask for a trial in public. That is what we ought to stop, and I am absolutely opposed to it being allowed to happen. I do not mind if, after conviction by the magistrate, the police say, "Before you go, come down and have your fingerprints taken". What is monstrous, however, is the knock on the door. This is easily avoided. If the police know that they have got to do it, they will do it; so we must insist upon it.
Lord Auckland: As this is a very important part of the Bill, I wonder whether my noble friend the Minister could answer two brief questions. First, if a child has his or her fingerprints taken, can the parents or the guardians insist upon being present at that time? Secondly, I wonder whether my noble friend can say
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what happens to the fingerprints after they have been taken, assuming that there is no case to answer. Presumably the fingerprints are destroyed. I wonder whether my noble friend can confirm that that is the position.
Lord Donaldson of Kingsbridge: Fingerprints are taken only on conviction.
Lord Trefgarne: The noble Lord, Lord Donaldson of Kingsbridge, has provided my noble friend with the answer to his second question. We are referring to the taking of fingerprints after a conviction has been achieved. As I said just now, the moment that a case has been disposed of the police have no further powers of detention so far as the prisoner is concerned. He can then leave the dock, and if he is not given a custodial sentence then away he goes. He might choose to leave very quickly, and I should not blame him. In general, the police will try to ensure that the fingerprints are taken before a prisoner leaves the precincts of the court, but on the few occasions where that is not possible because the man has left too quickly, the police should be entitled to ask him to come back and have his fingerprints taken. If he refuses to do that, he should be able to be arrested, as I have already said.
Your Lordships earlier agreed to an amendment, at my suggestion, to provide that in certain cases the police are not entitled to go and arrest for this purpose. I hope, therefore, that your Lordships will agree that this improved clause should now stand part of the Bill.
Lord Hooson: I wonder whether the noble Lord the Minister could deal with this question, since clearly we are all troubled by this provision. Have magistrates the right to say, on a conviction, "You will have your fingerprints taken and then you will be released"? In fact, they can postpone sentence by saying, "If an application is made, the fingerprints will be taken immediately". They can postpone sentence until the fingerprints are taken.
Lord Trefgarne: I do not believe that magistrates have the power to do that, but perhaps I can make further inquiries and, if I am wrong, let the noble Lord know.
Lord Hooson: I am sorry to prolong this, but Clause 58(6) reads:
"Any person's fingerprints may be taken without the appropriate consent if he has been convicted of a recordable offence".
Why does that not cover the situation? If there is that power under Clause 58(6) to obtain the fingerprints of anyone who has been convicted of a recordable offence, then why is this other power required?
Lord Trefgarne: Taking fingerprints is one thing but one has actually got to get hold of the chap first, and that is what we are talking about.
Lord Hutchinson of Lullington: But he is in court. He has been tried. It is not a question of his disappearing. Once he has been convicted, Clause 58(6) immediately comes into effect. There is no need for Clause 26. This is a matter of some importance.
Baroness Faithfull: Perhaps I may comment from my practical experience of what used to happen when I was working in court. The accused was informed of what would happen (a) if he was found innocent, and, (b), if he was found guilty. If he was found guilty then, with his solicitor present, he was told that he would be required to have his fingerprints taken.
I remember only one occasion when the person left without having his fingerprints taken, and that was a misunderstanding. There was really no difficulty. I think that we are making a tremenous haroosh over something that in practice is quite easy to administer. It is much more a case of the administration than the principles involved. What is important is that the person is told his rights before the case is heard. He must be told that if he is found guilty, he will be required to have his fingerprints taken. If the fingerprints are not taken directly afterwards, then he must be told that the police will have to call at his house later. In fact, that never happened in my experience because practically all of those concerned remain to have their fingerprints taken.
Lord Trefgarne: In order to assist the noble Lord, Lord Hutchinson, and myself for that matter, perhaps I may add that Clause 58(6) applies only at a police station and not at a magistrates' court. We are therefore left with the position where someone convicted of an offence may seek to leave a magistrates' court, quite legitimately, immediately following the conclusion of the proceedings in his case. It is that kind of circumstance which we seek to encompass by this measure.
Lord Donaldson of Kingsbridge: There is no difficulty whatsoever in following what was said by the noble Baroness, Lady Faithfull, but we are speaking of children, after all, and if the police want the child's fingerprints then they can ask the magistrates to say to the young person concerned, "Before you go, you will go downstairs with the police and have your fingerprints taken". What is the difficulty there? The difficulty arises through inefficiency. I do not see why the really damaging business of having a policeman knocking on the door at the home of a child's family should be excused by police inefficiency.
Lord Trefgarne: Knocking on the door is of course avoided if the person concerned responds to the invitation to return to have his fingerprints taken.
Baroness Macleod of Borve: On the other hand, surely it is almost impossible, I would have thought—perhaps those words are too strong—to convict anybody, for instance of robbery or of taking a car, without the fingerprints matching. One must take the fingerprints first.
Lord Donaldson of Kingsbridge: But it does not say that.
Lord Brougham and Vaux: The noble Lord opposite says, "It doesn't say so"—but if he will read Clause 58(3), he will see mention of,
"The fingerprints of a person detained at a police station".
Lord Wigoder: Perhaps the noble Lord the Minister will kindly explain so that I may follow his argument why he says that Clause 58(6) applies only to a police station.
Lord Trefgarne: My reading of Clause 58 relating to the taking of fingerprints at a police station is where it says in subsection (3):
"The fingerprints of a person detained at a police station may be taken without the appropriate consent"—
and it then goes on with the other paragraphs. I do not want to pretend to be the world's greatest interpreter of these matters but that is my reading of it. If I am mistaken then I will happily withdraw.
Lord Hutchinson of Lullington: If the Minister is mistaken then there is no need for the clause about which we are concerned, and so this is therefore of crucial importance. There is no need for this clause if Clause 58(6) means what it says. I see nothing about a police station in it although I have read it through three or four times.
Lord Gifford: The noble Lord has been good enough to say that I pointed out one matter in this long rigmarole which might be capable of improvement. In view of everything which has been said, I wonder whether the noble Lord will not recognise that the whole thing is capable of improvement and needs looking at again, and that the points raised should be returned to on Report, when the Minister can tell us what his further views are.
Lord Trefgarne: I have to confess that my interpretation of Clause 58 has been less crisp than it should have been, and perhaps I could therefore be permitted to consider this matter further and come back to it at another stage.
The Deputy Chairman of Committees: The Question is, That Amendment No. 85 be agreed to? As many as are of that opinion will say, "Content"? … To the contrary, "Not-Content"? … The "Contents" have it.
On Question, amendment agreed to.
Lord Elton: I think we are under a—
The Deputy Chairman of Committees: No; the amendment in front of the Committee is Amendment No. 85. If the noble Lord will recall, the Committee went off at a tangent to discuss whether the clause should stand part.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 85A:
Page 23, line 32, at beginning insert ("unreasonably").
The noble and learned Lord said: We are here dealing, as we have been dealing for a little while, with fingerprinting after conviction. The Bill provides for the arrest of a person at his home, or wherever he may be, and for him to be carted back to the police station for the mere purpose, not of further investigation of a crime or of an offence, but for bringing national police records up to date. Those are undoubtedly important, but I should have thought that they were not matters of urgency. Time is not of the essence of the matter, and it ought to be possible to make reasonable

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arrangements that the fingerprinting should be done by appointment to the mutual convenience of all concerned.
Since the first Bill the Government have agreed that the request should be made at a reasonable hour. What I submit is needed is a provision which excludes the possibility of arrest for someone who is willing to be co-operative but cannot drop everything suddenly to go to a police station when the police may arrive totally unannounced. It may be, for example, that the person concerned is attending a dangerously ill member of the household, or is involved with a child or a baby in circumstances where the child cannot be left unattended.
These amendments which I move—and it is convenient to deal with 85A and 85B together—will go towards preventing this power being used thoughtlessly or as a form of harassment to drag someone to the police station at what may be a particularly difficult time when there is no urgency for crime prevention or detection, or anything of the kind. I would expect most police forces to do just what is being asked of them, but this is to ensure that at any rate that will be the practice. It establishes a standard of how this matter of keeping the records should be dealt with, and I hope that these amendments will now be agreed by the noble Lord the Minister.
Lord Airedale: May I—
Lord Trefgarne: I wonder whether the noble Lord, Lord Airedale, would allow me to reply, because I am actually proposing to say that I very much accept the spirit of these amendments, and I am grateful to the noble and learned Lord for drawing this matter to our attention. We agree that a person should not be liable to summary arrest if he refuses perhaps for a very good reason such as a prior appointment, to go to police station at once, provided that he attends within a reasonable period thereafter. In practice, I am confident that the police would not apply the clause so inflexibly and would be able to come to a reasonable agreement with reasonably reliable people.
I accept that, even though some people can prove very difficult to get hold of once, let alone twice, if they are wanted for something, the matter of arrest should not be left entirely to the discretion of the police officer concerned. Therefore, I undertake to bring forward a Government amendment at a later stage to introduce a greater degree of flexibility into the clause so as to protect from immediate arrest the person who might
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not be able to comply immediately with the police request—something more akin to a period of grace as in the production of a driving licence might be preferable. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Elwyn-Jones: I thank the noble Lord for that most understanding—
Noble Lords: Order‡
Lord Elwyn-Jones: I am so sorry.
Lord Airedale: If the Minister is to look at this paragraph again, will he please consider my humble submission that it does not describe what the Government actually have in mind? The "reasonable hour" is attached to the constable's request and is not attached to the going to the police station.
If the constable rings up at two o'clock in the morning and says, "Will you please come round to the police station at ten o'clock this morning and have your fingerprints taken", he is making a request at an unreasonable hour. However, do not the Government have in mind that it is the going to the police station that must not happen at an unreasonably hour? Do they not have in mind the situation where the constable arrives at two o'clock in the morning and knocks up the chap concerned to tell him he must go round at once and have his fingerprints taken? I am suggesting that the "reasonable hour" is wrongly attached to the making of the request and ought to be attached to the going to the police station.
Lord Trefgarne: I shall certainly see that the noble Lord's point is taken into account.
Lord Elwyn-Jones: I am most grateful for that addition to my submission. Clearly one wants this to be done by amicable arrangement. It is a post-conviction state and I am quite sure that the Minister can come up with a sensible and amicable arrangement and not exasperate what is already a potentially difficult situation. In those circumstances, subject to the undertakings given by the Minister, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 85B not moved.]
9.33 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 85C:
Page 23, line 36, at end insert—
("() A person arrested under this section shall be taken to the police station nearest to the premises where he was arrested and shall have his fingerprints taken immediately upon his arrival at the police station and shall be released immediately thereafter.").
The noble and learned Lord said: This amendment is, I think, self-explanatory. It calls for a person arrested under these provisions to be taken to the nearest police station to the premises where he was arrested and shall have his fingerprints taken immediately upon his arrival at the police station and released immediately thereafter.
This is another easing of the situation to provide the maximum of agreement and the minimum of discord. I beg to move.
Lord Trefgarne: I do not dissent at all from the spirit of this amendment, which is that if a convicted person has to be arrested to have his fingerprints taken, this interference with his liberty should be kept to the absolute minimum. I hope to persuade your Lordships, however, both that no amendment to the Bill is necessary and that this particular amendment might on occasion simply prove impracticable.
Let us suppose that a person has been convicted of a recordable offence and escapes with a non-custodial penalty. The police ask him, at a reasonable hour, to provide his fingerprints. He refuses, and is arrested. The power of arrest conferred by Clause 26 is limited to the power to take him to a police station and there take his fingerprints. Neither the clause itself nor other provisions of the Bill, whether in Part III or Part IV, allow the police to detain him for any other purpose. It follows that, if the power of arrest is exercised—and, of course, it is worth stressing again that we would hope and expect persons to co-operate with police requests—it will be the arresting officer's duty to secure the fingerprints as soon as is reasonably practicable. This, I suggest, is already the clear meaning of the clause.
Turning to the amendment, your Lordships will readily see that it takes no account of what may or may not be reasonably practicable. It directs the officer to take the person to the nearest police station. But that police station may be closed, or fully stretched because it is dealing with the aftermath of an affray, or it may be not the best place to go to in the circumstances for any of a dozen reasons. It may be sensible for the person to be taken to some other station instead. This is, of course, not a licence to the police to take a person arrested under Clause 26 to any police station in the country: the provisions of Clause 29(1) will apply so that an "as soon as practicable" requirement will exist.
Again, with the best will in the world, there can be no guarantee that the arrested person can have his fingerprints taken immediately on arrival at the police station. The fingerprint equipment may, for example, be in use for some other person, and a certain limited wait may be inevitable. The amendment is cast in terms which I suggest are too inflexible. I hope that in
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the light of those difficulties, the noble and learned Lord will not seek to press the amendment.
Lord Elwyn-Jones: I venture to submit that the discussions that we have had in the past hour point to the need to review completely Clause 26 and the provisions regarding arrest without warrant for fingerprinting. I hope when that review takes place—and I think it is implicit in what the Minister said that the matter will be reviewed—the whole scope of this part of the Bill will be considered with the object of limiting discord and the difficulty between police and subject, and what is more important perhaps even the difficulty for the families of those who will be disturbed and affected by the knock at the door at night, very often for a post trial fingerprinting process. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85D and 85E not moved.]
On Question, Whether Clause 26, as amended, shall stand part of the Bill?
Lord Airedale: May I just make a short point about the definition of "recordable offence" in subsection (4) at the top of page 24? It says:
"In this Act 'recordable offence' means any offence to which regulations under this section apply".
It is the word "apply" which I do not understand. The power to make the regulations is in subsection (2), and it uses the expression:
"such offences as are specified in the regulations".
I do not understand why the definition does not follow the word "specified" and say:
"In this Act 'recordable offence' means any offence specified by the regulations under this section".
I do not know why the word "apply" comes in. I do not really know what it means.
Lord Hooson: Together with my noble friends, I gave notice that we would oppose the Question, That the clause shall stand part of the Bill? But in the light of the observations of the noble Lord, Lord Trefgarne, at the Dispatch Box in response to the noble and learned Lord, Lord Elwyn-Jones, it is clear that the Government are going to look at this provision in its entirety again—do I understand that to be correct?—and will be coming back at the Report stage having reconsidered the clause.
Lord Trefgarne: I have not gone so far as the noble Lord suggests. I gave certain assurances to the noble and learned Lord, Lord Elwyn-Jones, which did not encompass the whole provision. They were specific assurances. But I can say that we are willing to have another look at the clause, particularly to see whether we can make more explicit the principle that an arrested person must be fingerprinted and released as quickly as is practicable. On that basis, I hope that the noble Lord will allow the clause to stand part of the Bill.
Clause 26, as amended, agreed to.
Clause 27 [Information to be given on arrest]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 85F:
Page 24, line 15, at end insert—
("() As soon as practicable after an arrest the person arrested shall be provided with a written statement of the date and time of his arrest and the ground for the arrest.").
The noble Lord said: As the Committee will be well aware, very often the lapse of time between the date of a person's arrest and the date of trial will be very long indeed—perhaps six months, nine months or 12 months, and sometimes beyond that. At the trial exactly what was said as to the reason for arrest, and exactly what point in time the person's stay at the police station ceased to be voluntary and he was actually arrested, may be crucial issues. As it is part of good police practice to keep the closest documentary record of these details, it seems to us on these Benches that it would not be adding in any way to the burden of the police to make the provision that is suggested in this Amendment No. 85F part and parcel of Clause 27. The provision has this effect, as it says:
("() As soon as practicable after an arrest the person arrested shall be provided with a written statement of the date and time of his arrest and the ground for the arrest.").
The amount of labour added to police duties is in our submission very small indeed. The amount of time saved in the courts by way of argument, counter-argument and disputation as to exactly what happened in relation to those crucial facts can be very considerable. I beg to move.
Baroness Trumpington: I hope that the noble Lord, Lord Elystan-Morgan, will forgive me if I say that underlying this amendment I think there is a danger of assuming that more paperwork automatically means more or better safeguards. I do not accept that there is very little work involved in what he suggests. Certainly recording is a device which is resorted to frequently in the course of this Bill as a means of ensuring that the police are accountable for their actions and that there are clear avenues for the citizen to challenge those actions where powers have been inappropriately used. However, in the case of the present proposal, I have to tell the Committee that it would be unnecessary as well as impracticable.
Let us first take the normal situation in which an arrested person is taken to a police station. If he is then detained there, Clause 35(4) of the Bill and paragraph 3.9 of the code already require the custody officer to make a record of the grounds for detention in the custody record. Paragraph 2.6 requires all entries into the custody record to be timed. Under paragraph 2.4 of the code a copy of this record must be provided if requested within 12 months. The person will of course already have been informed of the grounds for arrest in accordance with Clause 27(3). These safeguards are wholly adequate. Quite frankly I see no reason why an additional written statement of the grounds for arrest is needed. This would really create additional, unnecessary work for the busy police.
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There are then the cases in which a person is released before his arrival at the police station under Clause 29(2), or the custody officer decides that there are insufficient grounds on which to detain him. In these cases there will be no custody record. However, the person will have been informed orally of the grounds for arrest under Clause 27 and the arresting officer will have to make an entry in his pocket book of the circumstances of the arrest and record the release under Clause 29(3). If the person subsequently wishes to make a complaint or institute proceedings, then the notebook will be available to the investigating officer or subject to production in court if needed—it is these last two words that are the key.
There is no need at all to require officers to duplicate their pocket book entries at the time, just on the off chance that they might subsequently be wanted. I therefore hope the noble Lord will withdraw his amendment.
Lord Elystan-Morgan: I am mildly disappointed that the noble Baroness has not, with her usual charming good sense and balance, been able to accept the content of this amendment. In my submission, it seems abundantly clear from what the noble Baroness has said that there will be occasion, in each case, for the information that is referred to in the amendment, that is a statement of the grounds for arrest, a statement of the date of arrest and the time of arrest, to be entered in some document or another. It seems to me utterly unbelievable that those entries would not be made somewhere. All that it necessitates, surely, is that a carbon copy be given to the defendant. Such a copy having been given to the defendant and a copy thereof retained by the police officer, how can there be an argument when the matter is raised in issue at the trial, perhaps over a year later, as to exactly what happened in relation to those three matters?
I hope very much that in the coming days the Government will think again about this matter. It really is a plea for a very simple entry that will not substantially add to the very considerable amount of documentation that this Bill makes incumbent upon police officers. At the same time, it would make the administration of justice very much simpler so far as those issues are concerned. In the circumstances, since the hour is late and the population of the Committee not that considerable, we do not seek to press the matter to a Division. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Plant Lord Plant moved Amendment No. 86:
Page 24, line 16, leave out subsection (5) and insert—
("(5) The above subsections shall not have effect where the person to be arrested or some other person by his conduct makes it impossible for the constable to so inform him.").
The noble Lord said: This clause appears to be a statement of the principles laid down by the courts in the Christie v. Leachinsky case, previously mentioned by the noble Lord, Lord Hooson. In my view, the Bill is in error in attempting to transpose a lengthy judgment into such a brief clause. I am aware of the considerable anxiety about this clause expressed to me by experienced police officers. Very often, arrests can be interrupted by the violent behaviour of the person

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being arrested. It is a common occurrence in some areas for arrests by the police to be interfered with by other people in the vicinity.
Clause 27 appears to me to have been based on the assumption that all arrests are conducted in an atmosphere of calm enabling the due legal procedures to be complied with, without hindrance from anyone. This clause extends the law as it is now and appears to be saying that an arrest is not a lawful arrest until the person has been told the reason for it. The current law empowers the police to rearrest persons who have escaped from lawful custody and also places upon bystanders both responsibilities to assist the police and prohibitions against interference with an arrest. A police officer needs to be sure that an arrest is lawful from the time that he decides to use his legal powers of arrest and simply tells a person that he is being arrested. If, for example, an officer tells a person that he is being arrested and is then immediately assaulted, resulting in the escape of the prisoner, the question arises, "Has the officer been assaulted in the execution of his duty or not?" Apparently, if the officer was assaulted and the prisoner escaped before the officer had the opportunity to inform him of the reasons for his arrest, the arrest is not lawful.
I appreciate that Clause 27(1) uses the words,
"as soon as practicable after his arrest".
My concern is that this could be rendered ineffective by subsection (3). I believe that the clause should be redrafted in order to cover the question of escape from lawful custody before the arresting officer has had the opportunity to inform the prisoner of the grounds for arrest and also the question of an assault on a police officer acting in the execution of his duty in such circumstances. An important provision of Christie v. Leachinsky has been omitted from the clause. This could be remedied by a new subsection (5).
In another place, the Government acknowledged the strength of the argument and amended the clause then under consideration by inserting the present subsection (5). This has only half closed the door. The High Court recognised many years ago the scope of the problem by clearly stating the words in this amendment in its judgment. The clause as it now stands is a recipe for delicate and protracted legal argument. The police service finds this disappointing. The primary purpose of the Bill is to clarify and simplify police powers. In this instance it palpably fails to do so.
I recognise the necessity for safeguards for the public, but I seek equal safeguards for police officers; and that can be understood readily. Because of High Court cases where people have been discharged on a technicality, it is better that subsection (5) be redrawn in the words of my amendment, which says:
"The above subsections shall not have effect where the person to be arrested or some other person by his conduct makes it impossible for the constable to so inform him".
I beg to move.
Lord Denning: My noble friend Lord Plant is quite right. Under the case of Christie v. Leachinsky, no arrest is lawful unless the accused is told as soon as practicable of the grounds for the arrest, so that he can, if need be, take steps to get himself released. That was
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said in 1943, in an appeal case. I should have thought that the clause as it stands sufficiently states the legal requirements, and that really there is no need for my noble friend's amendment. If his conduct made it impossible for the constable to inform him, the court would hold that it was not practicable. Although I agree with the whole sentiment of what my noble friend has said, I think it is unnecessary to have this amendment to make it clearer.
Lord Donaldson of Kingsbridge: With great deference to the noble and learned Lord, Lord Denning, I feel that so much of this Bill has not been terribly helpful to the police that, when they want something which is as clearly right as is this amendment, we should support it. I am very happy to do so.
9.52 p.m.
Baroness Trumpington: This clause requires an arrested person to be informed of the fact of, and grounds for, arrest as soon as practicable after the arrest. The only exception to this rule is covered by subsection (5), which states that this information need not be given if it is not possible because the prisoner escapes before this can be done. If this rather odd subsection were not in the Bill, the police officer could be accused of a breach of conduct for not having fulfilled his duty. This amendment would replace the subsection by a more general reference to the conduct of the arrested person or others making impossible the giving of the information.
I do not see the need for such a provision. One can envisage situations where the giving of this information has, in the circumstances, to be delayed. As the noble Lord, Lord Plant, has already mentioned, an obvious example concerns a person who violently resists arrest. The police officer cannot be expected to give him information at the same time as he is struggling with him. But the clause already allows for this. Subsections (1) and (3) state quite clearly that the information only has to be given as soon as is practicable after arrest. In the circumstances I have described, it would not be practicable to give the information at the time of arrest.
However, I see no reason why it should not be given later, when the man has been subdued or has quietened down; that is, when it is practicable. But the effect of the amendment proposed by the noble Lord, Lord Plant, would be to remove this right entirely if the information cannot be given immediately following arrest. That cannot be right. The only circumstances which should relieve the constable entirely of the obligation to provide this information is when the person is no longer available to receive the information; that is, when he has escaped. That is what subsection (5) provides, and I hope that the noble Lord. Lord Plant, will withdraw his amendment. At the same time, may I thank the noble and learned Lord, Lord Denning, for dealing with the case of Christie v. Leachinsky, which I should not have had a clue how to answer.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
[Amendment No. 87 not moved.]
Clause 28 [Voluntary attendance at police station etc.]:
[Amendment No. 87A not moved.]
The Deputy Chairman of Committees (Earl Cathcart): In calling Amendment No. 88, I should inform your Lordships that if it is agreed to I cannot call Amendments Nos. 89, 89A or 89B.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 88:
Page 24, line 27, leave out paragraphs (a) and (b) and insert—("he shall be informed at once that he is—

(a) entitled to leave at will unless he is placed under arrest;

(b) under no obligation to answer any questions other than to give his name and address;

(c) entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told that he is at the said police station or other place;

(d) entitled, if he so requests, to consult a solicitor privately at any time;

(e) under arrest if a decision is taken by a constable to prevent him leaving at will;

and in the case of the matters mentioned in paragraphs (a), (b), (c) and (d) above he shall be so informed both orally and in the form of a written notice signed by the constable and endorsed with the date and time when it is given to him.").
The noble Lord said: Some amendments are more important than others, and I submit to the Committee that this is an important amendment. Your Lordships will see that the amendment is to Clause 28. The moment at which it is suggested that this information should be given to the person concerned is the moment when a person for the first time gets into the police station.
Lord Elton: Will the noble Lord give way? I wonder whether the noble Lord could help your Lordships and me. As I understand it, the agreed list of groupings ran from Amendment No. 87A to Amendment Nos. 88, 88A, 89, 89A, 89B, 89C, and 89E. The first of those was not moved. It would be helpful if we knew whether the other amendments are going to be spoken to, which is what we are at present expecting.
Lord Mishcon: Can I help by saying that so far as I am concerned I shall be speaking to Amendment No. 89A. I shall not be moving Amendment No. 89B. I shall be speaking to Amendment No. 89C and I will also be speaking to 89E.
Amendment No. 89A: Page 24, line 29, at end insert ("and shall be so informed in writing").
Amendment No. 89C: Page 24, line 32, at end insert—
("and he shall be treated not less favourably than a person detained pursuant to Part IV of this Act.").
Amendment No. 89E: After Clause 28, insert the following new Clause—
("Detention in police building.
. Where a person is present in a part of a police building not open to the public, he shall be deemed to have been arrested and kept in police detention after a period of 6 hours from his arrival at the police station and the provisions of Part IV of this Act shall apply accordingly.").
Lord Hutchinson of Lullington: I was saying that the very first moment when a member of the public enters a police station is a crucial moment. He may enter the police station as a result of an arrest which comes earlier (and that is dealt with under Amendment No. 87A) or he may enter a police station because he
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is there—to use the hackneyed phrase—to assist the police with their inquiries. But at that stage he goes from outside into the precincts of a police station. I would suggest that that moment is the most crucial moment. At that moment it is vital that a person should be told of his rights.
Once he is in the police station—and this is pointed out in the Bill—if the police officer in the police station decides that he is not going to be allowed to leave the station, then he is under an obligation to tell that person that that is the situation and at that moment he then becomes under detention and his freedom is at an end. But up to that moment he is in the police station voluntarily and he is, on the face of it, assisting the police with their inquiries.
The code at the moment deals with this situation at page 2 paragraph 1(b) where it says:
"Although certain sections of this code apply specifically to persons detained at police stations, those there voluntarily to assist with an investigation should be treated with no less consideration and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station".
So that is dealt with in the code of practice. It is also dealt with in the code of practice at page 18, where it says at paragraph 11.4:
"If a person is not under arrest when a caution is given, the officer concerned should say so. If he is at a police station, the officer should also tell him that he is free to leave if he wishes and remind him that he may obtain legal advice if he wishes".
So at the moment those matters are in the code of practice.
However, the most crucial principle which there is in relation to the freedom of the individual, and the principle on which the whole of our criminal law is based, is the right of silence. This was looked at by the Royal Commission yet again and the Royal Commission decided that it was right and proper that the right of silence should be respected and that previous suggestions—particularly in the Eleventh Report of the Criminal Law Revision Committee —that in certain circumstances it should in some way be curtailed, should not be followed. So the right of silence is still enshrined in our criminal law.
When a person enters a police station in this country he has only one right because we have no written constitution and we have no fifth or fourth amendments, or whatever they may be, and that right is the right to silence—the right to be protected from self-incrimination.
In my submission, it is absolutely crucial that on entering a police station one should be told of this fundamental right. The curious thing is that, although under this particular Bill one may be told of other rights when one enters a police station—for instance, under Clause 27(3) one is told that the person arrested is to be informed of the ground for the arrest (we have just dealt with this) at the time of, or as soon as is practicable after, the arrest—no provision is made in the Bill for informing the person in the police station of a far more important right, the right to silence.
Therefore, we suggest in the amendment that immediately a person enters a police station he shall be informed at once of those matters to which I have already referred as being in the code. I suggest that they should not be in the code; they should be enshrined in the statute, because there is no more important right.

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Therefore, a person should be informed that he is entitled to leave at will unless he is placed under arrest; that he is under no obligation to answer any questions other than to give him his name and address; that he is entitled to have a friend or relative informed if he wishes; that he is entitled to consult a solicitor privately if he wishes. He is also entitled to be told that he is under arrest if a decision is taken by a constable to prevent him leaving at will. If your Lordships think it right and proper that this amendment should be passed, all those matters would be enshrined in the Bill.
I would suggest that there can be no reason for not telling a person what are his rights if he has them. As I ventured to point out at Second Reading, for some reason, although there is this absolutely basic and fundamental right, nowhere in the Bill is that right spelt out. I suggest that this is the time to spell it out. I beg to move this amendment on that basis.
Lord Mishcon: It may be for the convenience of the Committee and, I very much trust, for the convenience of the noble Lord the Minister, if at this stage I speak to Amendments Nos. 89A, 89C and 89E. I have already said that the rest of the amendments in this group, which have my name and those of my noble friends attached to them, will not be separately moved.
I am so glad that the noble and learned Lord, Lord Denning, is in his place at this moment. It would from my point of view be very reassuring to hear him confirm, if he wishes to do so, my own reference to the law as it now stands and the law as it will be if this Bill is passed and if Clause 28 stands part of the Bill without amendment.
I say at once that I support everything that the noble Lord, Lord Hutchinson, has said. We shall not be moving our own separate amendments, but supporting his.
There is a phrase which has grown up in police bulletins and news items which is unknown to the law. That phrase is, "Mr. X is helping the police with their inquiries". There is no right of detention known to the law at present for the purposes of inquiries being made. Indeed in the case of R. v. Lemsatef, a 1977 case, Lord Justice Lawton stressed that it must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting help with their inquiries.
The draft code of practice, which has been referred to, deals with the treatment and questioning of suspects. It sets out the rules which apply to these persons and envisages that some of them will be cautioned. That means that, presumably, there will be three categories of suspects, as I call them. There will be the person who is detained; there will be the volunteer and there will be the cautioned volunteer. It is at this stage that I say—I am authorised to do so—that the Law Society is extremely apprehensive about the clause as it at present stands. The Law Society is behind the amendment to which I am speaking.
The situation is that the Law Society and those who think similarly as criminal practitioners in law would like to see the end of the category of those who "help
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the police with their inquiries". But it looks as though this Bill will, in the end, contain a right of detention so that inquiries may be made. I am looking at the position on that basis. I am saying to the Committee that upon that basis—bearing in mind the present state of the law as it has been for a very long time—if we are introducing this right into our law, we have to do so with the utmost care.
There are three provisions which in our view ought to be inserted. The first is—this has been spoken to already—that those who attend voluntarily at a police station to help the police with their inquiries should be informed immediately upon arrival and in writing of their right to leave at will unless they are placed under arrest. That must be a right that is clearly spelt out.
There is not the slightest doubt that people who find themselves in this position find themselves in a position, very often, not only of acute embarrassment (which we should not be so concerned about) but, where they think that they have to say that they are properly deprived of their right to leave, they have to put up with conditions where their family at home may be extremely worried; and the result of that is that very often it is not the truth that comes out but the fearful reaction of people who want to get out of this atmosphere as fast as they possibly can. That is what we have to be careful about if we are giving this right.
So I turn to the second provision which must be inserted. The declaration must be there in the statute, and not just in a draft code, that a person who attends voluntarily, whether cautioned or not, shall be treated "not less favourably"—and that is what the draft code says—than a detained person. And when we get to Clause 56 of the Bill—I am not going to anticipate it, but it is relevant to say it now—it should be clearly said in that clause that they are entitled to legal advice.
The third and last thing to which I need to refer your Lordships by way of a provision is this. A time limit must be set on the presence of these people without their being arrested. If they are still helping the police with their inquiries six hours after arrival at the police station, they are in need of the protection of the detention provisions. They should be deemed to have been arrested and detained after that period of time.
To distinguish those who are, in fact, suspected of crime from those who attend police stations for other purposes, we would propose that a person present for six hours in a part of the police station not open to the public shall be deemed to have been arrested and taken to the police station. That should be clearly put into this Bill; and the detention provisions will then apply accordingly. I hope that your Lordships will have seen that I have spoken now to Amendment No. 89A, and given my reasons for it; to 89C, and given my reasons for it; and, lastly, I have just spoken to 89E and given my reasons for that.
Lord Hooson: I speak to Amendment No. 88, and I agree entirely with the noble Lord, Lord Hutchinson of Lullington, that this is one of the most important amendments to this Bill. In our criminal law we are concerned with the eventual aim of convicting the guilty and protecting the innocent. We are all agreed about that aim. But we do it in a civilised way in a civilised society. It seems to me that Amendment

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No. 88A contains four rights which everybody would agree are the rights of any person who is asked to attend at a police station. That is, he is entitled to leave at will unless he is placed under arrest; he has no obligation to answer any questions; he is entitled to have somebody know where he is; and he is entitled, if he so requests, to consult a solicitor privately at any time. We are all agreed that these are the rights of a person who is asked to go to a police station. Why on earth are we afraid that he should be informed of those rights? This question seems to me to be elemental.
On Second Reading I related the story of what happened to a friend of mine a man of totally good character against whom nothing could be said. He was taken to a police station and interrogated on the suspicion that an offence had been committed—an offence which had never been committed at all, and of which he was completely cleared the following day. When he related his experiences, I said to him, "Did you know what your rights were?" He said, "It is all very well for you lawyers to say this, but when you are in that kind of atmosphere—and I thought that my dearest had died, as she actually had—your reactions are very different".
Also, as anybody who has any practical experience knows, whether through sitting on the bench or as an advocate in our criminal trials, so much of the argybargy in trials is concerned with what happened in the interviews before the actual arrest was made and the charge was brought. That is, there is so much argument about the verbals—whether the man was cautioned or not, whether he was told what his rights were—in this amendment there is a provision for the matters mentioned in paragraphs (a), (b), (c) and (d), which are the fundamental rights that are referred to; he shall be informed both orally and in the form of a written notice signed by the constable and endorsed with the date and time when it is given to him. That would mean there would be certainty as to what had happened in the police station.
If a man is a sophisticated criminal or an habitual criminal, he knows what his rights are, he does not have to be told, it is surplusage to go through them with him. But what is important is that the innocent person knows, that the person who is not accustomed to going into a police station knows, what his or her rights are.
Now it is agreed, as I understand it, that many of these matters should be included in the code but why should they not be enshrined in an Act of Parliament? We have always prided ourselves in this country on the basic rights of silence, that a man should not incriminate himself. Many criticisms have been made from time to time, but every investigation has resulted in the end in people coming down in favour of the maintenance of that right.
Let me remind your Lordships of the importance of this matter. When a person is, to use the euphemism, "helping the police with inquiries" and he is in the police station, that does not count. The time that he spends there may be two or three days until he is actually arrested, and it is only then, of course, that the time begins to run against him for detention. That is when the 24 hours begins. So that the practical effect
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of this amendment is very, very important. I hope that your Lordships will give all possible support to this amendment.
Lord Denning: I should like to support these amendments in one or other form. We all know the phrase, "he or she is helping the police with their inquiries". We all jump to the conclusion at once, "Oh, the police have found the man", or "They've got him". That is the inference which we draw from the statement that A or B is helping the police with their inquiries.
The right way to make inquiries, if it is to be really a voluntary statement, is to see the man in his house or his private room or something of that kind and make the inquiries of him there. Then it is voluntary enough. But to say to him, "Are you willing to come along to the police station?" or "Will you come along to the police station?", is halfway to making an arrest. When he has got to the police station, the ordinary person can half feel he is under arrest, even though the police are said to be making inquiries. Then is the time to make it quite clear to him that he is there voluntarily and that he can leave at that moment if he likes. This virtually means in many cases that he is under suspicion. In those circumstances he ought to be told, "Well, you can have a solicitor, if you like; you need not say anything", and so forth. In other words, give him all the protection which should surround a man who is under suspicion, because that is why he is there.
A clause like this put into the statute will ensure the protection of the individual. When he is there for making inquiries, he really ought not to be treated as a suspected person. I would support these amendments in one or other form.
10.20 p.m.
Lord Elton: It will not be possible for me to answer the speeches as briefly as I might have wished, because noble Lords attach great importance to them and they have spoken to them in some detail. As it is now drafted, Clause 28 makes it clear that anybody voluntarily attending a police station is free to leave at any time unless he is placed under arrest. To this extent it is simply declaratory of the present law; but the clause goes further than that by requiring the police to inform the person that he is under arrest, not just if he tries to leave and is prevented from doing so, but as soon as it is decided that he would be prevented if he did try. So there is no chance of his being in detention in ignorance, as it were.
All these amendments seek to expand the simple provisions of the clause by requiring the police to provide persons voluntarily attending a police station with certain information. No. 88 would require such a person to be informed both orally and in writing, of his right to leave at will unless placed under arrest, that he is not obliged to answer any questions other than to give his name and address, and that he is entitled to have a friend informed of his whereabouts and that he is entitled to consult a solicitor privately at any time.
In addition, No. 88 would impose an enormous administrative burden on the police. The first half of the starred amendments tabled by the noble and learned Lord, Lord Elwyn-Jones, repeat ideas put

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forward by the non-starred amendments I have mentioned. A great many people attend police stations voluntarily for all kinds of reasons. They include, for example, victims of burglary attending to identify property and victims of assault attending to identify a suspect or to provide a statement. I think the noble Lord, Lord Mishcon, has picked up the point that I have referred to two amendments he did not speak to, but it was only en passant.
As I say, people of many sorts attend police stations voluntarily for many reasons. If these amendments are accepted, the first thing that must happen would be that a policeman would inform them, orally and in writing, that they were entitled to leave at will unless placed under arrest. Is that the way to treat a shaken victim or a hesitating and irresolute witness to a crime? Such people need encouragement to come to the police, and this is particularly likely to be so in the case of victims of rape and sexual assault. It is easy to see how a statement of the right to leave as soon as they arrived could produce entirely the wrong impression.
Similarly, the large volume of paper that would be produced by the voluntary attendance forms would be entirely disproportionate to any good it could achieve. Such a procedure would be rather affronting, I think, and extremely upsetting to victims of crime who actually come to assist the police, to be told at once: "Very well, my dear; of course you can go away again if you like. We will not stop you. You have a right to see your solicitor and get advice. You are not under arrest, but if we do arrest you then you cannot leave".
I agree it is very important indeed that any person who is at a police station voluntarily as a suspect should be fully aware of his position and of his right to leave. There we are on closer ground. That is to ensure that he is there voluntarily and not under a disguised compulsion. We have now amended the draft detention code of practice to strengthen precisely this safeguard, and the noble Lord, Lord Hutchinson of Lullington, drew attention to Section 11 of the draft. I will not repeat what it requires: all those requirements in paragraph 11.4 and all those in 3.8.
However, I should emphasise that the code requires the caution to be given as soon as there are grounds to believe that a person has committed an offence. You do not even have to wait for them to be reasonable grounds. If there are any grounds for thinking that the person has committed an offence, then he must be told so and the person must be cautioned and must also be told—exactly what the noble Lords want in their amendment—that he is free to leave the police station if he wishes as soon as he is a suspect in the eyes of the police. The right to leave is a most fundamental right. As I have explained already, it is fully dealt with in the code of practice, and I do not really see the need for the person to be handed a little card stating this right, together with the date, the time, and the name of the constable concerned, as I think the noble Lord, Lord Donaldson, was going to suggest.
I am in a difficulty in that I do not want to refer to the amendments that were not moved, but I do want to be certain of referring to the amendments that were moved. The noble Lord, Lord Donaldson, has proposed paragraphs (c) and (d) and I just wonder
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whether that is the amendment to which the noble Lord, Lord Hutchinson of Lullington, spoke. Indeed it is, but it appeared under the name of the noble Lord, Lord Donaldson. So I am speaking to one that has been moved. May I comment, therefore, on the other provisions contained in that amendment?
Under the proposed paragraphs (c) and (d), the person would be informed of his right to have someone informed of his whereabouts and to consult privately with a solicitor. Section 11 of the draft codes requires a person voluntarily attending a police station to be reminded that he may obtain legal advice if he is cautioned. The same point is made in paragraph 3.8 of the code and paragraph 6.1 states,
"Any person at a police station"—
that means whether he is detained or is attending voluntarily—
"may consult and communicate privately, whether in person, in writing or on the telephone, with a solicitor of his own choice".
Paragraph 6.2 makes it clear that this right may only be suspended in the cases set out in Annex B on page 31 of the booklet. Your Lordships will note that it does not permit suspension unless the person is in detention in connection with a serious arrestable offence. Finally, the note for guidance at the bottom of page 2 states that those voluntarily attending a police station enjoy an absolute right to obtain legal advice or to communicate with anyone outside the police station.
Paragraph (b) surprised me somewhat. It implies that a person who is not under arrest is under an obligation to provide his name and address to the police. I appreciate that the clause refers to persons voluntarily attending a police station who might be expected to have no objection to providing their name and address. However, they are certainly under no obligation to provide a name and address if they do not wish to do so. We object to the use of the phrase "not obliged to answer questions".
It seems to me that the draft code and the Bill together provide the reassurances that your Lordships want, and that your Lordships have not distinguished between those people who really must not be greeted either with a large amount of bureaucratic paperwork, or with the suggestion that they must feel quite free to leave because they have not yet been arrested, and those seem to me to be the central considerations regarding these amendments.
Lord Donaldson of Kingsbridge: On the last point, it is worth noting that Clause 28 begins,
"Where for the purposes of assisting with an investigation".
Those are the people that we are talking about. We are not talking about people who are coming to say that they have had an accident or have been raped. We are talking about people who are there to assist in investigations, which does not go the whole way to meet the noble Lord but goes some way.
Lord Elton: I entirely accept that. It applies to the people about whom we are most concerned, who are the victims, and to the witnesses who may be rather frightened at turning up at a police station. To be greeted with the reassurance that they have not yet been arrested, so they will not be kept there, is not the best way to treat them.
Lord Mishcon: May I ask the noble Lord the Minister why he concentrates repeatedly on the draft code of practice in regard to matters that are essential to the liberty of the subject, instead of having them in an Act of Parliament? Why is the draft code of practice the holy place in which this should be writ, instead of what should be the Bible itself, which is the Act of Parliament?
While I am on my feet, may I ask the noble Lord—not that I want to extend these proceedings at all—why, especially as they are amendments approved by the Law Society, he has not dealt with Amendments Nos. 89A, 89C and 89E? I am sure that he will do it very briefly, but I know that he will want in courtesy to answer them.
Lord Elton: As to the noble Lord's first supplementary question, it seems to us that the Act of Parliament should state the law and that it should be explained and its implementation should be regulated by the code of conduct, which I suspect may be more freely available and much easier to understand for people interested than the Act of Parliament itself.
As to the other matter, I regret that I stopped speaking at the point where I thought your Lordships would be more interested in hearing somebody else's voice without realising that I had not picked up the noble Lord's point regarding the Law Society. The noble Lord drew attention to the Law Society's concern that the Bill and the code together distinguished three categories of person in police stations: the detained person, the cautioned volunteer and the plain volunteer. This, he suggests, is a return to the concept of persons detained to help the police with their inquiries, which the court criticised in the case of Lemsatef and which your Lordships and the papers have echoed ever since. No such concept is entailed. The Bill recognises only one category of detention: those who have been arrested on suspicion of an offence, to whom the Bill attaches a network of safeguards. These the code underpins. Persons are either detained in the right of arrest and so informed at the police station or they are not so informed because they are not so detained.
Lord Wigoder: May I ask the Minister to be kind enough to summarise his argument by a simple answer to two questions which I want to put to him. Let us leave entirely on one side for the moment the question of whether these matters should be contained in the code of practice or in the statute, because that is a separate argument. May I ask the Minister to look at the rights set out in paragraphs (a), (b), (c), (d) and (e) of Amendment No. 88 and to say whether, with the possible exception of the words "other than to give his name and address" in paragraph (b), he agrees that those are the rights which a person possesses if he is voluntarily at a police station.
Lord Elton: Yes.
Lord Wigoder: Secondly, will the Minister be kind enough to tell me which of those rights he agrees that, in one form or another, a person voluntarily at a police station should be informed of and which he says that person should not be informed of?
Lord Elton: The noble Lord asks a shrewd question. It is clearly right that a person detained in a police station should be aware of his rights. The noble Lord will be aware, as he has been prompted by noble friends or noble allies, of the extent to which the police are required both to protect those rights and to inform the person in the police station of those rights.
It is difficult to summarise what I have already said. It seems to me that the noble Lord's amendments do not distinguish between those people who are in a police station helping the police with their inquiries because they are victims and those who are helping the police with their inquiries because they may become suspects. But since they immediately trigger the information he wants as soon as they become suspects, the noble Lord is concerned only with those who are not victims and who are helping the police with their inquiries as suspects. The answer to the noble Lord's question, therefore, rests in Hansard.
Lord Hutchinson of Lullington: I think all noble Lords who know the noble Lord the Minister will surely agree that in response to this amendment he has been at his most disappointing. I say that with the greatest possible respect. We have heard the noble and learned Lord, Lord Denning, with all his experience over all these years, say in terms that these amendments enshrine the protection of the individual in this country when that person enters a police station. That is the situation. The noble Lord the Minister has been saying that this procedure would embarrass people, and that it would frighten people who are in the police station and not under caution but there simply to help the police. But in the Minister's own code, at page 2, it states in paragraph 1(b):
"Those who are there voluntarily to assist with an investigation should be treated with no less consideration and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station".
It says that in the code of practice. There is nothing there about how frightened or upset people would be to be told that they have these rights.
Lord Elton: Will the noble Lord give way? The difference between the code of practice and the Bill—and he has brought it to the forefront of the argument—is surely this: if it is in the Bill that somebody must be told then—willy-nilly—they must be told. But if it is in the code of practice that they have these rights, then it is up to the perceptive police constable or the station sergeant to decide whether the old lady who has just been "mugged" ought to be told upon reception that she has a right to leave the police station if she has not been arrested. It is a matter of discretion. The amendment on the Marshalled List does not give that discretion, and I think it is mistaken.
Lord Hutchinson of Lullington: The simple fact is that people should have these rights—and one can see no reason whatsoever for not enshrining them, as the noble and learned Lord, Lord Denning, has suggested, in this Bill. This is one of the most crucial points in the whole Bill and having regard to the observations which have been made by noble Lords, I will test the views of the Committee.
10.37 p.m.
On Question, Whether the said amendment (No. 88) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 35.

DIVISION NO. 3

CONTENTS

Airedale, L.

Hutchinson of Lullington, L.

Ardwick, L.

John-Mackie, L.

Attlee, E.

Kilmarnock, L.

Beaumont of Whitley, L.

Masham of Ilton, B.

Beloff, L.

Mishcon, L.

David, B. [Teller.]

Monson, L.

Dean of Beswick, L.

Pitt of Hampstead, L.

Denning, L.

Plant, L.

Diamond, L.

Ponsonby of Shulbrede, L.

Donaldson of Kingsbridge, L.

Renton, L.

Elwyn-Jones, L.

Stewart of Alvechurch, B.

Elystan-Morgan, L.

Stewart of Fulham, L.

Ewart-Biggs, B.

Stoddart of Swindon, L.

Foot, L.

Tordoff, L.

Gifford, L.

Underhill, L.

Graham of Edmonton, L.

Wigoder, L. [Teller.]

Hooson, L.

NOT-CONTENTS

Airey of Abingdon, B.

Gardner of Parkes, B.

Avon, E.

Glenarthur, L.

Bellwin, L.

Gray, L.

Belstead, L.

Hornsby-Smith, B.

Brougham and Vaux, L.

Long, V.

Caithness, E.

Lucas of Chilworth, L.

Cameron of Lochbroom, L.

Macleod of Borve, B.

Campbell of Alloway, L.

Margadale, L.

Cathcart, E.

Marshall of Leeds, L.

Cockfield, L.

Mottistone, L.

Coleraine, L.

Portland, D.

Cork and Orrery, E.

Skelmersdale, L.

Craigmyle, L.

Swinton, E. [Teller.]

Crathorne, L.

Trefgarne, L.

Denham, L. [Teller.]

Trumpington, B.

Eccles, V.

Vaux of Harrowden, L.

Elton, L.

Whitelaw, V.

Ferrier, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 88A, 89, 89A, 89B, 89C not moved.]
10.44 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 89D:
Page 24, line 32, at end insert—
(" (2)(a) where a child or young person voluntarily attends any such place as mentioned in subsection (1) above for the purpose of assisting with an investigation, such persons as are required to be informed under section 55 of this Act, shall be informed of his whereabouts together with the reason for his attendance at that place, without delay.
(b) any procedure involving the participation of a child or young person, whether as a suspect or witness, shall take place only in the presence of the appropriate adult mentioned in paragraph (a) above.")
The noble Baroness said: This amendment is particularly in the interests of young people and their parents. Everything that has been said on previous amendments applies even more, but I should like briefly to remind your Lordships that the code of practice includes the safegard that, save in certain circumstances, children and young people under the
508
age of 17, whether suspected of a crime or not, shall be interviewed only in the presence of a parent or guardian. In the case of a child or young person in the care of local authorities a representative of that authority should be present, or, in their absence, some other responsible adult who is not a police officer. Clearly this requirement is shown by the words,
"whether suspected of a crime or not".
and should include circumstancss in which a child or young person is being questioned while assisting with an investigation.
The purpose of the amendment is to ensure that the duty of the police to inform the parent or guardian, and so on, is immediate, and, secondly, that the safeguard referred to in the code of practice is brought into the Bill itself—a request which was made in the previous amendments. The amendment is also to ensure that the child or young person's attendance is truly voluntary and that anything the child or young person says, any statement that they make, should be in the presence of an appropriate adult.
I believe that the amendment will find favour with the Government because surely it is part of this growing ethos that parents should be involved and responsible for their children and that they have a right to know where their children are. I think the Minister will agree that a considerable length of time can be spent helping police with their inquiries. During that time a parent might undergo very great anxiety. Therefore, this amendment is very much in the line of trying to keep parents involved with their children and to feel responsible for their children.
There is no doubt that parents do worry a lot. I know that the Children's Legal Centre receives innumerable calls from parents who are anxious as to where their children are. The amendment would ensure that the children should be safeguarded and that their parents should be absolved of that worry. I beg to move.
Lord Donaldson of Kingsbridge: From these Benches we fully support the amendment. I can see no possible reason why it should not be accepted. I think I need say no more.
Lord Elton: I must start by thanking the noble Baroness for putting her finger on a gap that has crept unintentionally into the protection which the Bill and its associated codes of practice provide. When my right honourable friend the Minister of State replied to a similar amendment in Committee in another place he was able to draw attention to the codes of practice on the detention, treatment and questioning of suspects by the police. He pointed to provisions ensuring that the questioning of juveniles should not take place in the absence of an adult except in an emergency, whether or not the youngster is suspected of a crime.
I fear that in the revision of the code which has taken place since the Bill was considered in another place, and which has been generally welcomed, this extension of the safeguard to juveniles not suspected of crime has been left out. That was not intended and I can assure the Committee that it will be put back in the next revision.

509
In the case of the draft identification code our revising zeal has not had that result. Paragraph 1.8 provides for the presence of parents in the case of a juvenile who attends a police station either to identify a suspect on a parade or to be identified himself, which meets the second part of the amendment. In either case the parent must obviously have been informed in order to be there.
The noble Baroness has argued for the inclusion of those provisions in the Bill rather than the codes of practice. But the point is that the codes are able to take account of the fact that there may be some instances in which the parents are not available to attend, or, indeed, to take an extreme example, in which their presence could even be undesirable. Take, for example, a case in which a child complained to the police about sexual assaults on him by a parent; the police would under the amendment at once have to inform the parents, although it might be vital for the interview with the child to remain confidential. The codes are capable of taking account of such circumstances, whereas the amendment would fetter the police too tightly to allow for such contingencies, however rare.
I hope therefore that the noble Baroness, subject to my undertaking on the first leg of her amendment, will be content to withdraw it.
Baroness Ewart-Biggs: I am very grateful to the Minister for being so responsive to the first part of the amendment, but I am rather disappointed about his response to the second part. As I say, we should like to see that provision enshrined in the statute. It would make one feel very much safer about the matter.
I do not really agree with the Minister when he says that sometimes a parent is not available. It is not only the presence of a parent that we are asking for. We are asking for the presence of any appropriate grown-up who is not a police officer. The Minister also said that there are occasions when it is better that a parent should not be there. That is really condoning a parent not being a responsible parent. Our whole outlook is that the law is there to support parents so that they can be more responsible.
I am disappointed that the Minister will not accept the second part of the amendment, but perhaps it would be right for us to think about the matter and consider whether it is something that we should bring back later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
[Amendment No. 89E not moved.]
Clause 29 [Arrest elsewhere than at police station]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 90:
Page 24, line 34, after ("person") insert (" (a)")
The noble Baroness said: On behalf of my noble friend I speak to this amendment, and it may be convenient if I speak also to Amendment No. 91.
Amendment No. 91. Page 24, line 34, after ("constable") insert—
("; or
(b) is taken into custody by a constable after being arrested by a person other than a constable;")
Subsection (1) provides that, subject to the other provisions of the clause, a person who has been arrested by a constable must be taken to a police station as soon as is practicable after the arrest. This will ensure that the rights and safeguards set out in Parts IV and V of the Bill come into play as soon as is practicable.
While subsection (1) is satisfactory for the normal run of arrests where the arrest is made by a police officer, it does not cater for the case where the arrest is made by a member of the public, whether a householder who arrests a burglar in this living room or a professional store detective. Clause 23 preserves the existing power of a citizen to arrest for an arrestable offence. I think it is clear that the duty imposed on the police by subsection (1) should apply just as much in the case where an arrested person is given into their custody as in the case where they made the arrest in the first place. The amendment will ensure that that is so. I beg to move.
Lord Elystan-Morgan: We on these Benches accept that these two amendments are very useful in that they deal with small lacunae. We therefore welcome them.
On Question, amendment agreed to.
Baroness Trumpington Baroness Trumpington moved Amendment No. 91:
[Printed above.]
The noble Baroness said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Denham: I think I rather seek the guidance of the Committee here. The next amendment on the Marshalled List is Government Amendment No. 92, but I think it is probable that other amendments in the name of the noble Lord, Lord Plant, will be discussed at the same time. As we are very nearly at 11 o'clock this might be a convenient place at which to break. If that has the general agreement of the Committee, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Railways (No. 2) Bill
Reported from the Unopposed Bill Committee without amendment.

Repatriation of Prisoners Bill [H.L.]
Returned from the Commons agreed to with amendments.
House adjourned at five minutes before eleven o'clock.