Lords Sitting of 26 July 1984

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Milverton): The LORD CHANCELLOR On the Woolsack.

NCB Enterprises Ltd.
Lord Sandys: My Lords, on behalf of my noble friend Lord Chelwood, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will summarise the recommendations of the task force set up by the NCB to examine ways of bringing new business and new employment to the coalfields; approximately how many miners over what period of time should benefit from the efforts of NCB Enterprises Ltd.; and how and on what scale it will be funded over the next five years.
The Parliamentary Under-Secretary of State, Department of Energy (The Earl of Avon): My Lords, the task force set up by the National Coal Board, to which my noble friend refers, is expected to make its report to the board in early August. I shall ensure that my noble friend is informed of developments.
Lord Sandys: My Lords, I thank my noble friend for that reply. Can he inform your Lordships whether there has been any new development since 25th June last, when my noble friend last inquired into this subject?
The Earl of Avon: My Lords, in the nine-point programme put forward by the National Coal Board, the board stated that it would bring into full operation its new enterprise company which will provide mining communities with advisory services, accommodation facilities, managerial advice and, if necessary, launch aid to assist new small businesses and enterprises in those mining communities where a new diversity of jobs is required.
Lord Grimond: My Lords, is the Minister aware that this would appear to many people to be one of the most important developments which have taken place? Can he say on behalf of the Government what help they are giving? Is the finance to come exclusively out of sums already voted to the National Coal Board, or are they giving special aid to this very important project?
The Earl of Avon: My Lords, I welcome the noble Lord's support for this scheme. As yet the Government have not been approached on the matter of financial aid, and I shall let the noble Lord know.
The Earl of Lauderdale: My Lords, can my noble friend say whether it is not the case that in many mining villages where redundancies have been
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accepted voluntarily there should be considerable capital sums available from the redundancy benefits to enable new businesses to be started up?
The Earl of Avon: My Lords, indeed that could be the case, and the Government also have training opportunities schemes, but this will be in addition to those.
Lord Stoddart of Swindon: My Lords, can we be assured that the National Coal Board itself will keep this scheme very much under its own control? May I also ask the noble Earl whether the National Coal Board will encourage enterprises which will make many of the goods which the National Coal Board itself uses? Would that not be a good use of ex-miners' expertise?
The Earl of Avon: My Lords, I take note of what the noble Lord says, and I will encourage the National Coal Board to keep this well under its own umbrella.
Lord Glenamara: My Lords, is the noble Earl aware that there is a real need for this kind of scheme in respect of other closures as well as coal mines? Is he aware, for example, that in the small town of Shildon in County Durham there is now nearly 50 per cent. male unemployment? Is there not a need for some kind of a scheme of this sort to deal with that kind of redundancy?
The Earl of Avon: My Lords, as the noble Lord is aware, there are other schemes. As I mentioned earlier, there is the Government's training opportunities scheme run by the Manpower Services Commission. I cannot give him a specific answer to his question.
Lord Molloy: My Lords, can the noble Earl say whether the Government would be prepared to consider that even stronger links should be forged between NCB Enterprises Ltd. and the National Coal Board staff college?
The Earl of Avon: My Lords, I will indeed bring that suggestion to the attention of the coal board.

Spain: Extradition
3.4 p.m.
Lord Harris of Greenwich: 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 expect to conclude an extradition treaty with Spain before their entry into the European Economic Community.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, we recognise that there is a compelling need to re-establish extradition arrangements with Spain. To this end we are actively pursuing our discussions with the Spanish Government to find an acceptable basis for a new

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extradition treaty. I am unable to say at the present time whether it is likely that a treaty will be concluded before Spain's accession to the European Economic Community.
Lord Harris of Greenwich: My Lords, I thank the noble Baroness for that reply. May I ask her whether she is aware of the serious anxiety there is on this matter, in that people who are wanted by the police are apparently able to sun themselves in Spain with impunity? That being so, is she also aware that many of us who look forward to full Spanish membership of the European Community hope that this urgent matter will be dealt with as expeditiously as possible?
Baroness Young: My Lords, I note what the noble Lord said in the first part of his supplementary. It is true that because there is no extradition treaty in force with Spain it is not possible for any fugitive criminal to be extradited from Spain to the United Kingdom at the present time. But we accept that this is an urgent matter, and as my original Answer made clear we are addressing ourselves to it.
Lord Elystan-Morgan: My Lords, I wonder whether the noble Baroness the Minister can say whether or not there is any comprehensive review of the rights and obligations of the United Kingdom under the Extradition Act 1870 and our rights and obligations in respect of Commonwealth countries under the Fugitive Offenders Acts. I am sure that many Members of this House will feel that the arrangements, looked at globally, are incomplete and form an inconsistent picture.
Baroness Young: My Lords, our own Extradition Act is over a century old, as the noble Lord made clear, and in need of revision. The extent to which it should be revised is likely to prove controversial. However, my right honourable friend the Home Secretary has stated his intention to issue a consultative Green Paper later this year to see whether some consensus can be achieved. We shall then consider what changes in the law should be made.
Viscount St. Davids: My Lords, in a world in which we hope that passports will become less and less necessary, and in a particular area where we hope that some day it is conceivable that passports will be totally abolished, is it not necessary that we should take even more active steps to find some method by which, if the law requires it, we should be able to get these people back?
Baroness Young: My Lords, as I hope I indicated in my original Answer, we are addressing ourselves to this problem.
Lord Hughes: My Lords, is the Minister aware that there is a Council of Europe convention on extradition, and that when the Assembly of the Council of Europe was addressed last year by the Spanish Prime Minister he had a question from a British delegate who asked about the treaty with Spain? He replied that Spain had ratified the convention but that Britain had not ratified it. Would
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Britain's adherence to this convention be of any help in the matter?
Baroness Young: My Lords, the noble Lord is quite right: the United Kingdom is not a party to this convention. We do, however, have bilateral arrangements with all states which are parties to the convention except Lichtenstein, Turkey and Spain. Adherence to the convention would override those other arrangements. Were we to ratify on the basis of the Extradition Act 1870, the one currently in force, we would have to make a number of reservations, including one in respect of our prima facie requirement.

Wave Energy: Research
3.8 p.m.
Lord Stoddart of Swindon: 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 intend to restart the programme of research and development in wave energy.
The Earl of Avon: My Lords, following the Advisory Council on Research and Development's recommendation in 1982, the department's wave energy programme was reduced to its present level of about £300,000 a year. The programme is kept under review but there appears to be no justification at present for any increase.
Lord Stoddart of Swindon: My Lords, in thanking the noble Earl for his reply, may I also express my disappointment? Can he confirm whether the world's first commercial wave power station is to be built in Norway using research and development work undertaken in this country at a cost of £10 million to the British taxpayer? If this is so would he also say whether this is not yet another case of British brains and expertise being beneficially exploited by a foreign country, and Britain—the pioneer—failing to profit from its own genius?
The Earl of Avon: No, my Lords. I do not think that in this particular case that is so. The reason that we did not go forward with this technology is that at the moment we do not believe that it pays. In a country like Norway, it may do so because there is an indented coastline with a small tidal range which facilitates the installation of small-scale demonstration schemes. That would not apply to this country.
The Earl of Lauderdale: My Lords, could my noble friend say whether any sites have been identified on the British coastline which are in any way comparable with the Norwegian coastline as possibly suitable for this kind of power generation?
The Earl of Avon: No, my Lords, not at the moment, but the laboratory work is still being carried out particularly at Coventry Polytechnic, Queen's University, Belfast, as well as at Edinburgh University.
Lord Rea: My Lords, should not Her Majesty's Government be looking forward to the possible day when fossil fuels become scarce or uneconomic and possibly envisage the day when nuclear power is not regarded as a suitable means of obtaining energy? Is there not a case for having a working, full-scale model in this country such as the one in Norway? I feel that the answers that have been given so far do not fully clear the points which have been made by my noble friends.
The Earl of Avon: My Lords, we are continuing research to see whether there is any justification in a large-scale project for wave energy. In the meantime, we are concentrating for renewables on geothermal, both tidal and hot dry rock as well as wind, biofuels and passive solar.
Lord Stoddart of Swindon: My Lords, may I urge the noble Earl, in the light of the Norwegian experience and whether it expects to produce wave energy at less than 5p a unit, not to write off wave energy, as appears to be done, but to keep in very close touch with developments, and if applicable in this country to make sure that resources are available to develop?
The Earl of Avon: My Lords, the gist of my answers was that we have not written it off but are still keeping an eye on it. In fact, the energy technology support unit at Harwell is preparing a report on the programme which will he published later in the year.
The Earl of Halsbury: My Lords, can the noble Earl say whether any money has been spent on the real essence of this problem? How do you maintain wave-power generators in the open sea against incrustation by marine growth and the general corrosion of sea water?
The Earl of Avon: My Lords, I will bring the noble Earl's question to the attention of the laboratory where the work is being carried out.

Civil Service: Staff Numbers
3.14 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 what is the present total membership of the Civil Service and how this compares with the figure for 1979.
The Minister of State, Privy Council Office and Minister for the Arts (The Earl of Gowrie): My Lords, as my right honourable friend the Prime Minister announced in another place on 8th May, there were 623,972 staff in post in central Government departments on 1st April 1984– the latest date for which figures are available—compared with 732,275 on 1st April 1979. This reflects a reduction in the size of the Civil Service of more than 108,000 or 14.8 per cent. since the beginning of the last Parliament. This is a considerable achievement. A key pledge has been fulfilled.
Lord Sandys: My Lords, while I thank my noble friend for that most welcome Answer and recognise the achievement that it represents, may I at the same time thank my noble friend for the article in today's issue of The Times on this subject and ask him one further question? Will he consider the possibility, as he specifically mentioned the name in his article, that a return to the principles of Sir Ernest Gowers is indicated in this general achievement?
The Earl of Gowrie: My Lords, in a number of fields we are trying to build on the work initiated by my noble friend Lady Young, not least on the question of forms and making them easier for all of us to understand.
Lord Strabolgi: My Lords, may I ask the noble Earl whether he has seen another article in The Times which claims that there are now 40,000 heroin addicts in this country? In view of this, will the Government do something to reconsider their policy about cutting down the numbers of Customs officers so that the controls of imports of this drug will be more strictly regulated?
The Earl of Gowrie: My Lords, I am glad to be able to tell the noble Lord and the House that Customs and Excise have been carefully ordering their priorities so as to maximise the deployment of resources on the investigation and prevention of drug traffic. This year, a further 60 staff are to he deployed at ports and airports to enhance preventive control.
Lord Cledwyn of Penrhos: My Lords, two years ago the noble Earl acknowledged that there was a shortfall in the recruitment of administrative trainees and this was underlined, I think, by the Civil Service Commissioners at the time. Is he satisfied that there will be adequate recruitment this year?
The Earl of Gowrie: Yes, my Lords, I see no sign of recruitment not being satisfactory in view of the lower manpower targets that we have now achieved and the manpower targets that we are still aiming to achieve.
Lord Wells-Pestell: My Lords, is it not true that when the Minister says that 60 more Customs officials have been employed elsewhere, they have, in fact, been drawn from other ports and therefore they are understaffed?
The Earl of Gowrie: My Lords, the Customs and Excise are very seized of the urgency of the investigation and prevention of drug smuggling. There is no question of resources being denied to them for this end.
Lord Molloy: My Lords, can the Minster say how many of the staff that he mentioned who have been dismissed or got rid of relate to the Inland Revenue and what is the reduction there in the number of civil servants who are combating the evil of the black economy in this country?
The Earl of Gowrie: My Lords, there have been some increases of staff in a number of fields—not least in the Customs and Excise, as I said to the noble Lord,

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Lord Strabolgi, and in the Inland Revenue in respect of investigation of the kind in which the noble Lord, Lord Molloy, is interested. The figures that I was using are net reductions. They include substantial increases of personnel in key areas.
Baroness Gardner of Parkes: My Lords, may I ask my noble friend whether he will convey to the Civil Service our very high regard for the work that they do and can he inform me whether he thinks there is any loss of morale because quite often they seem to be under public attack?
The Earl of Gowrie: My Lords, I am grateful for what my noble friend has said and I am glad to use the opportunity of her supplementary question to remind the House that these very substantial savings have been achieved by civil servants themselves. In my experience after a year as Civil Service Minister, morale is high and the programme is being carried forward with a will.
Lord Avebury: My Lords, is the noble Earl aware that applicants for naturalisation as British citizens are being kept waiting more or less indefinitely even for an interview and that the section of the Home Office which is responsible for this made a profit of £6 million out of the applicants last year because they have to pay in advance for a service they may wait months to receive? Does he think that this is a satisfactory position or that the persons concerned with this work ought to be increased in number?
The Earl of Gowrie: My Lords, I will draw the points that the noble Lord has made to the attention of the Home department.
Lord Walston: My Lords, will the noble Earl inform us of whether any of the work formerly done by the civil servants who are now no longer employed is being done by private firms; and, if so, how many people are employed in that work?
The Earl of Gowrie: My Lords, I cannot give the noble Lord numbers once people have left the Civil Service or are engaged in the private sector; but it is certainly the case that the net savings of some £600 million in a full year as a result of the manpower exercise is a net figure and takes into account the costs that have been transferred to the private sector.
Lord Hatch of Lusby: My Lords, as the noble Earl is responsible for the welfare, recruitment and numbers of the Civil Service, can he tell the House what has happened to these over 100,000 civil servants? Have they just been added to the dole queues? Has he any information as to what will be their future prospects and what are the prospects of young recruits into the service?
The Earl of Gowrie: My Lords, these staff savings have been achieved in the usual way by voluntary retirement or natural wastage. As I said in answer to an earlier supplementary, the quality and calibre of young people coming forward as applicants to the civil service are very good and we shall of course take as many as we are able to afford.
Lord Glenamara: My Lords, would the noble Lord care to say how much direct Government action has added to the unemployed total by reducing the number of civil service jobs, by cuts in the education service, by cuts in the Health Service, by closing naval dockyards. by closing railway workshops to which I referred during an earlier Question, and so on?
The Earl of Gowrie: My Lords, I am sure the noble Lord is well aware that the problems of unemployment cannot be solved by swelling the public sector. In fact, the result would be the very opposite.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Long will, with the leave of the House, repeat a Statement that is to be made in another place on the water supply situation in Wales.
It may be for the convenience of the House if I announce that the Report stage of the Police and Criminal Evidence Bill will be adjourned for dinner at approximately 7 p.m. for a short period and that during this adjournment the Motor Vehicles Tyres (Safety) Regulations 1984 and the Industrial Training Levy (Engineering Board) Order 1984 will be taken.

Overseas Trade
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee:

Aldington, L. (Chairman)

Beswick, L.

Boardman. L.

Ezra, L.

Falkland, V.

Greenhill of Harrow, L.

Hatch of Lusby, L.

Kearton, L.

Polwarth, L.

Selsdon, L.

Stoddart of Swindon, L.

That the Committee have power to adjourn from place to place;
That the Committee have leave to report from time to time;
That the Committee have power to appoint specialist advisers;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out;
That the Committee do meet on Wednesday, 1st August at 3 p.m. in Committee Room 3.
On Question, Motion agreed to.

Consolidated Fund (Appropriation) (No. 2) Bill
The Earl of Gowrie: My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(The Earl of Gowrie.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order No. 44 having been suspended (pursuant to Resolution of 23rd July), Bill read a third time, and passed.

Lords Expenses
3.24 p.m.
The Lord President of the Council (Viscount Whitelaw)The Lord President of the Council (Viscount Whitelaw) rose to move, That this House approves the following proposals with respect to expenses incurred by Lords after 31st July 1984–
(1) The limits on the expenses which Lords may recover under the Resolution of 22nd July 1980 shall be determined as follows—

(a) for paragraph (1)(a) of the Resolution (day subsistence and incidental travel) the limit for each day of attendance shall be—

(i) for days in the year beginning with 1st August 1984, the amount obtained by increasing £16·00 by the percentage by which the rate of day subsistence allowance payable for an absence of more than 10 hours in the case of a member of the Home Civil Service of the highest subsistence classification was increased as from that date,

(ii) for days in any subsequent year, the amount obtained by increasing what was the limit for a day's attendance in July of the immediately preceding year by the percentage by which the rate of day subsistence allowance so payable was increased as from the end of that July (so that, if that percentage is nil, the limit remains the same for days in the year following that July);

(b) for paragraph (1)(c) of the Resolution (overnight subsistence) the limit for each day of attendance shall be—

(i) for days in the year beginning with 1st August 1984, the amount obtained by increasing £40·00 by the percentage by which the highest Inner London rate of night subsistence allowance payable to members of the Home Civil Service was increased as from that date,

(ii) for days in any subsequent year, the amount obtained by increasing what was the limit for a day's attendance in July of the immediately preceding year by the percentage by which the highest Inner London rate of night subsistence allowance so payable was increased as from the end of that July (so that, if that percentage is nil, the limit remains the same for days in the year following that July);

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(c) for paragraph (1)(d) of the Resolution (office, secretarial and research allowance) the limit for any year shall be the appropriate amount multiplied by the number of days of attendance in that year falling within paragraph (1)(a) of the Resolution, the appropriate amount for this purpose being determined as follows—

(i) for expenses incurred in the year beginning with 1st August 1984, the appropriate amount shall be the amount obtained by increasing £17·00 by the relevant percentage,

(ii) for expenses incurred in any subsequent year, the appropriate amount shall be the amount obtained by increasing what was the appropriate amount for expenses incurred in the immediately preceding year by the relevant percentage (so that, if the relevant percentage for any year is nil, the appropriate amount remains the same for expenses incurred in that year);

(d) for paragraph (3) of the Resolution (office holders' secretarial allowance) the limit shall be—

(i) for the year beginning with 1st August 1984, the amount obtained by increasing £2,000·00 by the relevant percentage,

(ii) for any subsequent year, the amount obtained by increasing the limit applicable to the immediately preceding year by the relevant percentage (so that, if the relevant percentage for any year is nil, the limit remains the same for that year).

(2) In this Resolution "year" means a year beginning with 1st August, and for the purposes of this Resolution—

(a) the relevant percentage for any year is the percentage by which the amount of salary (exclusive of allowances and overtime) payable for the period of twelve months ending with 31st March in that year to a person in the Home Civil Service at the maximum point on the scale for Senior Personal Secretaries and in receipt of Inner London weighting exceeds the corresponding amount for the period of twelve months ending with 31st March in the immediately preceding year;

(b) any fraction of a pound in an amount obtained under paragraph (i) or (ii) of sub-paragraph (a), (b), (c) or (d) of paragraph (1) above shall be treated as a whole pound if it is not less than 50 pence, but shall otherwise be disregarded.

The noble Viscount said: My Lords, I beg to move the first of the two Motions standing in my name on the Order Paper. The purpose of this Motion is to provide for the updating each year of the various elements of the Peers' expenses allowance.
At present a fresh resolution of this House is required each time the allowance is reviewed. Earlier this year my right honourable friend the Lord Privy Seal asked the Top Salaries Review Body to advise on arrangements for keeping the allowance up to date in a way which would eliminate the need for annual resolutions.
The Review Body's recommendations are to link

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the subsistence elements of the expenses allowance to changes in corresponding Civil Service subsistence rates and to link the secretarial allowance and office holders secretarial allowance to changes in Civil Service secretarial pay. The Government have accepted these recommendations, and they are given effect by the Motion before the House.
Perhaps it would be appropriate if I sought—I hope successfully—to explain the terms of the Motion to your Lordships. The new rates of allowance will be based on the current rates, which your Lordships agreed to in July last year, namely, a maximum of £16 per day for day subsistence and incidental travel, £40 per day for overnight subsistence, £17 per day of attendance for secretarial and office expenses and research assistance and £2,000 per year for the office-holders' secretarial allowance. The Motion before the House defines the formulae for increasing each of these limits. I should emphasise that they are to be linked to changes in Civil Service pay and allowances. Thus the subsistence allowances will not necessarily be the same as the equivalent Civil Service allowances, but they will be increased each year by the same percentage as those allowances are increased. And in the same way the secretarial allowances will be increased each year by the same percentage as the pay of the appropriate Civil Service secretarial grade is increased.
The Motion provides for the new rates to come into effect on 1st August, and for further increases to take effect on 1st August in subsequent years. I regret that I am not able to say at this stage exactly what the new rates will be, as the changes in the Civil Service rates to which they are to be linked are still under negotiation. But I understand that negotiations on Civil Service subsistence rates are at an advanced stage, and that the changes in those rates are likely to be fixed shortly. In the case of the secretarial allowances, which are linked to changes in Civil Service rates of pay, these cannot be fixed until the conclusion of the current Civil Service pay negotiations.
If your Lordships agree to this Motion, it will avoid the need for further motions to deal with routine up-rating. Of course, my Lords, there may still be a need from time to time to review the adequacy of the allowance in the light of changing circumstances. That is something which can be dealt with as the need arises. My Lords. I beg to move.
Moved, That this House approves the above proposals with respect to expenses incurred by Lords after 31st July 1984.—(Viscount Whitelaw.)
Lord Cledwyn of Penrhos: My Lords, I should like to express my support for the Motion which has just been moved by the noble Viscount the Leader of the House. It is still not widely known just how hard your Lordships work in discharging your functions as Members of this House. Not only in this Chamber but in many committees and sub-committees upstairs, many of your Lordships put in long hours and a great deal of effort. The work and the hours have increased substantially in recent years, as all of us know. It is only right that in a House in which the great majority are entirely unpaid there should be adequate provision for the reimbursement of expenses so that noble Lords need not be out of pocket.
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It was a year ago yesterday that your Lordships agreed to new rates of expenses in accordance with the recommendations of the Top Salaries Review Body. I understand that the effect of the Motion which has just been moved by the noble Viscount will be that the rates agreed to on that occasion will now be automatically up-rated in step with appropriate rates of pay and allowances in the Civil Service. This is a sensible measure which I believe all of us will be glad to support.
I appreciate that the noble Viscount is unable to tell us at present just what the new rates will be, but I do hope he will be able to assure the House that no time will be lost in bringing the new arrangements into operation as soon as the Civil Service rates have been agreed. The increases will certainly be well-deserved.
Lord Diamond: My Lords, I very much appreciate the way in which the noble Viscount has moved the Motion and explained it and made it very simple to understand. However, that perhaps leaves two questions which I could address to him. In the first place, in the event of the exact indexation figure not being available at the time that some of your Lordships may find it convenient to submit expense claims, would the noble Viscount indicate the exact way in which noble Lords should fill in their claims? It so happens that the House will be sitting on 1st August.
The second question I want to address to the noble Viscount relates to the important statement he made that, although this is a very good way of avoiding reconsidering the detail of increases, it nevertheless leaves open the question of dealing with variations, one might say. in principle. And, of course, there are allowances which your Lordships are denied but which are paid in another place. That is a matter which your Lordships may feel ought to be discussed from time to time. You may feel that the matter ought to be aired and that there ought to be some opportunity of doing that here. There are a variety of matters but I will not list them at the moment. So I ask the noble Viscount what method he envisages whereby we might conveniently bring these matters on to the Floor of the Chamber for discussion now that they will not automatically come before us in an annual resolution?
Viscount Whitelaw: My Lords, I am grateful to both noble Lords for their response to this Motion. In answer to the noble Lord, Lord Cledwyn, of course as soon as the new rates are available they will be immediately brought into operation.
May I say to the noble Lord, Lord Diamond, that I understand that if, when noble Lords are filling in forms, they have incurred more than the old maximum, they would then inform the Accountant accordingly and he, when the rates were put up after that, as they would be, would be ready to increase the maximum amount to what they had claimed.
Baroness Elliot of Harwood: My Lords, as chairman of the All-Party Scottish Peers' Committee, I have been asked on behalf of Scottish Peers who are married (as most of them are) whether it would be possible for an allowance to be made for the wives of Scottish Peers who come to London, as they often do. In the House of Commons I understand that that is

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almost automatic: 16 passes are issued, or something like that. My Committee did not suggest that, but thought that perhaps we might get six passes for the wives of Scottish Peers who attend this House regularly. That would be a great help to them and it would also mean that the wives would be as interested in what happens in the House of Lords as their husbands are. I have spoken to the noble Viscount about this allowance and I wonder whether this point could be discussed at some time, for I think the granting of an allowance would make it only fair in comparison with the wives of MPs who represent Scottish consitituencies.
Viscount Whitelaw: My Lords, I am grateful to the noble Baroness, Lady Elliot of Harwood, particularly since it enables me to put right a failure in replying to the noble Lord, Lord Diamond, on what would happen if there were to be variations from the present expenses levels. That of course could always be debated at any time your Lordships wished and we could come forward with it. Some proposals of course such as the one mentioned by the noble Baroness, Lady Elliot, would have to be referred to the Top Salaries Review Body at their next review, and we could see how we got on at that stage. I am bound to say to the noble Baroness and to the House that when I first became a Member of Parliament in another place in 1955 there were many years during which my wife had no means of coming to London from Cumbria—which being just over the Border is, after all, very nearly as far as the noble Baroness has to travel. So I am basically very sympathetic to that particular point of view.
The Earl of Bessborough: My Lords, may I ask my noble friend one question about secretarial allowances? I am sorry that I have not given him notice, but some of my noble friends have told me that they have some parliamentary business which has to be carried out when this House is not sitting. Could my noble friend look at the possibility of secretarial allowances being paid when a noble Lord is not actually attending a Session of Parliament?
Lord Taylor of Blackburn: My Lords, may I apologise to the noble Lord, Lord Diamond, for jumping up too quickly earlier? May I ask the noble Viscount whether these expenses or allowances are going to be tied to a Civil Service grade? May I also ask the noble Viscount which trade union or organisation he would advise noble Lords to join to try to help with negotiations? Perhaps if he does not care to advise them he would say whether the Government would be prepared to pay noble Lords £1,000 not to join?
Viscount Whitelaw: My Lords, I see the noble Lord is seeking to get me into paths of argument which I do not wish to come into on this particular occasion. I think I would have to say to him that it would be up to noble Lords themselves to decide how they would wish to proceed.
Lord Ferrier: My Lords, further to what my noble friend Lady Elliot has said, I am not directly interested myself, but I should like to draw attention to a point in connection with Peeresses coming to London,
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because if they draw a ticket for a seat for the opening of Parliament, then their attendance is really part of the proceedings of the House.
Viscount Whitelaw: My Lords, in answer, first, to my noble friend Lord Bessborough, I understand that it is possible to "spread the days over", if he understands my meaning. I have had some consultations with the Chief Whip. If I have not made it clear, perhaps my noble friend had better approach the Chief Whip and I together and I will try to make it clearer thereafter.
Lord Diamond: My Lords, may I trouble the noble Viscount once more for further clarification as to what he meant when he said he was listening to the noble Baroness, Lady Elliot, with sympathy? He referred to the fact that when he was a Member for many years his wife was not able to accompany him; and, as we all know, this can cause domestic problems. I take the view that your Lordships are more, not less, entitled than Members of another place to be rid of any impediment or inhibition which prevents unpaid, honorary Members of your Lordships' House coming to attend to their national duties out of a sense of conscience, which is what happens at the moment. Therefore, I am very sympathetically inclined indeed to what the noble Baroness suggested, especially if it were a matter not limited to Members of your Lordships' House who happen to sit across the Border but were extended to Members in any place in any part of the country.
May I therefore ask the noble Viscount, who has made it clear that it took time in another place for this allowance to become available and that it may take time in this place— indeed it may take even longer in this place—whether he could make it clear that he had in mind that this matter ought to be put before the relevant body at their next meeting so that they can start considering it?
Viscount Whitelaw: My Lords, in answer to the noble Lord, I was of course expressing a personal view and I should be very glad to discuss that particular personal view with my colleagues, although of course I could not commit the Government in any way. Perhaps I might make one point clear which would emphasise the difficulties attaching to this. Office-holders and Ministers of this House have been given a number of passes for their wives but, unlike Members of another place, we have had to pay full rates of tax on these passes for our wives. Your Lordships will realise that does diminish the value of the passes fairly considerably.
On Question, Motion agreed to.

Car Mileage Allowance
3.39 p.m.
Viscount Whitelaw Viscount Whitelaw rose to move, That this House approves the following proposals with respect to the rates of the car mileage allowance available to Members of this House—
(1) The allowance payable in respect of a journey commenced in the period beginning with 1st

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October 1984 and ending with 31st March 1985 shall be payable—

(a) subject to the limit specified in paragraph (3) below, at the rate per mile shown in column 2 of the following Table in relation to the engine capacity of the vehicle used for the journey; and

(b) in respect of miles in excess of that limit, at the rate per mile shown in column 3 of that Table in relation to that engine capacity.

TABLE

Engine capacity

Mileage up to limit

Further mileage

1300 cc or less .. ..

18p

11·3p

More than 1300 cc and not more than 2300 cc

25·9p

14·7p

More than 2300 cc ..

39p

19·5p

(2) Paragraph (1) above shall have effect in relation to journeys commenced in the year beginning with 1st April 1985 and each subsequent year with the substitution, for the rates shown in the Table, of rates calculated, on the principles exemplified in Appendix I to the Report of the Independent Inquiry, from the figures in the edition of the Royal Automobile Club's Schedule of Estimated Vehicle Running Costs published in or about the April of the year in question.
(3) For the purposes of this Resolution the limit on the number of miles in respect of which car mileage allowance may be paid at the rate specified in column 2 of the Table shall be 10,000 miles for the period beginning With 1st October 1984 and ending with 31st March 1985 and 20,000 miles for the year beginning with 1st April 1985 and for each subsequent year.
(4) In this Resolution—
"the Report of the Independent Inquiry" means the Report of the Independent Inquiry into Motor Mileage Allowance for Members of Parliament to the Leader of the House of Commons (H.C. 469 of Session 1983–84);

"year" means a year beginning wih 1st April.
The noble Viscount said: My Lords, I beg to move the second Motion standing in my name on the order paper. The purpose of this Motion is simply to bring the motor mileage allowance in your Lordships' House into line with new arrangements which have recently been agreed to in another place. It may be helpful if I explain a little of the background to the changes made in another place.
Last year the Civil Service moved to a two-tier system of motor mileage rates. Mileage over and above an annual limit of 9,000 miles was made subject to a lower rate. The reason for this was that the normal rate includes a contribution towards the annual standing charges incurred in running a car. If this rate were paid in full to those travelling very long distances, they could make a profit which would be liable to tax. The two-tier system prevents such profits from being made, and thus ensures that no tax liability arises. In July last year, the Government proposed in another place that a similar arrangement should be introduced for the mileage allowance payable to Members of Parliament. But the Government's proposals were not
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acceptable to Members in another place, and my right honourable friend the Lord Privy Seal undertook to set up an independent inquiry into the most appropriate means of reimbursing members the cost of their motor mileage.
The inquiry was undertaken by my noble friend Lord Peyton of Yeovil, the noble Lord, Lord Barnett, and Mr. Richard Wilkes, under the chairmanship of my noble friend Lord Peyton of Yeovil. Their report was published last month. It recommended the introduction of a two-tier system of mileage allowance, with a reduced rate for travel over 20,000 miles in any year. The report proposed that the allowance should be calculated by reference to the table of vehicle running costs issued by the RAC in April each year. It proposed that the basis of calculation should be one vehicle of 2600 cc, replaced every three years. On that basis, the report proposed a rate of 39p per mile for the first 20,000 miles, and thereafter 19.5p per mile.
The report indicated that these figures were intended to be an upper limit, and that Members with smaller cars would be expected to limit their claims to the amount of their costs. The Government felt, however, that in the interests of public accountability, and of the proprieties being not only observed but seen to be observed, it would be appropriate to formalise such an arrangement and to lay down lower limits for smaller cars. Accordingly, the resolution which was approved in another place last Friday laid down different rates for three ranges of engine size. The rates are set out in the table which appears in the Motion before your Lordships.
If your Lordships agree to this Motion, it will—like the Motion on Lords' expenses to which your Lordships have just agreed—provide for automatic annual up-rating. The rates which appear in the table will apply from 1st October this year until 31st March next year. Thereafter, with effect from 1st April each year, the rate will be recalculated in accordance with the RAC's annual table of vehicle running costs, to which I have already referred.
I realise that one effect of the proposed new arrangements will be that noble Lords whose cars have an engine capacity of 1300 cc or less will, at any rate initially, be able to claim less than the current flat-rate allowance. But I hope your Lordships will agree that it is only right that the allowance which is payable should reflect, as accurately as possible, the expenses actually incurred. Furthermore, a uniform scale for reimbursement of motoring expenses should surely be applicable to Members of both Houses. I therefore hope that your Lordships will endorse the arrangements which have been adopted in another place and which reflect the findings of an independent inquiry.
I have noted with interest the amendments in the name of the noble Lord, Lord Tordoff, which would have the effect of retaining a uniform rate for all cars, of whatever size. It is perhaps only fair to the noble Lord that I should wait to hear what he has to say before responding to those amendments.
I have been reprimanded, if that is the right word, for straying out of order during the previous Statement and your Lordships all know who reprimanded me. Having been so reprimanded, I will not do it again. I

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will not reply to each noble Lord in turn. I will, of course, reply at the end and indeed also after the amendments have been moved. My Lords, I beg to move.
Moved, That this House approves the above proposals with respect to the rates of the car mileage allowance available to Members of this House—(Viscount Whitelaw.)
Lord Tordoff Lord Tordoff moved Amendment No. 1 to the above Motion:
In paragraph (1)(a), line 2, leave out "2" and inset "1".
The noble Lord said: My Lords, we are all grateful to the noble Viscount, who, in his usual humorous and relaxed way, has introduced what appears to be an extremely complicated piece of paper in a way which we can all understand. Although I may not succeed to the same extent, I will try to do the same with my amendments, which appear to be equally complicated. I rise to move Amendment No. 1 but, by leave of the House and, I hope, for its convenience, I will speak to Amendments Nos. 1 to 6.
Amendment No. 2: In paragraph (1)(a), line 2, leave out "in relation to the engine capacity of the vehicle used for the journey".
Amendment No. 3: In paragraph (1)(b), line 1, leave out "3" and insert "2".
Amendment No. 4: In paragraph (1)(b), line 2, leave out "in relation to that engine capacity".
Amendment No. 5: Leave out the Table and insert:

"TABLE

Mileage up to limit

Further mileage

25·9p

14·7p"

Amendment No. 6: In paragraph (3), line 2, leave out "2" and insert "1".
Noble Lords will see that Amendment No. 5 is the major amendment in this group and that the others are consequential upon it.
Before I go any further, I ought to make it plain, standing here as I do at the Liberal Front Bench, that this is not a party matter. It is a matter on which I have the support of a number of my colleagues individually, but it is not being advanced to your Lordships as a party matter and I hope other noble Lords will recognise that it ought to be a matter for freedom of voting as this House understands it.
First, may I clear away one or two misunderstandings by saying that this recommendation which is before your Lordships was not the original recommendation from the Top Salaries Review Body, which wished to have a single maximum figure within which noble Lords could claim up to the limit of their actual costs at a level of 39p per mile. The Government have not taken that on board and I am not complaining about that. There is no earthly reason why the Government should on every occasion accept the recommendations of individual review bodies.
Nor is it based on Civil Service rates either now or in the future. Indeed, it has been put to me that, if my amendment were to be carried, the rates would be lower than the appropriate Civil Service rates. I find no difficulty with that, because the need for car usage by civil servants is quite different from that of your Lordships' House. We have one purpose for using motor cars and that is to come to this House and to get home. Civil servants have to use them for business in
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other parts of the country at different times of the day and night, and I believe that what is appropriate to them is not necessarily appropriate to us.
Nor do I accept the suggestion by the noble Viscount that, because these rates have been laid down for another place, they are necessarily applicable to us. The payment of car allowances to honourable and right honourable Members in another place is to enable them not only to get here and to get home, but also to move about their constituencies on political business. We do not have constituencies and therefore I suggest that the questions are again different. These are based very properly on figures produced by the RAC. They are not directly attributable to those figures, because the middle bracket is an average across the range for 1,300cc to 2,300cc, but they are broadly based on figures that have been put up by the RAC and therefore, in that sense, I have no quarrel with the figures which are included.
What I am questioning is the introduction of the higher band at 39p. As I said, although that is the same figure as the Top Salaries Review Body suggested, they suggested that as a maximum and not as a norm; that is, up to the level of 20,000 miles a year. I believe that in these days it behoves Members of your Lordships' House to set an example in the country. We should be seen to be economical with taxpayers' money. We should be seen to encourage the use of public transport. I would draw your Lordships' attention to the expenses form that most of us fill up, which states on the back in the notes:
"Lords are reminded that travel by road is considerably more expensive than that by public transport and are therefore urged to use public transport wherever practicable."
That is something to which we should all subscribe. Cars are a necessity for some of your Lordships, because of where you live and for other reasons, and it is proper that such noble Lords should he properly recompensed for the costs that are incurred. But the other objection that I have to raising this top band is the fact that we should also be economical in the use of scarce energy resources.
We have had some questions today on wave power. Whatever happens to that, there will be a need for many years to come for the use of hydrocarbon fuels for transport, but these, as we know, are not replaceable. Again I believe that we should be setting an example to the country in the economic use of hydrocarbon fuels. It seems to me that the Motion relating to our expenses does not make us appear to do so. Indeed, the introduction of the top band will be seen by the world outside as being the very opposite. It will be seen as encouraging noble Lords to use their cars rather than to use public transport and, moreover, to use big cars. If one were to be cynical about it, it might be suggested that the best thing that one could do in terms of getting value for money from expenses—which I am sure noble Lords are not out to do, but it may be seen like that by the outside world—would be to buy a second-hand 2,500 Rover which is about 10 years old on which the depreciation is down to virtually nothing.
It may be that people need cars for purposes other than merely to come to this House and go home again. If that is so, it is the choice of noble Lords. It seems to me that the variable cost they then pay should be

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attributable to them. We should expect noble Lords to be able to come to this House in reasonable comfort at a reasonable speed so that they can properly carry out their duties, but I do not believe that we should be seen to be encouraging more than that.
The right honourable Leader in another place indicated the other day in a debate on the same subject that we were to be seen as in a goldfish bowl and that the world outside would monitor what we do. I should like to draw your Lordships' attention to a letter which appears in today's copy of The Times, which says:
"I am dismayed by the new scale of mileage allowances, detailed on page 2 of last Saturday's Times, which MPs have voted themselves. This system encourages rather than penalises the use of large capacity cars and I would suggest that this is a bad example and a retrograde step at a time when fuel conservation is supposed to be practised by the rest of the population".
The world outside is watching us, and I believe that we must be seen to be acting responsibly. No doubt we do act responsibly and no doubt we shall act responsibly, but we have to be seen to act responsibly. I believe that the Government's proposals will be seen as the opposite. It is on that simple proposition that I beg to move Amendment No. 1, having spoken to the other amendments, of which Amendment No. 5 is the kernel.
Lord Morris: My Lords, the noble Lord, Lord Tordoff, speaks, as I do, with the comfort of comparative youth. He has not considered the vitally important point that there are many Members of your Lordships' House who are considerably older than are we who need the safety and comfort of larger capacity cars. I totally reject the case which he has just put forward.
Lord Jenkins of Putney: My Lords, I support the amendment moved by the noble Lord, Lord Tordoff, not only for the reasons he has so cogently put forward but also because on one occasion when a noble Baroness ran into my Ford Escort the cost was comparatively small, whereas on another occasion when I ran into a noble Lord's Rolls Bentley the cost was very large. Therefore I suggest that noble Lords should be discouraged from using Rolls Bentleys and encouraged to use Ford Escorts. For this reason, I find myself in full support of the amendment moved by the noble Lord, Lord Tordoff.
Lord Mulley: My Lords, I, too, support the amendment moved by the noble Lord, Lord Tordoff. I join with him in thanking the noble Viscount the Leader of the House for putting his case so clearly but I reject his initial thesis that we have got to follow what has happened in another place. The noble Viscount and I were in the other place together for many years. I believe he will agree that the need for a car is greater in the rural rather than the urban constituency. Members of Parliament cover large distances in their cars. They have to go round their constituencies, carry people to the polls, and so on. Their need for cars is probably greater than that of Members of this House.
I am not particularly attached to a particular sum of money, but I believe that it would be better to stick to a uniform sum. We should not have a mileage allowance of up to 20,000 miles at 39p for anybody's car, because that amounts to £7,800 a year. That is a
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great deal of money to convey any noble Lord from wherever he lives to this place during the limited period of time that the House sits. I believe, therefore, that the second as well as the first part of the noble Lord's amendment is important and that if the amendment were carried as a whole there would inevitably be a reduction in the total cost, without any undue hardship. I have heard no complaints about the existing arrangements. For many years the other place has had a uniform arrangement and for many years before that there was no car allowance at all, but that is an entirely different matter.
Secondly, it is difficult to know where to draw the line. There is no such thing as a British 1300cc car. The whole of the British Leyland range is 1275cc, the Ford range is 1296cc and the Vauxhall range 1297cc.
Lord Mottistone: My Lords, if I may correct the noble Lord, I have a British Leyland Maestro which is 1300cc.
Lord Mulley: My Lords, the noble Lord will find that that is just printed on the car. If he looks at the official registration and the official statistics published by the motoring organisations, the noble Lord will find that his actual engine capacity is 1275cc. The Vauxhall range is 1297cc. If one wishes to buy a certain foreign car—I shall not mention its name, in case the noble Lord might be tempted to buy it—one can buy it with an engine capacity of 1301cc. Therefore, with an increase in capacity of one-third of 1 per cent—0.03—you can get almost a 50 per cent. increase in your allowance, which does not seem to me to make very much sense.
Furthermore, in assessing the cost of motoring one has to bear in mind not merely the cost of fuel, which is what we have been talking about, since that is related to engine capacity, but the cost of other motoring expenses. Tax and parking costs are uniform, whatever the make of car. The biggest cost of motoring—insurance and depreciation—is not necessarily related to engine capacity but to a whole range of other matters. Very expensive cars can have a relatively low engine capacity.
I strongly urge noble Lords to take into account the point made so ably by the noble Lord, Lord Tordoff, in moving his amendment: that we should not be seen to be encouraging the use of large cars, thus attracting a greater mileage allowance. I am sure that the noble Viscount will also endorse the plea of the noble Lord, Lord Tordoff, that as this is a House of Lords matter we should have a free vote.
Lord Peyton of Yeovil: My Lords, there are three points which I should very much like to make as the member who had the rather difficult job of presiding over this small committee. First, I should like to make it clear that the committee were not invited to consider, nor did they apply themselves to, the question of what allowances should be paid to Members of your Lordships' House. They were appointed to consider the allowances which should properly be paid to Members of Parliament. They found the task exceedingly difficult and complicated to fit every kind of constituency, every kind of Member, old and young, regardless of their physical strength and

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whether or not they have young families. It was not at all easy. They did their best and attempted to produce something which was simple and convenient and did not involve a huge amount of administrative work. They also attempted—and this is the last point I want to make—to keep their report reasonably short. I must say that we were all astonished when the Government, in publishing that report, followed that example.
I did comment to my right honourable friend the Leader of the House that it was strange to publish a report which began with the word "we" and then not to identify who "we" were. In his answer to me he pointed out that the names of the members of the committee had been omitted in the interests of brevity!
Lord Somers: My Lords, I do not want to oppose the amendment but I should like to make one point. The noble Lord, Lord Tordoff, quoted a passage from the instructions which said that noble Lords are urged to use public transport whenever possible. That would give rise to many difficulties. If one lives some way from a railway station, one has to make arrangements either to park or to garage one's car while one is in London, and that is not always easy. It is expensive, and it may be next door to impossible. When one gets here, of course, one has to get a taxi to the House, and taxis are getting more and more expensive every year. Therefore, I do not know that I would say that the difference in cost is all that great. However, I thought I would make that one point.
Lord Monson: My Lords, I wholeheartedly support the amendments of the noble Lord, Lord Tordoff. Apart from the incidental and mildly selfish feelings which some of your Lordships may share, that there are already far too many large cars clogging up the forecourt so that those of us with cars of a more normal size often find it impossible to park, there is a far more important consideration—the British taxpayer.
The most expensive first-class return rail fare between London and Edinburgh is £104. At the mileage rate proposed for cars with engines in excess of 2.3 litres capacity, the corresponding car mileage expenses would be no less than £305.76—almost three times as much. The respective amounts for Liverpool are £60 and £150.93; for Lincoln, £41 and £105.69; for Norwich, £34.50 and £89.70; and for Cardiff, where for some reason the differential is at its narrowest, £47 and £ 113.10. This is taking the most expensive first-class rail fares as examples. When a first-class weekend return is bought—which is more often than not possible for your Lordships —the differential is even greater: over four times in all cases and over five times in the case of Edinburgh, where the weekend return rail fare is £61 in comparison with just under £306.
Lord Ross of MarnockMy Lords, would the noble Lord give way? As I look around this House I see that there are a few old-age pensioners. For them it is even cheaper by rail; it is half the price.
Lord Monson: My Lords, I am very grateful for that extremely useful support. I support these amendments, but I do not think that they go far enough. The mileage figure for the first few thousand miles includes not only running costs (which is
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reasonable enough) but standing costs: the cost of the road fund licence, the insurance, and that part of the depreciation attributable to the age of the car rather than to the mileage covered. It is quite possible that the majority of honourable Members in another place do have to buy a second car for their constituency work, especially if they represent geographically large constituencies in Scotland, the Borders, Wales, the West country, Northern Ireland and so on, where they need a car in order to keep in contact with their widely scattered constituents. But these considerations do not apply to noble Lords, as has been pointed out by the noble Lord, Lord Tordoff. There must be relatively few noble Lords who buy a car for the sole purpose of journeys to and from this House. That being so, is it really right that standing costs (as opposed to running costs) should be included in our mileage allowance at all?
Finally, may I point out that my brother happens to be a county councillor, and the mileage allowance to which he is entitled is 19.1p for a car of any size. This mileage allowance, I understand, applies to county councillors as well as to magistrates. Why should Members of this House be able to claim twice the mileage allowance of county councillors and magistrates? I look forward to hearing what the noble Viscount has to say on this matter.
Lord Hatch of Lusby: My Lords, while supporting the amendments of the noble Lord, Lord Tordoff, may I first make one reservation about the implications of his speech. I think it would be a pity if it were to go out from this House to the public that noble Lords simply use their cars to get from their homes to this Palace. Indeed, I am sure that many noble Lords would agree with me that their cars are frequently used to visit educational establishments and industrial establishments, to meet immigrants, and to meet various lobbies. One can also mention the number of metropolitan councils which, over the last few weeks, have asked us to go to meet them. Of course, our travel does not compare with that of a Member of Parliament in his constituency, but there is a substantial amount of travelling involved in the proper exercise of our duties in this House and the collection of material for the formation of views to be expressed here.
With that reservation I should also couple the fact that, although we are urged to use public transport rather than cars, a great deal of the public transport in this country has simply been removed. I am sure that the noble Lord, Lord Monson, would agree with me that in the area from which we come, not only are there no trains running in many districts but the train lines have been pulled up and the stations have been sold, so there is no chance of them being renewed. In many rural areas in this country today it is only with the use of a car that you can be mobile at all. However, I fully agree with the main points put forward by the noble Lord, Lord Tordoff, particularly on the conservation issue and bearing in mind the latter years of this decade, when North Sea oil will be running out.
But there is one further issue. The noble Lord pointed out—and I agree with him completely—that this is not a party political matter; but it is a philosophical matter. Is it not obvious that the proposals which have been put forward by the Government are based

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on the concept that those who have most capital shall be given the largest allowances and that those who have least capital shall have their allowances reduced? Is this not a philosophical issue, and is it one which this House wishes to support? I am sure that there are many noble Lords on all sides of the House who do not believe that this philosophy should go forward and have the assent of this House. I believe that this greatly strengthens the case of the noble Lord, Lord Tordoff, whose amendments I fully support.
Lord Ponsonby of Shulbrede: My Lords, I shall be brief because I know that your Lordships have much other business to transact today. As the noble Lord, Lord Tordoff, said in moving his amendment, this is not a party matter. With that we entirely agree, and I have no doubt that if the noble Lord presses his amendment to a Division noble Lords will vote as they see fit on a free vote without the imposition of any Whips.
Having said that, we have a good deal of sympathy with the arguments of the noble Lord, Lord Tordoff, and with the particular reasons he put forward, which have been repeated by many noble Lords. There is the question of the conservation of energy and resources; the question of public expenditure; the question of how the introduction of the high mileage allowance for large cars will be seen by the public. These are questions which will all weigh with your Lordships in deciding whether or not to support the amendment.
As has been said by the noble Lord, Lord Peyton, the report was prepared for Members of the House of Commons who use their cars in a way that is rather different from that in which we use our cars, and there is no reason why we need necessarily follow the decisions taken in another place. We shall all be interested to hear the reply from the Leader of the House.
Viscount Whitelaw: My Lords, I am grateful to noble Lords for all the points they have made. First, I believe it would be right to confirm that I have discussed our position on this side of the House with my noble friend the Chief Whip, and we will of course follow exactly the same procedure as the other parties and have a totally free vote. Therefore, anything that I say is not in any way meant to persuade my noble friends to support me if they feel otherwise. I should like to make that absolutely clear.
I will turn now to some of the points which have been made. My noble friend Lord Morris raised the point about the comfort of the elderly in a large car. Obviously that is a point which will weigh with your Lordships. The noble Lord, Lord Jenkins, did not seem to give a particularly good reason against large cars. After all, he did have an option, which he did not appear to exercise: that is, not to run into any cars at all, large or small. But as he has been in the habit of doing so, perhaps it became a better reason.
The noble Lord, Lord Mulley, raised the point about a free vote and also commented that there was no particular reason why we should follow another place. The same point was made by the noble Lord, Lord Ponsonby of Shulbrede. They commented that Members of another place use their cars differently, for
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different purposes, and for constituency work, in a way that we do not. My noble friend Lord Peyton, who speaks with all the authority of the author of the scheme—even if, for reasons I did not appreciate, he was not given prime authorship when it was published— pointed out that he had been asked to look at the case for allowances for Members of another place and not for Peers.
The noble Lord, Lord Somers, referred to the difficulty of parking cars and the expense involved. The noble Lord, Lord Monson, said that we should be particularly careful of the taxpayers' interests. Of course, he must be right in that regard, and I fully accept the point he made. The noble Lord, Lord Hatch, seemed to introduce some political concepts into his statement which had not occurred to me. But as the noble Lord will realise, I am very much a nonpolitical animal. Nevertheless, he made it clear that he supports the amendment of the noble Lord, Lord Tordoff.
I have to say that we have not yet discussed the amendment concerning mileage rates, which obviously we shall come to, but I must agree that these amendments would save the taxpayers' money. Although I am advocating another course, it would be quite wrong of me not to admit that, on balance, the amendments would do that. People with large cars would lose a considerable amount, and people with small cars would gain. On balance, I think there would be a saving of the taxpayers' money.
Lord Monson: My Lords, I am very grateful to the noble Viscount for giving way. Can he say anything in reply to my point about magistrates and county councillors, who receive only 19·1 pence per mile for a car of more than 2·3 litres compared with the 39 pence proposed by the Government?
Viscount Whitelaw: My Lords, it was simply that the arrangements put forward for Members in another place and which we were seeking to copy here, were based on proposals made by my noble friend Lord Peyton and his committee. There are inevitably many different comparisons which can be made, and the noble Lord very properly makes yet another one.
Clearly, many of your Lordships feel that it is right not to appear to be using larger cars at this time, and to support smaller cars. That is a very proper approach; but I must say something on a rather broader front. In seeking to do my best for your Lordships and this House as far as various arrangements are concerned, it would be wrong if I did not say that it does help, from time to time, to work with another place. In some cases, it does help to follow their practices. To break away from those practices is perfectly reasonable if that is what your Lordships decide, but that does have disadvantages as well as, perhaps, an advantage on this occasion.
In my position as Leader of this House, and with the many different negotiations I have to make, it would be quite wrong of me not to register that point. But having done so I return to the point that this is entirely a matter for your Lordships personally to decide. I have made the points that I felt it right to make as Leader of the House, but I leave it entirely to your Lordships to decide what you wish.
Lord Tordoff: My Lords, with typical generosity the Leader of the House has mentioned that on the other side of the House as well as on this side there is to be a free vote. I welcome that most generous statement. I will deal first with the final point he made about breaking away from the practices of the Commons. I accept that the noble Viscount works hard on our behalf to ensure that we have a fair crack of the whip. But it does not seem to me that in changing on this occasion we would be doing anything other than that which was rational on the arguments which have been deployed. I am sure that can be explained to Members of another place. I am grateful to the noble Lord, Lord Peyton, in that respect, because we should make it quite clear that anything we do is no reflection on what may have been done in another place. If we were to do something different, it is because our circumstances, in respect of this particular issue, are quite different.
I take the point made by the noble Lord, Lord Somers, about parking. Of course, we are not trying to force everyone to use public transport. We are trying to encourage people to use public transport; but it is recognised that we in this House are of different ages and of different vitalities. This bears on the point made by the noble Lord, Lord Morris. The worst accusation that has been made against me today is that I am too young. That applies only in this House: outside, my children take a very different view.
We recognise that there are many people coming to your Lordships' House who need to have adequate private transport. I do not believe that in passing this amendment we would seriously restrict the people who need that kind of transport. It is on that basis, and encouraged by the support I have received from all sides of the House, that I press my amendment.
4.18 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 128; Not-Contents, 64.

DIVISION NO. 1

CONTENTS

Airedale, L.

Dean of Beswick, L.

Aldenham, L.

De Freyne, L.

Alexander of Tunis, E.

Diamond, L.

Amherst, E.

Donaldson of Kingsbridge, L.

Ampthill, L.

Elliot of Harwood, B.

Annan, L.

Elystan-Morgan, L.

Attlee, E.

Ezra, L.

Avebury, L.

Falkland, V.

Aylestone, L.

Foot, L.

Banks, L.

Gallacher, L.

Beaumont of Whitley, L.

Gladwyn, L.

[Teller.]

Gosford, E.

Beswick, L.

Graham of Edmonton, L.

Birk, B.

Greenway, L.

Blanch, L.

Grimond, L.

Blease, L.

Grimthorpe, L.

Boston of Faversham, L.

Haig, E.

Bottomley, L.

Hall, V.

Buckmaster, V.

Hampton, L.

Carmichael of Kelvingrove, L.

Hanworth, V.

Cathcart, E.

Hatch of Lusby, L.

Collison, L.

Hayter, L.

Craigavon, V.

Henley, L.

Dacre of Glanton, L.

Hooson, L.

Darcy (de Knayth), B.

Howie of Troon, L.

418

Hughes, L.

Peyton of Yeovil, L.

Hunter of Newington, L.

Phillips, B.

Hylton-Foster, B.

Ponsonby of Shulbrede, L.

Ilchester, E.

Rankeillour, L.

Ingleby, V.

Rea, L.

Inglewood, L.

Renton, L.

Irving of Dartford, L.

Renwick, L.

Jacobson, L.

Romney, E.

Jacques, L.

Ross of Marnock, L.

Jenkins of Putney, L.

Rugby, L.

Jessel, L.

Ryder of Warsaw, B.

Kilmarnock, L.

Sainsbury, L.

Kintore, E.

St. Davids, V.

Lawrence, L.

Saltoun, Ly.

Leatherland, L.

Seear, B.

Listowel, E.

Seebohm, L.

Llewelyn-Davies of Hastoe, B.

Serota, B.

Lloyd of Hampstead, L.

Somers, L.

Longford, E.

Spens, L.

Lothian, M.

Stamp, L.

McCarthy, L.

Stedman, B.

McNair, L.

Stewart of Alvechurch, B.

Mais, L.

Stewart of Fulham, L.

Marsh, L.

Stoddart of Swindon, L.

Maude of Stratford-upon-

Stone, L.

Avon, L.

Strabolgi, L.

Mayhew, L.

Strathspey, L.

Milford, L.

Strauss, L.

Milverton, L.

Swinfen, L.

Molson, L.

Taylor of Blackburn, L.

Monson, L.

Teviot, L.

Mowbray and Stourton, L.

Tordoff, L. [Teller.]

Moyne, L.

Tranmire, L.

Mulley, L.

Underhill, L.

Newall, L.

Walston, L.

Nicol, B.

Wells-Pestell, L.

Norfolk, D.

Whaddon, L.

O'Brien of Lothbury, L.

White, B.

Oram, L.

Willis, L.

Pender, L.

Winterbottom, L.

NOT-CONTENTS

Alport, L.

Lane-Fox, B.

Avon, E.

Lauderdale, E.

Bauer, L.

Long, V.

Beloff, L.

Macleod of Borve, B.

Belstead, L.

Margadale, L.

Bessborough, E.

Masham of Ilton, B.

Boothby, L.

Merrivale, L.

Boyd-Carpenter, L.

Morris, L. [Teller.]

Broxbourne, L.

Northchurch, B.

Bruce of Donington, L.

Onslow, E.

Caithness, E.

Orkney, E.

Cameron of Lochbroom, L.

Quinton, L.

Campbell of Croy, L.

Sandys, L.

Cockfield, L.

Savile, L.

Cork and Orrery, E.

Selkirk, E.

Cox, B.

Sempill, Ly.

Cullen of Ashbourne, L.

Skelmersdale, L.

Daventry, V.

Strathcarron, L.

Denham, L.

Sudeley, L.

Denning, L.

Swinton, E.

Eccles, V.

Teynham, L.

Elton, L.

Thomas of Swynnerton, L.

Erroll of Hale, L.

Tonypandy, V.

Faithfull, B.

Torphichen, L.

Gardner of Parkes, B.

Trefgarne, L.

Glanusk, L. [Teller.]

Trumpington, B.

Hailsham of Saint

Vaux of Harrowden, L.

Marylebone, L.

Vivian, L.

Halsbury, E.

Westbury, L.

Home of the Hirsel, L.

Whitelaw, V.

Killearn, L.

Wise, L.

Kinnaird, L.

Young, B.

Kinnoull, E.

Resolved in the affirmative, and amendment agreed to accordingly.
4.28 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I think I understood the noble Lord, Lord Tordoff, to say that Amendments Nos. 2 to 6 would be moved en bloc.
Lord Tordoffmoved Amendments Nos. 2 to 6: [Printed earlier: col. 409.]
On Question, amendments agreed to.
Lord Tordoffmoved Amendment No. 7:
In paragraph (3), line 3, leave out "10,000" and insert "5,000".
The noble Lord said: My Lords, I shall be brief. I seek to move Amendment No. 7 and at the same time speak to Amendment No. 8.
Amendment No. 8: In paragraph (3), line 4, leave out "20,000" and insert "10,000".
What I am doing here is questioning the Government on this limit of 20,000 miles for the cutoff point. It seems extremely high, as someone has already said in the earlier debate. The amount of contribution to the depreciation charges that are obtained at 20,000 miles a year is very high in relation to the total cost of the car. I should have thought that a lower figure, again, was more appropriate for your Lordships' House because of many of the suggestions that were made in the earlier debate. It is essentially a probing amendment. I should be grateful if the Government could indicate whether they will at some stage consider reducing the level. It seems to me to be excessive in relation to your Lordships' needs. I beg to move.
Viscount Whitelaw: My Lords, clearly your Lordships' decision on the other amendments raises questions for this one as well. At this stage I should like to suggest to the noble Lord, Lord Tordoff, that the arrangements that have been made so far as mileage is concerned are slightly important from the point of view of trying to make reasonable recompense for the actual costs involved. The arrangement affects that. For that reason, I should prefer to leave the matter as it stands, naturally having accepted what has been done on the other amendments. If having done that I have a chance to look into the matter against the background of the other decisions, I am perfectly prepared to do so.
Lord Tordoff: My Lords, I am grateful to the noble Viscount. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
On Question, Whether the Motion, as amended, shall be agreed to?
Lord Ferrier: My Lords, may I point out that there is no provision in the regulations for hire cars? There are a number of Peers who by virtue of living a great distance from an airfield, and/or age, and/or infirmity, are compelled to hire a car. Perhaps my noble friend could apply his mind to making a provision whereby the cost of hire cars in such circumstances can be defrayed.
Viscount Whitelaw: My Lords, my noble friend Lord Ferrier has asked about the arrangements for Peers who are unable to drive their own cars and have to hire a car. Perhaps I may remind him that in July last year the House agreed that Members of this House who are disabled should be able to recover additional expenses for attendance at this House incurred by them on account of their disablement. These additional expenses in hiring a car can therefore, subject to the discretion of the Leave of Absence and Lords' Expenses Committee, be met under the existing rules. I believe that they are now, and they certainly will be in the future.
Lady Saltoun: My Lords, it is not just a question of those who are disabled having to hire a car. To give an example, I live 45 miles from Aberdeen airport, where there is only parking in the open. I can drive my car there, and, if it is not required at home, leave it there during the week between April and October. But in that part of the world I cannot possibly do so between October and April, because when I came back it would be frozen up. Therefore in the winter months I am obliged to take a taxi. I should very much like to know what the rules and regulations are.
The Earl of Kintore: My Lords, we can be paid for the trip there and back once a week, if one has only one car and no transport whatever otherwise than that. That applies if one has to take the car and your wife has no car to use until you return. That problem has been recognised. and there is this provision once a week. That would be fine if we could limit our trips to attend the House to only once a week. but that is not the case. I live a long way from an airport, and the second time that one makes the trip one has to pay for it oneself. I do not think that that is very logical, nor awfully just.
Viscount Whitelaw: My Lords, in answer to the noble Lady, Lady Saltoun, and my noble friend, of course this matter can he looked into again by the Leave of Absence and Lords' Expenses Committee, and I will undertake that it should be. I believe that the matter has been looked at before and did not find favour on that occasion, but that does not mean that it cannot be looked at again, and that will certainly be done.
Motion, as amended, agreed to.

British Railways (No. 2) Bill
Read a third time, and passed.

Water Supply in Wales
4.35 p.m.
Viscount Long: My Lords, with the leave of the House, I shall repeat a Statement about the water supply situation in Wales which is now being made in another place by my right honourable friend the Secretary of State for Wales. The Statement is as follows:
"Since February of this year rainfall in the Principality has been abnormally low, and over the whole of the Welsh Water Authority area has only been 44 per cent. of the long-term average. The authority has been monitoring the water supply

421
situation carefully since Easter and taken measures to conserve stocks of water held in reservoirs by application for drought orders to reduce compensation water discharges from reservoirs and to increase abstraction from rivers. The authority has also sought to reduce consumption by banning the use of hosepipes and garden sprinklers. In spite of these measures reservoir levels have continued to fall and further action will be necessary to conserve the remaining stocks of water until there is sufficient rainfall to replenish them. Nobody can be certain when this will be, but meteorological records point to substantial rain—or so it is hoped—by the third week of October, and the WWA have formulated their emergency plans accordingly.
"The areas most seriously affected are South East Wales; Preseli, with a population of about 40,000 people; and the Lleyn Peninsula, where the influx of summer tourists more than doubles the population to about 66,000. However, the shortage of water in South East Wales gives the greatest cause for concern, because some 1 million people are involved. The WWA have therefore set up a Drought Liaison Committee for South East Wales with representatives from the local authorities, the health authorities, my department, the CBI, NFU, FUW and other bodies. The committee met last Monday when the WWA presented the facts about the supply situation and outlined their plans for meeting the shortage. In the first instance there will be a ban on the non-essential users of water such as automatic car washing plant, and a drought order has been signed to put this into effect. If the dry weather continues the WWA will then need to ensure a further reduction in consumption to about 50 per cent. of normal from 1st September. They intend to do this by shutting off supplies to domestic consumers for up to 17 hours per day; industrialists and agriculturists will be relied upon to make their own plans for reducing consumption by a similar amount. The organisations represented on the Drought Liaison Committee now have a month to consider the implications of these measures and to make their own plans accordingly. Further meetings of the committee will take place as necessary to resolve any outstanding problems before the WWA begin to shut off supplies.
"Problems of varying severity exist in other parts of the WWA area and appropriate measures are being taken to limit consumption and to make the best use of the available stocks of water. The powers available under the Drought Act 1976 are being and will continue to be used to the full, and there is close contact between the WWA and my department in order that I am kept regularly informed of the situation. Finally, I should like to pay tribute to the great efforts which are being made by WWA personnel to overcome the problems caused by the exceptionally dry weather of recent months."
My Lords, that concludes my right honourable friend's Statement.
Lord Elwyn-Jones: My Lords, we are grateful to the noble Viscount, Lord Long, for repeating the Statement. Is he aware that there is acute concern, especially in certain parts of Wales, about the effect of
422
the drought? As the Statement which he has read makes clear, south-east Wales is the area worst affected, and of course is the most populous and heavily industrialised part of Wales. Does the noble Lord agree that the position there is critical and indeed that a potentially serious public health hazard exists? Is it not the case that if we do not get rain in substantial quantities, the storage reservoirs in south-east Wales will run dry by the end of September?
The Statement refers to the Drought Act. Can the noble Lord say whether the Welsh Water Authority have submitted applications for an order under Section 2 of that Act which would enable the authority if necessary to move towards rota cuts which would enable limited supplies to last until the end of October? Is the noble Lord aware that there is great public concern about these cyclical droughts in areas of high rainfall like those in Wales? Will he say whether the Government have any long-term plans to deal with them? Can he say additionally how the Wye transfer project is working and how much longer it will take to complete? Can he confirm that after that project is completed it will make the south-east area safe for 10 years?
Finally, is the noble Lord satisfied that the Government are giving adequate financial encouragement to the Welsh Water Authority? Is it not the case that loan allocations offered by the Welsh Office to the authority have been reduced while the authority's own capital expenditure has increased? Will the Minister give an assurance that these policies, which we take to be short-sighted, will be reversed?
Lord Hooson: My Lords, I also should like the thank the noble Lord for making the Statement in this House. Is he aware that the most alarming part of his Statement are the words "meteorological records point to rain by the third week of October" and the Welsh Water Authority have formulated their emergency plans accordingly? In the light of our experience is not there something to be said for drafting in Mr. Denis Howell so that we get rain rather earlier than that?
However, on a more serious note, perhaps I may say this. In view of the emergency in which we found ourselves in the long, dry summer of 1976, does not the existence of the present emergency in a land which, despite the present drought, still has a great deal of water around, point to the absence of expenditure on infrastructure and the means of taking water from the areas that have it to the areas—obviously those in south-east Wales— which are deeply affected? This is an industrial area with a high population. Does not the whole situation point to a failure to expend the necessary money to improve our infrastructure? Would the noble Lord not agree that there is something vastly wrong with the situation that Britain, which has experienced droughts of this kind before, is now in 1984 finding itself with droughts not only in Wales but in other parts of the country simply because various areas have not been linked up to enable water to be brought?
Viscount Long: My Lords, I am most grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Hooson, who recognise that the

423
situation in south-east Wales is very serious. It is an alarming situation at the moment as we are approaching the holiday season and there are many more tourists going into that area. Both noble Lords' questions have hinged on the question of expenditure and why this situation has come about. The noble and learned Lord mentioned the pumping stations and the laying of further pipes. I think he was really referring to a sort of grid system. Perhaps I could answer him in this way. The external financing limit of the Welsh Water Authority is the amount which the authority can raise from outside sources. This is the primary control exercised by the Government over capital expenditure of the authority. In the most recent years, the external financing limits and the extent to which they have been utilised by the authority were as follows. The limit set by the Government to the Welsh authority was £25.25 million in 1982–83 and the amount that the authority utilised was only £22.6 million. In 1983–84 they were again given £23 million and only used £18.6 million. So they have not used their full quota of finance. Therefore, they really could perhaps have done a little more.
In arriving at their capital expenditure in order to operate the pumping stations and so on—and there are many items in this—the capital expenditure plan for resources available to the authority consists not only of the external financing limit but also of the amount that they consider can be raised from the consumer charges assisted by savings that the authority have been achieving on their operating costs. By these means the authority have been able to undertake a capital expenditure programme in the past two years as follows. (I am reading out these expenses because it may sound to noble Lords as if nothing has been done and the Government have not given any money, whereas in fact the money is there.) The planned expenditure in 1982 and 1983 was £47 million. The actual expenditure in 1982–83 was £55.7 million. In 1983–84 £47 million was planned and the actual expenditure was in fact £50 million.
The noble and learned Lord mentioned a health hazard. If I may say so, the hospitals are quite safe. The sewage farms, which I think were also mentioned, as, equally, firemen, are provided under the Act with the ability to have and sustain water. The orders to which the noble Lord referred have been applied for for the south east under Section 2. So that is already in operation. There are many orders being applied for for many areas at this moment.
I hope that I have been able to satisfy the noble Lords. It is a very serious situation. We are hoping upon hope that by October, if not tomorrow, we shall get more rain in the south east. The situation is extremely serious.
Lord Nugent of Guildford: My Lords, may I ask my noble friend a question on a subject which was mentioned by the noble and learned Lord opposite? That is about the Wye/Usk Transfer Scheme. I recollect in 1976 urging the Welsh Water Authority to proceed with an emergency type of transfer scheme because that scheme would substantially alleviate the water shortage in a large part of South Wales. Would my noble friend please tell us whether or not that
424
scheme has now been completed? Is it now in full operation? Is he aware that that is capable of transferring very large quantities of water from the surplus areas to the shortage areas?
Viscount Long: My Lords, I know my noble friend was a great authority as regards the water authority, and specifically on the Wye transfer scheme to which he referred. The former river authorities had made a start in 1971 by seeking outline planning permission for a pumping station at Monmouth to transfer water from the Wye to the Usk. The justification for this scheme, as the noble Lord has said, was that demand for water in the area was expected to increase and supply would not be able to meet the additional demand in dry years—though it would be able to do so in wet years.
The Welsh Water Authority received outline planning permission for the pumping station at Monmouth in 1976, when they were considering a further report on the scheme. The 1976 drought emphasised the need to develop the scheme and the construction of a pipeline from Monmouth to Olway Brook was started.
My Lords, I am afraid my brief is rather faint at the moment so I shall have to confirm the names to your Lordships later. There is probably water spilt over my brier. So. if I may say so, the information is in the pipeline.
Lord Elwyn-Jones: My Lords, is it the case that a tunnel has been erected but no pumps? What has been happening in the last six years?
Viscount Long: My Lords, I shall have to find out where the pumps have got to but I am sure they are not far away.
Lord Hooson: My Lords, I wonder whether the noble Viscount will clear up one point. He gave a figure for the 1983 capital expenditure and the capital available. From the figures that the noble Viscount quoted. it seemed to me that there was a shortfall of several millions in expenditure and capital available. Has any explanation been given for this by the Welsh Water Authority?
Viscount Long: My Lords, I have not had an explanation of it as yet, but I shall certainly find out and write to the noble Lord.
Lord Soames: My Lords, all this sounds a very sorry story. Given the situation that now exists, is it out of the question that some of the water that is being sold from water authorities that have plenty to spare, I believe, to Gibraltar, might be sold to South Wales?
Viscount Long: My Lords, is my noble friend referring to water in bottled form or in barrels?
Lord Soames: In large tankers, my Lords. I am surprised that the Minister does not know.
Baroness Phillips: My Lords, I wonder if I might help the Minister. It is a litle hard since he is obviously not wholly conversant with the entire situation.

425
Throughout the whole of my lifetime, I have heard that at this period of the year, poor Wales is always having its water supply cut off. There have been many debates in your Lordships' House and I recall the noble Lord, Lord Energlyn, describing how there was surplus water in disused pits that could be quickly and quite cheaply utilised. I also recall an occasion when we debated the reservoir that was to hold water for the Manchester area. It seems to me therefore that there must be remedies that could be brought about. May we ask that there should be an emergency debate fairly quickly when the House resumes after the recess, because this is an important matter? It comes up perennially.
Viscount Long: My Lords, I am grateful to the noble Baroness. Some of the pits are being used. Some cannot be used because they contain corrosive water that is damaging to machinery. But they certainly are being used and those that have not been used as yet are being brought into action.
The Earl of Radnor: My Lords, does my noble friend not feel that perhaps the answer might be to incorporate in Prayers in your Lordships' House a prayer for rain in South Wales?
Viscount Long: My Lords, yes. If you care to come to Prayers, no doubt we shall get them from the right reverend Prelate.
Lord Soames: My Lords, in the meantime, will the noble Viscount answer my question?
Viscount Long: My Lords, if I am right, my noble friend was referring to the exporting or importing of water?
Noble Lords: Exporting.
Lord Soames: My Lords, I am sorry but I have made clear that there are tankers— ships —carrying water in large quantities at the moment to Gibraltar. It sounds a very profitable business. However, could not some be diverted to South Wales?
Viscount Long: My Lords, I am interested in my noble friend's question. I shall ask why it has not been diverted.
Lord Elwyn-Jones: My Lords, is the noble Viscount aware that when a serious situation similar to this was discussed when I was a Member of another place, one honourable Member who, I think, is now a Member of your Lordships' House, said that water is dynamite in Wales? If this goes on, it will be.
Viscount Long: My Lords, we had a debate just now on noble Lords' expenses for cars. No doubt, the Welsh contingent will be buying new cars with the money that they have got out of water sales.
Lord Ezra: My Lords, is it not extraordinary that this problem should recur regularly in certain parts of the country every time we have the slightest spell of warm weather? Why do we not have a water supply system that can supply water when people need it?
426
What I cannot understand from what the noble Viscount had to say in answer to previous questions put by noble Lords was that the Welsh Water Authority has actually underspent its allocation when there is obviously a crying structural need for greater supplies of water in this part of South Wales. Can we not have an assurance that as a result of this situation —on which we are glad to learn that urgent action is being taken—an urgent study will also be made about how a recurrence can be avoided and what steps will be taken by the Welsh Water Authority and by the Government and whatever other authorities may be involved to make sure that we do not hear about this again in this House?
Viscount Long: My Lords, the noble Lord, Lord Ezra, is quite right. I feel that there is a great deal of sympathy throughout the House on this question and the reasons why we are once again looking at restrictions and orders going out on the shortage of water. I shall inform my right honourable friend and ask him to see whether we cannot save any further situations of this kind in the future. I have to say, however, that Mother Nature does strike occasionally, say in 50 years or 100 years. It was only 1976, and now poor Wales has had a drought again. All we hope is that by the time of the next drought 500 years or 1,000 years hence, or whatever it is, we shall have the pumping station and the reservoirs situation right.
Baroness White: My Lords, is the noble Viscount aware that Wales does not sell water to Gibralter? That is the North-East of England. But we do sell water from the Severn Trent authority to the city of Birmingham, not Manchester. Would it be possible, and have any arrangements been made, to co-ordinate the water supply of Birmingham so that it might economise, too? Is it possible to divert anything from the Severn Trent authority to the Welsh Water Authority?
My second question is this. Is the noble Viscount aware that, as a consumer in Cardiff, I hope very much that the Welsh Water Authority will not delay too long some form of control of water consumption? It seems to me that they are being over-sanguine if they are leaving it until the begining of September.
Viscount Long: My Lords, I cannot answer on the point of how quickly any emergency can come into being. But my right honourable friend, and, indeed, as I have said, the committee working on this to find out the way to deal with the shortage of water have to come back by 1st September and will probably be back before then, because this is very serious. As to the transfer of water and selling it from one part of Wales to another, I should like to write to the noble Baroness because I could not answer at this stage.

Police and Criminal Evidence Bill
4.56 p.m.
Further considered on Report.
Clause 36 [Duties of custody officer before charge]:
Lord Hutchinson of Lullingtonmoved Amendment No. 78A:
Page 31, line 15, at end insert ("in the presence of a solicitor if he so requests").
The noble Lord said: My Lords, this is not an amendment that depends on the intervention of the Almighty for its solution. In moving the amendment, I should like to speak also to Amendments Nos. 81 and 85, which seek to insert similar words in similar circumstances, and also to refer, as I must, to Amendment No. 115.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, will the noble Lord forgive me? I think that there should be the letter A after each of the numbers he has mentioned.
Lord Hutchinson of Lullington: My Lords, I am much obliged. There is an A after the Nos. 81, 85 and 115.
Amendment No. 81A: Page 38, line 35, at end insert ("in the presence of a solicitor if he so requests").
Amendment No. 85A: Page 41, line 2, at end insert ("in the presence of a solicitor if he so requests").
Amendment No. 115A: Page 55, line 3, at end insert—
("(3A) An officer of at least the rank of inspector may give a notice under subsection (3B) below if he has reasonable grounds for believing that any act likely to be done by a solicitor consulted by a person in the exercise of the right conferred by subsection (1) above—

(a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or

(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or

(c) will hinder the recovery of any property obtained as a result of such an offence.

(3B) A notice under this section is a notice stating the reasons why the officer wishes the solicitor to refrain from doing a specified act for a specified period not exceeding 36 hours from the relevant time.
(3C) An officer may give a notice under subsection (3B) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.
(3D) If a notice under subsection (3B) above is given—

(a) the detained person shall be informed of it; and

(b) it shall be noted on his custody record.

(3E) The duties imposed by subsection (3D) above shall be performed as soon as is practicable.
(3F) If the reasons for giving a notice under subsection (3B) above shall cease to subsist before the period specified in the notice has expired, the officer giving the notice shall so inform the solicitor as soon as is practicable, and thereupon the notice shall cease to have effect.
(3G) So long as a notice under subsection (3B) above remains in effect, the solicitor to whom it has been given shall not be treated as being under any duty to his client to do any act mentioned in the notice.").
This is a short but crucial amendment that to a degree foreshadows a later debate that we shall have on Amendment No. 131 of the noble and learned Lord, Lord Scarman, and Amendment No. 139, to be moved by the noble and learned Lord the Lord Chancellor.
Amendment No. 131: After Clause 73, insert the following new clause:
("Improperly obtained evidence.
.—(1) If it appears to the court in any proceedings that any evidence (other than a confession) proposed to be given by the
428
prosecution may have been obtained improperly, the court shall not allow the evidence to be given unless—

(a) the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully and in accordance with a code of practice (where applicable) issued, approved, and in force, under Part VI of this Act; or

(b) the court is satisfied that anything improperly done in obtaining it was of no material significance in all the circumstances of the case and ought, therefore, to be disregarded; or

(c) the court is satisfied that the probative value of the evidence, the gravity of the offence charged, and the circumstances in which the evidence was obtained are such that the public interest in the fair administration of the criminal law requires the evidence to be given, notwithstanding that it was obtained improperly.

(2) For the purposes of this section, evidence shall be treated as having been obtained improperly if it was obtained—

(a) in breach of any provision of this Act or of any other enactment or rule of law; or

(b) in excess of any power conferred by or obtained under this Act or any other enactment; or

(c) in breach of any provision of a code of practice issued, approved, and in force under Part VI of this Act; or

(d) as a result of any material deception in obtaining or exercising any power under this Act or any other enactment.").

Amendment No. 139: After Clause 75, insert the following new clause:
("Exclusion of unfair evidence.
.—(1) Where in any proceedings the prosecution proposes to rely on evidence which has been obtained from an accused person, the court may refuse to allow the evidence to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would be so prejudicial to the fairness of those proceedings that the court ought not to allow it to be given.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.").
At the Committee stage—
Lord Elton: My Lords, I hope that I am not being a nuisance but I think that the noble Lord will agree that he will also be speaking to Amendments Nos. 116 and 118, which are part of a group and which should appear on the Order Paper at this point.
Amendment No. 116: Page 55, line 4, leave out subsections (4) to (18).
Amendment No. 118: After Clause 57 insert the following new clause:
("Questioning of arrested juveniles.
.—(1) An arrested juvenile shall only be questioned in the presence of an appropriate adult who is not a police officer subject to subsection (4) below.
(2) Subject to subsection (3) below, an arrested juvenile shall be entitled, if he so requests. to appoint the appropriate adult person of his choice who may be present during questioning in accordance with subsection (1) above.
(3) An 'appropriate adult person' may include any person so informed under section 55 of this Act, or any person so informed under section 54 of this Act, or any solicitor.
(4) Where any such adult persons are unavailable or unavailable within reasonable time, any other adult person who is not a police officer must be present in accordance with subsection (1) above.").
Lord Hutchinson of Lullington: My Lords, that is so. I am much obliged. At the Committee stage the noble and learned Lord, Lord Denning, said that this, in his opinion, was the most important part of the Bill because it introduces a new concept into English law, the statutory power to detain someone simply for the purpose of questioning him, that is, to detain him in

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custody in order that he may be questioned. Your Lordships know that on Clause 36(2) we were involved mainly at the Committee stage with the words,
"to obtain such evidence by questioning him".
Your Lordships decided on a Division to retain those words, and this amendment adds to them, at the end of subsection (2):
"in the presence of a solicitor if he so requests".
Amendments Nos. 81A and 85A say the same thing in relation to later stages, when permission has been given for later and further and extended custody.
I should like to emphasise, particularly for those noble Lords who are not lawyers and are genuinely concerned to see, in no party way, that the balance between giving the police essential powers and preserving human rights is properly kept, what exactly this clause is providing in the way of powers. It means that a suspect who has the fundamental right that we have already heard so much about—the privilege against self-incrimination; that is, the right of silence—may be detained in a police station in order to be questioned so that evidence can be obtained from him; in other words, using ordinary language, in order to try to get him to confess, to get him to make an admission.
I am sure all your Lordships would agree that, with this Bill giving that power statutorily for the first time, if ever safeguards were paramount they are paramount in such circumstances. The essential safeguard that this amendment seeks to provide is the central one that if he is to be interrogated then it should be done in the presence of a solicitor if he wishes to have one. No doubt other noble Lords, who I hope will support this amendment, will put forward further reasons, but for me the essential reason for having a solicitor is this. Over recent years there has been a steady series of unacceptable miscarriages of justice. These miscarriages of justice have besmirched the fair face of the criminal justice system, and they are of the deepest concern to all those concerned with the criminal law; particularly, if I may say so, to those who have the responsibility of prosecuting in Her Majesty's courts.
These miscarriages of justice have come to light, not through the appeal courts but through outside agencies, and, above all, through the activities of Justice, the British section of the International Commission of Jurists. As your Lordships know, at the moment the chairman is my noble friend Lord Foot. They have come to light through the activities of Justice in particular, but also through the activities of various media organisations and through individuals such as Mr. Ludovic Kennedy; and on a number of occasions purely and simply because someone has come forward and confessed to a crime for which another person has been convicted and is serving a sentence of imprisonment.
What has been the common denominator of these miscarriages of justice? In almost every single one, for some reason or other, there have been false confessions, false admissions. I am not going to enumerate a large number of them, but your Lordships will be familiar with the very latest one, the case of Mycock, which only last week was decided by the Court of Appeal on a reference, the Court of Appeal having dismissed the appeal 16 years ago. That
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appeal has now been allowed. That defendant has been in prison for 16 years. The appeal was allowed on the basis that the scientific evidence was no longer reliable. But in that case there was a confession. Of course, it is not on the basis that the confession was false that the appeal has been allowed, but the fact of the matter is that the confession must have been false.
Other cases include the Confait case, which has given rise to the whole of this Bill and is the reason that we are here. In that case, Sir Henry Fisher found that the questioning of one of the accused was unfair and oppressive. As your Lordships well know, in the Evans case a man was hung because he made a confession which after his death was discoverd to be a false confession. The case of Patrick Meehan is another instance where there were malpractices in the investigation in the police station; and your Lordships will know about the Luton murders, referred no less than five times to the Court of Appeal. In that case, statements and the contents of the statements were suppressed in the police station.
These miscarriages of justice surely must come to an end. They all have this common denominator, that if those accused persons had had a solicitor present when they were in the police station, in custody, probably none of those miscarriages of justice would have taken place. I know that my noble friend Lord Foot can speak with much more authority than me about the many other miscarriages which Justice have brought up over the last 10 or 12 years, nearly every one of them due to false confessions.
It will be said—it has already been said—that the code and Clause 57 of the Bill give a statutory right to legal advice. It is excellent that this Bill provides statutorily for that. But, of course, that same right can be removed and suspended at the say-so of the police if certain conditions are fulfilled. The right is nothing new. For a long time there has been the right, under the Judges' Rules, to legal representation in these circumstances. But, again, in the Judges' Rules power is given to the police to suspend the right in certain circumstances. It is that suspension that has given rise to many of these false confessions. At the moment, in the Bill, the right can be suspended if a senior police officer—I welcome that, because before it was any police officer—has reason to believe that harm might come to evidence, that other suspects might be alerted or that the recovery of property might be hindered. These are all reasons which can so easily be invoked in almost every serious case where a person is charged.
Why should this amendment not be accepted by the Government? At the Committee stage the noble Lord the Minister conceded that there was a strong case for an unqualified right to legal representation. He pointed out that it exists in many other Western countries. The Royal Commission found that the argument was finely balanced between the two views, as to whether or not there should be power to suspend the right. In the end, the Royal Commission came down in favour of that power being granted but said the officer involved should be no lower in rank than a sub-divisional commander.
The noble Lord the Minister said in Committee that the only reason for retaining this power to suspend the right was the risk of inadvertent damage being done, not by a dishonest solicitor but by an ordinary,

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straightforward, honest solicitor who might inadvertently give information which it was crucial should not go outside the police station. We deal with that matter in Amendment No. 115A. Your Lordships will see when we come to deal with that amendment that we have set out a code whereby the solicitor can be formally asked by the officer in the police station and there will be set down what it is that the officer requests the solicitor not to do or not to divulge, or the person with whom he is not to get in touch.
So the situation will be perfectly clear to the solicitor when he goes into the police station and when he is present during the interrogation. I am thinking particularly of those rare occasions when, for example, there is concern about tipping off another alleged co-defendant or—to take the example which the noble Lord the Minister put forward in Committee —there could be a kidnap case in which the kidnapped person might be murdered if information got out. In those circumstances there is not a solicitor in the country who would not of course observe the officer's request. That is set out in Amendment No. 115A, and I suggest that it is the complete answer to what has been put forward as the only reason for not giving this right to a person who is in custody in the police station.
It would mean of course that the solicitor would bear and carry the responsibility. The solictor is an officer of the court, as are members of my own profession, and day in and day out we have to make decisions as regards which very often we have to put considerations of justice above our duty to our client. It is not a decision which is particularly difficult to reach. We have to make it over and over again. It is very like the type of decisions that doctors have to make in certain circumstances. Indeed, it is like the decisions that all professsional men have to make. Solicitors are covered by disciplinary rules and regulations in the same way as police officers are covered. This Bill is put forward on the basis that police officers act honestly and that if they do not do so they are liable to disciplinary sanctions. They are dealt with in the same way as solicitors.
Finally, the noble Lord, Lord Allen of Abbeydale, the noble Lord, Lord Renton, and the noble Baroness, Lady Ewart-Biggs, have all shown concern about what happens to young people, children and those who are in any way mentally unwell, when they are taken to a police station. They were concerned that all of them ought to have an adult with them when they are questioned. I support that proposition 100 per cent. But I would point out to them and to those who are to support them in their amendments, that the suspect—who in many, many cases is inadequate, fearful and so on—is just as much in need of protection in many cases as are those particular classes of people. Therefore, for those reasons I beg to move this amendment and I ask your Lordships to support it.
Lord Denning: My Lords, I am against the amendment. I can understand the anxiety of my noble friend Lord Huthchinson about cases which have arisen of late in which men have been shown to have been wrongly convicted, and there is also the question of confessions. That, I suggest, has nothing to do with the present clause or amendment. I trust that the
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confessions will be dealt with when we discuss the amendments of the noble and learned Lord, Lord Scarman, and the other amendments which deal with that matter later.
At the moment we are considering the case of a serious crime when the police do not know who committed it and they want to find out, investigate and to make inquiries all round. How far are they to be trammelled by the thought: is the man who they have before them to be able to notify his solicitor and to have his solicitor present, when there is a danger that, if that solicitor is alerted—it may be quite innocently—that solicitor or his clerk may tell other people where the stolen goods are or where the money has gone or they may alert the witnesses, and so on?
There is a good illustration, as I said previously in Committee, in the case of Houghton. In that case £2.5 million was stolen from Heathrow and there was a reward offered of £125,000. A man named Houghton wished to get that reward and he went to the police and said, "I can tell you something about that. I can tell you that £½million of it went to Ireland". The police were most interested. They asked him to make a statement, and he did so. It turned out that the police were a little suspicious because he knew a little too much about it—was he perhaps one of the accomplices himself? So they cautioned him, they took his statement and they did not tell any of his accomplices about it. They did not tell his solicitor. They kept it all to themselves and they kept him incommunicado while they followed up the leads. Those leads led them to Dublin and I think that eventually they got the
£½million back.
Then the question arose before the court as to whether the police had acted properly or improperly and whether indeed Houghton ought to have been questioned in the way in which he was questioned. Lord Justice Lawton in giving the judgment of the court approving, in effect, what had been done by the police—not the law of it—said:
"there was a danger that if Houghton had been allowed visitors whilst at the police station he could have got them to collect the money for him and put it in a place where the police could not get it. A solicitor could have been an innocent channel of communication for this purpose".
It is well known that the criminal fraternity in this country have access to solicitors and it is quite right that they should do so. Many solicitors have clients throughout the criminal fraternity and it is quite right that they should do so. But if a solicitor is told, "Your client Houghton is being detained. He wants to come and see you, but I must give you a notice that I cannot allow it; it is too dangerous", and if it is listened into by his clerk on the telephone or by anyone else, is there not a danger that most important information will be conveyed to accomplices and that other people may be alerted and may make their escape? Is there not a danger of witnesses not appearing? In serious cases of this kind, there is a real danger. I say nothing against the solicitor because he will be honourable and right. He belongs to a profession on which I have placed the greatest value throughout my professional career.
However, there is a danger in these serious cases that, if the police are bound to communicate with the solicitor, somehow or other the information may get round to the accomplices and all the efforts of the police may be thwarted in that way. The safeguard

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against that is given in the clause itself as it stands. The man is entitled to
a solicitor; he is entitled to consult him, save when a superintendent or an officer of higher rank is quite satisfied that that right ought to be held up for a time because of the danger of witnesses diappearing and the money getting away, and all the dangers which such publicity would give to the cause of justice. I suggest that it is one of those cases which illustrates the importance in this day of the investigation of offences and their detection being given priority. For that reason the superintendent or higher rank should be authorised to say, "You will be allowed to see your solicitor, but not for the moment. There are too many dangers involved, and we must continue to make our investigation". On the whole, although it is a most important point, I would be against the amendment.
5.20 p.m.
Lord Mishcon: My Lords, it is indeed an important matter, and all of us will be glad to have had the benefit of the advice of the noble and learned Lord. Possibly it is fitting at this moment that a solicitor stands before your Lordships in order to give another point of view. In the Bill as it stands, this is what we are doing. I ask your Lordships not to think the whole time of a crime similar to that to which the noble and learned Lord referred us, involving millions of pounds worth of gold, or whatever it may be, and obviously being a classic crime of the highest order. Here, under the Bill as it stands, we are considering a serious arrestable offence. We had trouble with the definition of "serious arrestable offence", and the noble Lord the Minister found that he could not give way in regard to the major criticisms that we then made of it. One of the definitions of a "serious arrestable offence" is an offence which, in the view of the police officer concerned, causes a serious financial loss to someone. As we explained, the serious financial loss could be to the widow who has been robbed of her mite; it could be the pettiest theft, but it would still be a serious arrestable offence. It would be something that offended against the conscience of everyone of your Lordships, but obviously when it came before the court it would not be a case of the category to which the noble and learned Lord referred.
Before I dispose of that part of the argument, with the greatest possible respect to the noble and learned Lord, may I raise this point. The noble and learned Lord paid a compliment to my profession, which indeed has always honoured him, and honoured him especially in regard to the care that he took of that profession when he was Master of the Rolls. Referring to the very case which the noble and learned Lord quoted, what does one think a solicitor would have done had he come along at the very moment after this man had been detained at a police station? He was a man who subsequently confessed anyway; and one must not take it for granted that force or some other improper means were used. The noble and learned Lord did not include that dramatic matter in the story; if he had, with his usual wonderful way of telling a story I have no doubt that we would all have appreciated it.
What member of my profession, worthy of his salt, on being told by that man what he in fact told the
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police, would not have advised that his best course was as soon as possible to say all that he knew about the matter and to ensure (as was the case here without the solicitor) that the gold, or whatever it was, was recovered, so that the solicitor, with counsel helping, might do his best for his client in a plea of mitigation? I know of no member of my profession who would not have given that advice, and the end was the same, except that the confession came after some 90-odd hours, whereas the confession might have come 24 hours afterwards if a solicitor, an honourable member of my profession, had been consulted. Therefore, I beg the noble and learned Lord not to use the great weight of his prestige and experience in putting that as a case which ought to persuade your Lordships that the right to see a solicitor should be postponed.
Having said that, let us take it for granted that we are dealing with someone who is innocent. In the Bill as it stands, that person, by way of detention, can be held for 96 hours. In certain circumstances, for up to 36 hours his relatives and friends cannot be told that he is even in a police station. Again, in certain circumstances that same man can be deprived of seeing a solicitor for 36 hours. What are we doing in this legislation in regard to the freedom of the subject? It may be of assistance to the policec—and we want to assist the police—but is not too much assistance being given to the police in these matters and too little to the individual who is scared inside a police station? I put it perfectly bluntly to your Lordships: he is scared out of his life, with no chance of finding out his legal rights, with no chance of even his family knowing that he is there. These are the rights that we are giving to the police.
However, let us concentrate on the solicitor. I agreed with every word that the noble Lord, Lord Hutchinson, said. He was right to bring before your Lordships the need to have a solicitor available to an accused as soon as is practicable. In sheer honesty I must say to him that when he talks about the notice contained in Amendment No. 115A, my own profession has the gravest misgivings about the duty that would be cast upon its members if such a notice was served, and where their duty was split they would find it an undesirable precedent. According to my memory, the last line of that amendment says that during the currency of the notice the solicitor's duty to his client is suspended. That is an innovation in our law which my profession would regard as an inroad into their duties and privileges and which they would find it very difficult, if not impossible, to accept. But that does not mean that the spirit of this amendment is not right.
In conclusion, I would make an appeal to the noble Lord the Minister. I speak on behalf of the Law Society, and I have authority to do so. The Law Society is very worried about the hold-up of 36 hours. It feels that the police—with some justification from the police point of view—may really hold matters up because they believe that once a solicitor comes along it will not be so easy to obtain the confession that they would rather like to obtain. From their point of view that will be a sufficient justification. The Law Society is worried about this in the interests of justice; it is worried about it in the interests of the fairness of the administration of justice.

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There should be a formula which covers the anxiety of the noble Lord the Minister, speaking on behalf of the Government, and which also protects the concern of the Law Society. I beg the noble Lord the Minister to allow an opportunity to occur between now and Third Reading for such a formula to be worked out with the Law Society. I ask him to make those facilities available. If such a formula can be discussed I hope it will be considered at the highest level—and that may enable a compromise solution to be before your Lordships at Third Reading.
The worst that could happen would be that if those discussions failed and a formula was not found acceptable to the noble Lord the Minister or his right honourable friend then your Lordships might consider such amendment as the Law Society might authorise me to put down before your Lordships.
5.31 p.m.
Lord Foot: My Lords, I intervene in this debate with some hesitation because I had come here intending to make a speech along certain lines. It has become unnecessary for me to do that in view of the admirable way in which this amendment and the other amendments which are connected with it were put to your Lordships by the noble Lord, Lord Hutchinson of Lullington. I wanted to take the opportunity to try, if I can (I do this with the greatest possible temerity) to deal with two points made by the noble and learned Lord, Lord Denning.
I have no qualifications that one could compare with his in any way, but I have a qualification which, in connection with this amendment, is perhaps of some virtue and consequence; that is that I am a solicitor by occupation. I have spent the greater part of my professional life in the courts and in criminal matters. Therefore I have the benefit of some experience.
The other qualification I have which is purely adventitious is the one that the noble Lord, Lord Hutchinson, was good enough to refer to. That is that I am currently chairman of the council of Justice.
Although I have played no part in it myself, I am proud of the record of Justice over the years in turning up the cases of miscarriages of justice which have occurred. That task was undertaken for many years by the secretary of Justice, Tom Sargant. Many people owe their liberty today to the investigations that he made on their behalf.
It is perfectly correct that over the years Justice has been able to bring cases back to the Court of Appeal or to the Home Secretary and has had miscarriages of justice put right. But one wonders how many other cases are there where people are incarcerated, and may have been incarcerated for many years, on the basis of a confession, and sometimes only on the basis of confessions. It is an appalling thought that that state of affairs may exist to this day. That is why it is of prime importance that we should consider every possible way in which we can avoid these false confessions being made. The most certain way of avoiding that is to make sure that when a person is interrogated by the police, and when they are seeking to get a confession, that person has a solicitor by his side.
The importance of that is declared perfectly clearly
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in the first subsection of Clause 57 where it says in ringing terms:
"A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time".
I am bound to say that I was saddened and astonished to hear the noble and learned Lord say at the beginning of his speech that he thought that there was no connection between this amendment to provide the services of a solicitor to a person in police custody and false confessions. I should have thought that the whole history of all the cases of false confessions is a history of something being extracted from some person when he is in the custody of the police and when he is not defended or helped in any way. That is how it comes about-It astonishes me to hear the noble and learned Lord asserting that there is no connection between the two.
The noble and learned Lord's second point was that unless we allow the Bill to stand as drafted if one brought a solicitor in, and allowed a man to see a solicitor and get advice before he had been interrogated by the police, there was a risk: not that the solicitor would take part in a conspiracy to pervert the course of justice or pass on information to one of his confederates, but the risk was, according to the noble and learned Lord, that the solicitor might inadvertently convey to some outside party something that the police thought it necessary for them not to know. I cannot think that the noble and learned Lord has read Amendment No. 115A, the proposed amendment to Clause 57 which is the clause dealing with access to legal advice.
I shall briefly explain to the House what that amendment provides. We readily accept what was said by the noble Lord, Lord Elton, at Committee stage upon this matter. The noble Lord, Lord Hutchinson, has already referred to this; but I should like to quote in fairly full detail what Lord Elton said at that time. The noble Lord was talking about this subject, the risk of a solicitor interviewing a man in custody and then conveying some information to his confederates outside. What he said was this:
"I should like to ensure at once that there is no misunderstanding on one important point. The only reason for delaying access to a legal adviser concerns the risk that he would, either intentionally or, as in the example I have already given, and much more frequently, inadvertently convey information to confederates still at large which would undercut the investigation in progress and possibly imperil life. It is these considerations alone which lie behind subsections (5) to (9) of Clause 54."
It is not now Clause 54, but I believe it is Clause 57. The quotation continues:
"What a suspect's legal adviser says to him can never be a ground for delaying a consultation between them."
That is accepted.
"Delay can be authorised only on the basis of what the legal adviser might then do, once the consultation has been completed."
I will not weary the House with too much of this, but the noble Lord went on to say this:
"There may or may not be dishonest solicitors. I would be surprised if there were not, but I would not wish to repose much on it. It is certainly true that if the police suspect a solicitor of obstructing the course of justice they should acquire the evidence on which to act, whether by way of a prosecution or complaint to the Law Society."—[Official Report, 9/7/1984; cols. 641–642.]
What the amendment proposes is that when a man in custody—in detention, not yet charged; a

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suspect—requests to see a solicitor, he should be afforded the opportunity of speaking to a solicitor before anything else happens. Clause 57 goes on to say that there are, nevertheless, two circumstances in which he shall not be allowed to see a solicitor at all. One is where it is not practicable to get a solicitor there in time and the other is where the course of justice might be perverted by some communication—inadvertent as the noble Lord conceded—being made to outside people. I say in passing that the professional criminal who is well aware of his rights is not going to be embarrassed in any way by being told that he cannot have the help of a solicitor. It is the chap who is not a professional criminal, it is the chap who, possibly for the first time, is being subjected to arrest and detention and who is in a state (as one can well imagine) of considerable alarm who is the person most in need of the assistance of a solicitor.
What does the Bill propose? It proposes that where the police think that there is a danger that if a man sees a solicitor the solicitor may, intentionally or inadvertently, disclose something to the outside world, then, subject to certain safeguards, they can delay the calling of a solicitor. That is what the Bill proposes. What Amendment No. 115A proposes is that if a police officer in charge of a case is of the opinion that it is risky to call in a solicitor, nevertheless, he should call in the solicitor and before the solicitor sees the client he should say to him, "The thing that we are worried about is this. We think that if this chap is allowed to communicate anything to the outside world that may pervert the course of justice, it may upset our inquiries, it may interfere with our inquiries, it may enable people to escape or enable people to hide the loot. All sorts of things can happen".
What the amendment provides is that if the police officer is of that opinion he should then serve a notice upon the solicitor saying, "The reason why we do not want you to disclose anything that you may be told by this man or even the fact that he is in custody is so-and-so. We are serving you now with a notice telling you that and telling you what we do not want to have disclosed". What then is the position on which the solicitor stands on the assumption that he is a honourable man and on the assumption that he is not intending to pervert the course of justice?
A solicitor—and one always says this with a little pride—is an officer of the Supreme Court. His first obligation is to the court, his first obligation is to justice. His obligations to his client are subsidiary to that in so far as they cannot be reconciled. I suggest that the solicitor, faced with such a notice, is in no difficulty whatever. He can make up his own mind as to whether he thinks the notice is justified. If he concludes that it is justified, then I should have thought he will invariably observe it, and he will not allow himself to be used to pervert the course of justice. lf, on the other hand, he thinks that the notice is wholly unreasonable, if he thinks that the delay which is imposed is wholly unreasonable, if he thinks it is unjustified and that the notice is a piece of bureaucratic interference, then what he can do—and he takes the risk of doing this—is to say, "No! I am going to exercise my independent judgment". If as a result of that something goes wrong, then he will be answerable not only to his own profession—not only
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to his own professional body—but he may be answerable to the courts. That is what Amendment No. 115A seeks to do.
I fail to comprehend how it comes about that the noble and learned Lord can still think that there is any serious danger of there being an inadvertent disclosure by a solicitor in those circumstances—because he will have the fullest possible notice of the things that he must not do. I have spoken for much longer than I intended. I agree with my noble friend Lord Hutchinson that this is the most crucial part of this Bill. We are dealing here with a matter of the rights of the individual when he is at his most desperate and in terror. If it be right that, by the instrument of Amendment No. 115A, we can resolve that difficulty, can protect the rights of the individual and at the same time protect the powers of the police that their cases shall not he upset by wrong disclosure—if we can achieve those two things, as I think we can by Amendment No. 115A—then surely we ought to jump at the opportunity to do so.
Lord Campbell of Alloway: My Lords, may I apologise to your Lordships for not being in my place at the very moment when the noble Lord, Lord Hutchinson, opened the amendment? However, this is an amendment on which I wish to intervene very briefly. First of all, to be fair about this, as I understood him, surely the noble and learned Lord, Lord Denning, was really only seeking to point out that there were other amendments which were designed to avoid false and unreliable confessions. In no way did the noble and learned Lord suggest that we were not concerned with an important safeguard. Where I respectfully differ from the noble and learned Lord, Lord Denning, is that this is one of those safeguards which it seems to me impinges upon the rights of the subject. It is "access to legal advice".
If we are going to have any form of codification—and as I understand that is what this Bill is about—surely in some form we must grasp this nettle. The question to your Lordships is surely not, "Shall we forget about it?" and not, "Shall we pretend that there is no nettle?" but, "What shall we do about it?" This is where I find—as so often I find—the reasoning of the noble Lord, Lord Mishcon, all but compelling. One appreciates some of the points made by the noble and learned Lord, Lord Denning, but one has to set against them the very telling points raised by the noble Lord, Lord Mishcon. His suggestion that an attempt should be made to find some acceptable formula is surely irresistible. We are apparently unlikely to find it tonight because, with respect, it is wholly unrealistic as I see it to seek to discuss this run of amendments without taking into full account all the implications of Amendment No. 115A. My information this morning at 8.30 was that the Law Society supported Amendment No. 115A, and that was confirmed, as I understood it, by the noble Lord, Lord Foot. I heard, and I always accept what the noble Lord, Lord Mishcon, says—and he shakes his head—
Lord Foot: My Lords, may I intervene, because the noble Lord may be pursuing a misconception? What view the Law Society took of the matter at 8.30 this

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morning is something of which I am ignorant. I did not express any opinion, I think, as to what the view of the Law Society was then or is now.
Lord Campbell of Alloway: My Lords, with respect to the noble Lord, I hear what he says; but Hansard I think will reveal—and if it is a misunderstanding, so be it—that the noble Lord, Lord Foot, said that he had the support of the Law Society. Whether it does or does not, I accept wholly the noble Lord's—
Lord Mishcon: My Lords, would the noble Lord allow me, as he always does with such courtesy, to make the position abundantly clear? I speak with the full authority of the Law Society, which I consulted very fully yesterday. They cannot be in favour of Amendment No. 115A. I am authorised to say that and I have said it very clearly and deliberately, but that does not mean that they are not in complete sympathy with the spirit of this amendment—namely, that there should be the right to consult a solicitor as soon as practicable.
Lord Campbell of Alloway: My Lords, I am very grateful for the noble Lord's intervention because this illuminates the attitude of the Law Society which is now totally clear, totally on the record, and not in doubt in any way. It is one which I support myself. What it comes to is that we cannot accept Amendment No. 115A as it stands and there is a problem of genuine concern which we need time to work out.
In a constructive vein, I would merely suggest that my noble friend the Minister, having listened to a very short but to the point discussion on this subject, might afford us the opportunity needed to allow this important aspect of the codification of the rights of the subject to be considered and formulated in an appropriate way.
In saying that, one surely has to accept that one cannot have one form of procedure in this regard for one type of criminal offence and another for another type of criminal offence. We cannot have one form of procedure for one type of suspect—the old lag—and another type of procedure for the other type of suspect. We certainly cannot have a varying procedure as between one type of solicitors and another. It must be generic, one must strike a mean and one cannot erect partitions such as this without reflecting discretionary decisions which have to be taken by the police in circumstances which might well endanger police-community relations and might well mitigate against the liberty of the subject.
In all those circumstances, it is right—is it not?—that one should see to it that whatever else one does, one does not impose an intolerable and unacceptable burden upon the police. But on the other hand, in the codification, as the noble Lord, Lord Mishcon, said, some formula must be found to recognise this right and to codify it.
Baroness Macleod of Borve: My Lords, we are, as I understand it, discussing Amendment No. 78A, which is to Clause 36, where a person is arrested for an offence without a warrant or under a warrant not endorsed for bail. I feel very stongly that the rights of
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the individual come in here. I think it is very, very important that an individual who is apprehended and is at a police station should have equal rights with somebody who is before the magistrates or in a higher court—that is, in a court of law. For some time we have had court solicitors, and if any body who was not represented wanted to have some legal advice, we would put that case back so that he could have perhaps 10 minutes or a quarter of an hour to get the help of a legal adviser. If that can be done in court, I personally think it is absolutely right that if an individual is taken to a police station in the circumstances which have already been described, at a certain point—whatever that point is, whether it should be laid down by legislation or whether it should be at the instance of the superintendent or head of that police station—he should be entitled to have legal representation. I would go along with that.
Lord Monson: My Lords, I am sorry to have to disagree with my noble and learned friend Lord Denning but I am very glad to join others in supporting this series of amendments, which I think are very important. I hope the Government will accept them, above all in view of the most comprehensive safeguards now contained in Amendment No. 115A, which the noble Lord, Lord Foot, has explained to us so helpfully. In view of what the noble Lord, Lord Mishcon, has just told us, may I say that when I telephoned a representative of the organisation Justice at about quarter past six yesterday evening, I was given to understand that the Law Society had come round to accepting this series of amendments. It would appear that perhaps they have gone back on that. Nevertheless, I am not certain that the Law Society's present views are necessarily their last word on the subject.
I would agree that, in the absence of the safeguards contained in Amendment No. 115A, there would certainly be room for argument over the merits of the first of these amendments. However, with the safeguards contained in Amendment No. 115A, I would submit that our case is a cast iron one, at least if one considers that protecting the rights of the innocent should be our prime consideration.
Lord Hooson: My Lords, may I just make one point on this subject? We in this House are in great danger with the Bill of getting to a position where we say that in theory a subject has the right to silence, in theory he has the right to consult a solicitor, but in practice we make sure he does not.
5.53 p.m.
Lord Elton: My Lords, perhaps I may start by saying how glad I am to see the noble Lord, Lord Hutchinson of Lullington, fit and well and with us again. I must say that I was tempted to hope that his convalescence would last another 24 hours, but I put that unworthy thought behind me.
Secondly, may I correct an error? I inadvertently put on the record that the group of amendments which your Lordships agreed we are speaking to finishes not with Amendment No. 119 but Amendment No. 118. I had it wrongly marked in manuscript, but your

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Lordships will see that Amendment No. 119 belongs there and the noble Lord, Lord Mishcon, helpfully semaphored that information to me earlier.
Amendment No. 119: After Clause 57, insert the following new clause:
("Amendment of Prevention of Terrorism (Temporary Provisions) Act 1984
.—(1) The following section shall be inserted after section 13 of the Prevention of Terrorism (Temporary Provisions) Act 1984:—
"13A.—(l) A person arrested under section 12(1) above, or arrested or detained under a power contained in an order made under section 13 above shall be informed at once that, subject to the following provisions of this section, he is entitled, if he so requests, to consult a solicitor privately at any time.
(2) A request under subsection (1) above and the time at which it was made shall be recorded in the custody record.
(3) If a person makes such a request, he must be permitted, subject to the following provisions of this section, to consult a solicitor as soon as practicable.
(4) In any case he must be permitted to consult a solicitor within 48 hours from the relevant time as defined in section 39(2) of the Police and Criminal Evidence Act 1984 or, if he has been detained at a place other than a police station, from the time at which he arrived at that place.
(5) Delay in compliance with a request is only permitted if an officer of at least the rank of superintendent authorises it.
(6) An officer may given an authorisation under subsection (5) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.
(7) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above at the time when the person detained desires to exercise it—

(a) will lead to interference with or harm to evidence connected with an act of terrorism or interference with or physical injury to other persons; or

(b) will lead to the alerting of other persons suspected of having committed an act of terrorism but not yet arrested for it; or

(c) will hinder the recovery of any property obtained as a result of such an act; or

(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or

(e) by alerting any person, will make it more difficult—

(i) to prevent an act of terrorism; or

(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

(8) If delay is authorised—

(a) the detained person shall be told the reason for it; and

(b) the reason shall be noted on his custody record.

(9) The duties imposed by subsection (8) above shall be performed as soon as is practicable.
(10) There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist.
(11) If an officer of appropriate rank has reasonable grounds for believing that, unless he gives a direction under subsection (12) below, the exercise by a person of the right conferred by subsection (1) above will have any of the consequences specified in subsection (7) above, he may give a direction under that subsection.
(12) A direction under this subsection is a direction that the person desiring to exercise the right conferred by subsection (1) above may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the force of which the officer giving the direction is a member.
(13) An officer is qualified for the purpose of subsection (12) above if—

(a) he is of at least the rank of inspector; and

(b) in the opinion of the officer giving the direction he has no connection with the case.

(14) An officer is of appropriate rank to give a direction under subsection (12) above if he is of at least the rank of Commander or Assistant Chief Constable.
(15) A direction under subsection (12) above shall cease to have effect once the reason for giving it ceases to subsist.".").
All the amendments in the group which comprise
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Amendments Nos. 78A, 81A, 85A, 115A, 116 and I now, chastened, admit 119, all aim to confer an absolute right to legal advice on all those in police detention. The only exceptions to the rule would be those detained in connection with terrorism. May I first remind your Lordships that the Bill establishes in our law for the very first time a statutory right of access to legal advice which will be an absolute right for all those detained other than in connection with serious arrestable offences.
This is a new and important safeguard to the civil rights of suspects. The right becomes absolute for those suspected of serious arrestable offences at the end of 36 hours. This debate therefore comes down to one question: where should the line be drawn between cases where delay is available and cases where it is not? We all agree that delay should not be available in cases of less serious crime. We are all agreed that it should be available in the case of terrorist crime, and the noble Lords have that recorded in their amendment later on.
What is at issue is the cases in between, cases involving serious arrestable offences. Like the Royal Commission, we believe that delays should in those cases be available. Unlike the Royal Commission, the noble Lords opposite believe that it should not. We cannot discuss the noble Lord's proposal out of context, and the proper context, which has been referred to, is the array of safeguards which the Bill as already drafted activates whenever a decision to delay access to a solicitor is taken.
Let us consider what these safeguards are, and how they will work. As your Lordships will know, under the law at present access to a solicitor may be denied to a person in custody on suspicion of any offence for any length of time on the authority of an officer of any rank on criteria less precise than those in the Bill. The first of the new safeguards applied to that situation is that under Clause 55 delay will be possible only for, at the most, 36 hours in the case of serious crime and on the authorisation of an officer of at least the rank of superintendent, which is higher than that proposed in the amendment.
He cannot make his decision on a hunch or a whim. He will have to have reasonable grounds for believing that access to a solicitor will lead to one of the consequences listed in subsection (7). Moreover, he must inform the detained person of the reason why he has reached this conclusion. Nor will such reasons be left to recollection; they will be a matter of record. They must be noted in the custody record, which will subsequently be available to the person concerned; so there is a clear provision for challenging a decision to delay access to legal advice.
The Bill also makes provision for the establishment of duty solicitor schemes under the Legal Aid Act so that detained persons who want legal advice, at whatever time of day or night, will be able to obtain it. Nor can access to legal advice any more be denied by default. Section 6 of the draft detention code of practice also requires each detained person to be informed at the outset, both orally and in writing, of his right to legal advice. Again, the decision not to allow legal advice will be a matter of specific record. Section 6 requires the police to ask him, if he does not want to take up his right, to waive it in writing. The code goes on to
make it clear that a person may have

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his solicitor present at the interview and that only actual misconduct on the solicitor's part will allow the police to require him to leave.
I have given that discursus having in mind what the noble Lord, Lord Hooson, said a moment ago: that we are concerned with what will happen in practice. This is what will happen in practice where access to a solicitor is granted, as it will be in the overwhelming majority of cases, and what will happen in the few cases where it will not.
I accept, as the noble Lord, Lord Hutchinson, reminded us, that there is a strong case in principle for an unqualified right of access to legal advice. Such rights do exist in many other Western countries and many bodies which gave evidence to the Royal Commission argued for such an unqualified right. Their arguments, like those of the noble Lord, carry great weight. But, of course, the Royal Commission did not feel able to accept those arguments because they feared the practical consequences for the investigation of serious crime that we fear. Clause 57 basically gives effect to the Commission's recommendations; namely, that while there should be a statutory right of access to legal advice, the existing wide discretion to delay access to legal advice should be retained, even if more strictly regulated and narrowed, and should be placed on a statutory basis. That is what is in the Bill.
Let there be no misunderstanding on one important point. The only reason for delaying access to a legal adviser is the risk that he would, either intentionally or inadvertently, convey information to confederates still at large which would undercut the investigation in progress. It is these considerations which lie behind subsections (5) to (9) of Clause 57. What a suspect's legal adviser says to him can never be a ground for delaying a consultation between them. Delay can be authorised only on the basis of what the legal adviser might then do once the consultation has been completed. Indeed, Annex B to the code makes it quite clear that access to a solicitor may not be delayed because he may advise the person not to answer questions. So the provisions in Clause 57 enabling the police to delay such consultations are not concerned with any anxiety arising from the giving of legal advice: they are simply a special case of the provision in Clause 55, enabling the police to hold a suspect temporarily incommunicado.
The arguments are all set out very clearly in paragraphs 86 to 93 of Chapter 4 of the Commission's report, and I do not wish to add much to them. The Commission inferred that solicitors might, on occasion, knowingly alert criminals to the fact that there was a police inquiry and so assist them to escape justice. Whether or not that is the case is for your Lordships and for the Commission, but I must stress that the existence of dishonest solicitors is no part of my case. Even if all solicitors are of unquestionable honesty, there is still the need for a provision under which access to legal advice can be delayed. The reason is that damage can be done by accident and unwittingly as well as by design. If a suspect asks a solicitor to pass on some innocent-sounding message to his wife or a friend, the solicitor may, quite innocently, by so doing cause stolen property to be
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concealed or accomplices to evade capture. Yes, I will give way. I was about to anticipate the noble Lord: but—
Lord Foot: My Lords, I am grateful to the noble Lord. Would he consider this? If, under our proposals in Amendment No. 115A, the suspect in the police station asks for a solicitor to be sent for, and if the solicitor then turns up and the police officer in charge of the matter—it would be a superintendent under the Bill and an inspector under our amendment—then says to the solicitor, "I don't want you to inform anybody that this man is under arrest, and the reason I don't want you to do that is because", whatever it may be, the solicitor is then apprised of the fact that he must not communicate with the wife and—
Lord Elton: My Lords, will the noble Lord forgive me? I have taken his point. I think the rules of order at Report stage allow him only to ask a question. I think I have got the question he is asking, and the question he is asking (or, at least, the question which I shall convert it into) is: will the police inspector in this case (who is junior to the superintendent) in fact know the way in which the information which he does not want to get out of the police station will inadvertently get out? The first thing is that it may already be too late when the solicitor gets to the police station. The fact that a solicitor has been asked to come and attend to a particular client will be known to his staff, and if it is known to other people as a result of a purely chance conversation that a particular criminal is in the police station and is being helped by the solicitor, then there is nothing in Amendment No. 115A—it does not mention the solicitor's secretary or his clerk—to prevent the information getting out in that way.
The conversations between a solicitor and the suspect are, I take it the noble Lord intends, still to be carried on in private, except for terrorist offences, and so the police inspector will have no idea what has happened between them, and he might be suspicious of a message saying, "Tell my wife to let the pigeons out", or "Feed the budgerigar"; but, of course, he would not know that such a message had been given. So he can only give a blanket prohibition: "Don't talk to anybody about this case or mention the name of this criminal". But it could already be too late, because the purpose for which this meeting is taking place would be known and the cat would be out of the bag.
Perhaps I might also say to the noble Lord, Lord Foot, that we are not dealing here with the single terrified amateur (that was the phrase he used) because the three criteria which justify the delay can only plausibly come into play in the case of the professionally organised criminal. One cannot imagine any of the provisions in subsection (7) leading to interference with or harm to evidence, or physical injury to other persons, or alerting other people who are suspected of having committed such an offence, etc., to the extent that the course of justice would be seriously diverted and the superintendent would have grounds, unless these people were awaiting the signal.
Lord Donaldson of Kingsbridge: My Lords, the noble Lord said, "will lead to interference". The point is that they would lead only if he were guilty. If a man were innocent, they would not lead anywhere.
Lord Elton: My Lords, I readily change that to "would" from "will". I am sorry, but it was a slip. I do not think we ought to assume either the guilt or the innocence of the person in this case, though we were invited at one stage for a moment to take it for granted that he was innocent.
May I offer another reassurance? Whatever may have been the practice some years ago, delay of access is not now a common event. A survey was conducted in all stations in the metropolitan district for the three months' period August to October 1982. That survey found that in the case of persons detained without charge for more than 24 hours but fewer than 48 hours, requests for access to legal advice were refused on only six occasions and that span of time goes beyond what we propose. Nearly half of the 29 persons detained for 48 hours or more asked for legal advice and this was refused on only one occasion.
The fact of the matter is that those who want legal advice are prevented from receiving it only exceptionally at present, and Clause 57 regulates this discretion even more tightly. It contains formidable new safeguards, but the amendments seek to go further and to prevent the police from detaining a person for the purposes of questioning him and at the same time interfering with his right of access to a solicitor.
The trouble is that on rare occasions it may be both right and necessary for the police to do both those things. I am haunted by the vision, which I conjured up at Committee stage, of a person arrested on suspicion of involvement in kidnapping, where there are real grounds for fearing that access to a solicitor or anyone else would result in the murder of the victim. The captors may actually have promised as much. The need to question the subject is evident and the need to keep him temporarily incommunicado stares us in the face, and I am at one with the noble and learned Lord who so ably supported me a moment ago. This amendment could in those cases be no less than a death warrant for the victim.
I do not want to appear intransigent in all this. I have heard what the noble Lord, Lord Mishcon, has persuasively and eloquently said about the concern of the Law Society, and my noble friend Lord Campbell of Alloway also very helpfully illuminated this. I recognise that the Law Society are still concerned about this matter. They no doubt recognise that we also are concerned—deeply concerned—for the safety of the public and for the proper protection of the public from serious crime. This is a concern which we cannot afford to set aside.
But if the Law Society have devised, or can devise, a formula which meets their concern without any threat to the interests which I have stated and which we have a duty to protect, we should be very glad to hear of it. I cannot of course predict the answer to such an approach; but I can say that the Home Office would be interested to discuss such an approach. But what is now on the Marshalled List in this group of amendments is not acceptable and I therefore hope that your Lordships will not attempt to put it into the Bill.
Lord Hutchinson of Lullington: My Lords, in replying very shortly to what has been said, may I make just two or three very brief points? It seems now
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from what the noble Lord the Minister has said—and I agree with him—that we are dealing with a very few serious cases which come up. But the Minister has not perhaps treated the matter with quite sufficient seriousness when balancing the right of the individual against the power of the police. If we are dealing with only a small number of vital and crucial cases in every year, surely one can ask why therefore should this right not be given?
The miscarriages of justice—to which the Minister did not refer in his reply and which lie at the basis of this amendment—occur in a small proportion of cases. They occur in many cases of murder, where the person is not a criminal but is a member of the public without convictions. But it should be said, too, that the man with convictions also requires the protection of the law if the law is to be the proper procedural law which we can admire, because the man with convictions is often picked up when an offence has been committed which is similar to the kind of offence that he has committed formerly.
He is taken to the police station and interrogated and the suggestion is made that, as he is a bank robber, he has robbed a certain bank. Very often—and this has been shown in the miscarriages of justice—that man is the victim of a miscarriage of justice because if in the trial he suggests that something improper has happened at the police station, then, as your Lordships know, the whole of his convictions can be brought into the trial. Therefore, he is in that sense extremely vulnerable, just as an inadequate and totally innocent person is also extremely vulnerable.
As I think the noble Lord, Lord Campbell, said, you cannot have and you do not want one system for the convicted, the old lag, and another system for the ordinary inadequate or innocent person. They are both vulnerable in exactly the same way as other people who suffer from various other drawbacks are vulnerable. We are all vulnerable when we get into a police station alone. We have certain rights, and this amendment simply sees to it that, in that vulnerable situation from which these miscarriages of justice always come people will simply be told at long last, "You have this right. You shall have this right."
The last point that I want to make to the noble Lord the Minister is that it is not realistic to say that the simple summoning of a solicitor will alert the kidnapper, who will kill the victim. If that situation arises, all the police have to do is to get hold of the duty solicitor who is provided for in the Bill. He will always be on duty under this scheme and will be told, "There is someone here who requires your assistance." There is no need to give any names. There is no need to give away anything at all. The duty solicitor will come and he will be told of the serious situation, as the noble Lord, Lord Mishcon, said. Having been told that, he will consider the circumstances. We all have to make these decisions, and in those circumstances the administration of justice comes above the interests of the client.
Having said all that, and having expressed my disappointment in the reply of the noble Lord the Minister, I heard in his last words some possible encouragement to us on this matter. If I heard that—and I hope that I heard it rightly—and he

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undertakes to consider this matter and to receive any suggestions which may come forward from the Law Society to resolve this problem, which is recognised throughout the House as a fundamental one, then I do not wish to divide the House. It is on that basis that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.19 p.m.
Baroness Ewart-Biggsmoved manuscript Amendment No. 78B:
Page 32, line 20, after ("him") insert ("and any person who is required to be informed of his detention under section 55 of this Act").
The noble Baroness said: My Lords, this amendment is similar to one which was part of a group moved at Committee stage. The general principle behind all those amendments was to make it the duty of the police to inform a parent or an independent adult of the detention of a juvenile and to keep such an adult informed of all the different stages through which the juvenile will pass during detention. I shall not go through all the arguments which were used in support of the amendments because although the Minister did not smile upon all the amendments in that group, he nevertheless accepted this amendment in principle. However, he said that he needed to give further thought to the drafting. Therefore, we are moving it again today to remind the Minister of his commitment and to make sure that the small crumb of comfort which he gave to us at the Committee stage will not be swept under the carpet. I beg to move.
Lord Elton: My Lords, I am quite happy to repeat the undertaking which I gave at the Committee stage. I assure the noble Baroness that we have not forgotten our undertakings. We intend to bring them forward at Third Reading, if they cannot be brought forward at Report.
Baroness Ewart-Biggs: My Lords, in view of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Responsibilities in relation to persons detained]:
Baroness Trumpingtonmoved Amendment No. 79:
Page 34, line 28, leave out from ("If") to second ("the") in line 30 and insert ("an arrested juvenile is transferred to the care of a local authority in pursuance of arrangements made under section 37(7) above,").
The noble Baroness said: My Lords, this is a drafting amendment which I beg to move.
Baroness Macleod of Borve: My Lords, Section 37(7) is mentioned in this amendment, where the word "impracticable" is used. My noble friend Lady Faithfull has asked me to ask my noble friend whether or not these words are too wide. Will a juvenile be able to be held in custody instead of being put into the care of the social services—which I know everybody wishes to happen, including the Government—if no place can be found for that juvenile? On behalf of my noble friend, may I ask for elucidation of that word?
Lord Elton: My Lords, on my noble friend's behalf, may I assure my noble friend, who is speaking on her noble friend's behalf, that the intention is simply to provide against rare occurrences. It may happen, for instance, that all the social workers in a particular local authority area are on strike and refusing to accept people—or there may be a blizzard, or something of that nature. It is not a device to slide out of the commitment which we have already given.
Lord Donaldson of Kingsbridge: My Lords, the noble Baroness, Lady Faithfull, was worried about resources. She thought that Section 37(7) could easily cover the situation where a local authority's expenditure has been cut, which we know happens all too often, and where the available facilities are overstretched, in which case the police could say, "It is not practicable" and therefore not do it. The noble Baroness was very anxious to be reassured on this point. What the noble Lord has said does not quite give us that reassurance.
Lord Elton: My Lords, I cannot remember verbatim what I said in Committee, but I remember what was in my head. What was in my head was that local authorities have arrangements between each other, which mean that they take in difficult cases from neighbours. I think my noble friend was worried in particular about unruly certificates and really difficult children. The fact is that, regardless of the level of resources, it is not always necessary to have separate provision for this type of case in, for instance, every London borough. Therefore, one borough will have the accommodation and charge the other boroughs for it. So the resources question is already overcome. That is, I believe, more or less how I expressed it in Committee. If there is any shade of meaning which has escaped me or which I have falsely painted into the picture, I shall write to my noble friend, to my noble friend's noble friend and to the noble Lord, Lord Donaldson of Kingsbridge.
Lord Elwyn-Jones: And, my Lords, to the noble Baroness, Lady Faithfull, who is most concerned about this.
On Question, amendment agreed to.
Baroness Ewart-Biggsmoved manuscript Amendment No. 79ZA:
Page 34, line 32 at end insert—
(" ( ) It shall be the duty of the local authority to ensure that the arrested juvenile is treated in accordance with the duties and responsibilities imposed on the local authority under section 18(1), (2) and (3) of the Child Care Act 1980 in respect of children in their care.").
The noble Baroness said: My Lords, this is another amendment which we moved at the Committee stage and towards which the Minister was sympathetic. Although in no way casting doubt on the Minister's words—far be it from me to do so—I should like his commitment that this matter will be dealt with at Third Reading. I beg to move.
Lord Elton: My Lords, on this occasion my answer is the same as my answer to manuscript Amendment No. 78B.
Baroness Ewart-Biggs: My Lords, I thank the noble Lord, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 [Review of police detention]:
Lord Monsonmoved Amendment No. 79A:
Page 35, line 19, leave out ("subsection (1)") and insert ("subsections (4) and (4A)").
The noble Lord said: My Lords, with the leave of the House, may I speak at the same time to Amendment No. 79B, for which Amendment No. 79A is a paving amendment.
Amendment No. 79B: Page 35, line 40, at end insert—
("(4A) When a review is postponed under subsection (4) above, the review officer shall calculate the timing of subsequent reviews as if no postponement had taken place.").
The purpose of these amendments, which have not been entirely easy to draft, is to ensure that if a review of detention has to be postponed for one reason or another, the detainee will not he accidentally penalised thereby. In the normal way, under the provisions of Clause 39, reviews of detention will be carried out at or before the sixth hour of detention and subsequently at or before the 15th hour, the 24th hour, the 33rd hour, the 42nd hour, the 51st hour, and so on. However, as I pointed out at the Committee stage, if the first review cannot be carried out until, say, 11 hours of detention have elapsed, as Clause 39 stands the subsequent reviews need not be carried out before the 20th hour, the 29th hour, the 38th hour, the 47th hour, and so on. In other words, there is no provision for compensating for the delay. There is no provision for catching up.
At the last stage, the noble Lord, Lord Elton, acknowledged that there was a problem and promised to look at it. However, it is obvious that time has not permitted him to put down a Government amendment—hence my own. This amendment would ensure that even if the first review—to revert to my example —could not take place for 11 hours, the subsequent reviews would still take place at or before the 15th hour, the 24th hour, the 33rd hour, and so on, which I am sure your Lordships will agree is only fair. I beg to move.
Lord Elton: My Lords, I am glad to say that in the short time since the Committee stage we have been able to consider what the noble Lord proposes and we believe it to be an admirable suggestion. Unfortunately, in the short time available we have been unable to convince ourselves as to whether or not the noble Lord's drafting is absolutely watertight. I hope he will forgive me if I ask him to allow us at Third Reading to bring back an amendment of our own, if necessary, to replace his amendment, otherwise we shall be happy to see the noble Lord's amendment on the Marshalled List at that stage.
Lord Monson: My Lords, may I say how delighted I am by what the noble Lord has just said—and rather stunned, if I may say so. I had not thought that the wording of my amendment was even approximately right, so I am glad to know that I got pretty near it. With that assurance from the noble Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79B not moved.]
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Clause 40 [Limits on period of detention without charge]:
6.28 p.m.
Lord Mishconmoved Amendment No. 80:
Page 37, line 13, leave out ("sections 41 and") and insert ("section").
The noble Lord said: My Lords, in view of the previous debates which have taken place, I propose to try to summarise the arguments and then to appeal to noble Lords for their support. With Amendment No. 80, I propose, with your Lordships' permission, to take Amendments Nos. 82, 86 to 91 and 93A.
Amendment No. 82: Leave out Clause 41.
Amendment No. 86: Page 41, line 9, leave out ("36") and insert ("24").
Amendment No. 87: Page 41, line 14, leave out ("36") and insert ("24").
Amendment No. 88: Page 41, line 24, leave out ("36") and insert ("24").
Amendment No. 89: Page 41, line 28, leave out ("36") and insert ("24").
Amendment No. 90: Page 41, line 40, leave out ("36") and insert ("24").
Amendment No. 91: Page 42, line 8, leave out ("36") and insert ("24").
Amendment No. 93A: Page 42, line 32, leave out from beginning to ("before") in line 35.
The whole effect of this group of amendments would be as follows: that for the first time there would be incorporated in our law a very clear period of time during which detention could take place before a charge was preferred. If these amendments are agreed to, that period of time will be 24 hours, with the consent and authority of the police alone. Then there will be a further period of 24 hours, if the court so approves. So the total maximum time—and I put it very clearly, I hope—during which somebody can be detained before a charge is preferred is 48 hours.
I am so glad when I can say that the noble and learned Lord, Lord Denning, is with us. He put the position with the clarity for which he is so well-known at column 613 of the Official Report when he was speaking at Committee stage on the 9th July. I am going to read a short excerpt from what he said:
"It may be that the police should have powers to detain for inquiries in such a case."
The case from which he was quoting was the one which he also quoted this afternoon:
"They have not got them now. Parliament may have to decide whether they should have them. The courts cannot do so. There is the important question for your Lordships today: whether there should be power to detain for questioning in such circumstances. It is a very difficult question, if I may say so, but most important, because the efforts of the police may be hampered. I do not say that the man himself should necessarily be warned, or have a solicitor, and so on, but it is a most important question for the police in the course of their investigations, and I wonder which way we should come down."
Then, right at the end of his memorable remarks, he said:
"On the whole, if I may say so, it is a very near thing against the amendments and to support the Bill as it stands."
The noble Lord the Minister answered that, and I quote from column 614:
"I respond to the noble and learned Lord by saying, first, that we recognise that the idea that it is lawful or proper for the police to detain a person who they have arrested for an offence, in order to question him before he is brought before a court on a charge is a relatively recent development in criminal procedure."

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In proposing these amendments, we recognise that we are facing a new situation in criminal procedure. We are not saying (as we might say): "Please, the Scots appear to have got away with the law which has as a maximum six hours' detention; their police have not complained; they have not asked for any amendment to that six hours." We have not spoken along those lines although we could have done so. We have not spoken about the Magistrates' Courts' Act of 1980, which deals with 24 hours as the reasonable practicable time. We have said: "We recognise the difficulties of the modern age and of the unfortunate crime wave; and balancing, as we think we ought, this innovation in our statutory law, we say the police shoud have the power to detain for 24 hours before charging, and if they want any further time they must go to the court and the court can give another 24 hours." We ask your Lordships to say that even if you allow for the rest periods, meals, and so on, 48 hours is quite enough to take away from the liberty of the subject before a charge is preferred.
If I went on addressing the House and endeavoured to copy the eloquence of some of your Lordships, which I do not possess, I could not improve what I believe to be a meritorious cause. If we are to codify the right to detain, 48 hours is more than enough, but 48 hours is the maximum proposed in this amendment.
Lord Hutchinson of Lullington: My Lords, I should like to support this amendment. Before I do so, I should like to thank the noble Lord the Minister for the kind words which he addressed towards me. I should also like to inform him that the Get Well card which he promised—to which I saw reference when I read the Official Report—did not in fact arrive.
In supporting this amendment I make the point that if a solicitor was, as a matter of statutory right, going to be allowed access to an accused in a police station, then of course detention for a considerable period would be perfectly acceptable. It might be that a little longer would be perfectly acceptable in a special case; but if that right is not going to be given to the accused, I most strongly support 48 hours as the absolute ceiling. It has already been said that this is a new situation and it is giving a suspect greater rights than he had before. Up to a point that is true, but the common law made it perfectly clear. In the normal way, by statute, a person should be brought before the magistrates' court within 24 hours; he should be brought before the court as soon as practicable. The common law laid it down that 48 hours should be the normal maximum period. For anything over that one would have recourse to habeas corpus proceedings with all the delay which that involves. Nevertheless, that right had been established.
What this amendment achieves, as I see it, is the status quo position at common law. It is admirable that it has been put in the Bill now, and we know exactly where we are on periods of time. I strongly support this period of 48 hours as a maximum.
Lord Denning: My Lords, the noble Lord, Lord Mishcon, was good enough to quote what I said. I adhere to every word I said on that occasion. This
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power of police detention is a most important and new power. I wavered then and I waver now as to what the right result should be, but I think the review procedure which is prescribed by the Bill (after six hours, after nine hours, and so on) should be carried out and eventually before a magistrate when the person can be represented. On the whole, it seems that my mind comes down just as it did before, in favour of the Bill as it stands.
Lord Elton: My Lords, it is now generally accepted that the law governing detention in police custody is hopeless1y vague and out-of-date. Under Section 43 of the Magistrates' Courts Act 1980, a person who is arrested without a warrant and is detained in custody must be brought before a magistrates' court as soon as practicable. The expression "as soon as practicable" is underlined; and although, as we have seen it was intended originally—back in the last century—to authorise delay only to the extent that there were logistical delays in bringing a person to court, for many years now it has become the accepted practice for production in court to be delayed in order to enable the police to conduct inquiries and interview the arrested person. In two recent cases (Hudson and Sherman and Apps) the courts adopted the view that "as soon as practicable" must mean something like 48 hours at most. But in a more recent and authoritative judgment, Nycander, the courts have now held that there is no rigid rule in the legislation which specifies how long detention may last: each case must be judged according to the circumstances. Nycander himself had been detained without charge for about 90 hours. So the background against which the proposals in Part IV of the Bill have to be set is that there is no fixed or absolute limit on detention without charge, and no provision at all for independent or systematic reviews of detention while it is taking place.
On any fair assessment of the Bill it must be accepted that the provisions of Part IV represent a substantial reform of the present situation. There is, for the first time, an absolute time limit on detention without charge, and that safeguard is additional to what the Royal Commission recommended. We shall be debating later whether that limit is about right or should be advanced in time; but it is an important new development. Those who have sought to play down its significance on the grounds that detention beyond this point rarely if ever occurs nowadays should remember that when we were debating earlier clauses of the Bill, it was they who argued that good police practice was an insufficient safeguard and that it was important to ensure that certain things could not lawfully be done.
The second innovation in Part IV is the introduction of reviews of detention. Noble Lords opposite argued at this stage before that the first independent review of detention should take place by the 24 hour point rather than the 36 hour point. I will explain in a moment why this is not an argument which commends itself to us. But it is very important for us all to be clear that even a 36 hour review is a very substantial improvement on the present situation. and that review is itself the end point of a series of progressively more demanding and more independent reviews of the need for detention by the police themselves, to which the noble and learned Lord, Lord Denning, has aptly drawn our attention. Under the

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Bill, when an arrested person is first brought to a police station, his case must be considered by the custody officer, who—other than in exceptional circumstances—must be detached from the investigation in progress. If he remains uncharged after six hours, the case must be reviewed by an officer of at least inspector rank, who must similarly be detached from the investigation. Thereafter, detention without charge must be reviewed every nine hours, until the person is released or brought before a court. And by the 24 hour point (the one we are interested in) an officer of superintendent rank must have reviewed the case.
And whereas under the present law detention beyond 24 hours is possible in any case which appears to the police to he serious—a subjective test if ever there was one—under Clause 40 the superintendent must, in order to authorise continuing detention, apply the objective test of whether or not the offence under investigation is a serious arrestable offence. So there is a whole new framework of supervision and review intended to ensure that detention is controlled and that inquiries are being conducted, in the words of Clause 40, diligently and expeditiously.
In a nutshell: under the present law an arrested person can be detained without charge, without limit of time, and without any review of that detention by a court at the time it is taking place. Under the Bill, detention beyond 36 hours must be authorised by a court. We do not believe that a full inter partes review of detention at the 24 hour point would be safe and we believe that it would be an impracticable further step to take, however "natural" 24 hours may appear to be as a cut-off point.
Although the previous Bill as originally introduced into Parliament provided for the first wholly independent review of detention to be at the 24 hour point—and I wonder whether that lurks at the back of the minds of noble Lords opposite—this review would have taken the form only of an ex parte hearing by a single magistrate. The first inter partes hearing at which the suspect would have been present and would have been represented would not have taken place until 48 hours. We have brought that forward by 12 hours. I mention this to show that we have no objection in principle to independent review of detention by the magistrates at the 24 hour point. After all, this was a feature of the original Bill. The objections relate to difficulties of a strictly practical kind which are inherent in the holding of inter partes hearings at such an early stage.
If I may summarise what I said in Committee, there is a marked difference in the degree of the business that would result from the 24 hour and the 36 hour reviews. The available information suggests, as I told your Lordships in Committee, that about 22,000 people a year are detained without charge by the police for 24 hours or more but the number who have not been charged or released by 36 hours is very much smaller—only a few hundred. These are of course precisely the cases which are the most serious, which present the police with the greatest difficulties, and which it is particularly important to ensure that they bring to a successful conclusion.
With these figures in mind it is clear that a requirement to hold an inter partes review by 24 hours would
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place a substantial new burden on the courts. Only in a minority of cases—perhaps one quarter of them—would the 24 hour point fall when the court is normally sitting. If the police were forced to make applications for warrants for further detention in advance of that point, the total number of applications would be even greater than 22,000. Cases would undoubtedly arise in which the police, for good reason, would apply for a warrant where detention beyond charge for more than 24 hours turned out to be necessary.
I could go on but I am sure your Lordships are seized of the point from Committee stage that the difference in volume is a macro difference which would place substantial difficulties in the way of the courts and would place difficulties also in the way of the police, who would have to stop their inquiries not at 48 hours but in time for them to prepare their application and for the suspect to apply his. It would also be the case that at the 24 hour point the police would have to display their hand in open court—so this would affect both the courts and the police. Those are both points of which I do not wish your Lordships to lose sight.
The advancement of the inter partes review would automatically reduce the period under Clauses 55 and 57 for which, exceptionally, delay of notification of arrest would be authorised. It has been accepted by the Criminal Bar Association that on occasions even 36 hours might be too early. The case they had in mind concerned a kidnapping of the type I described when speaking to the last amendment.
It seems to us that the risks would obviously be that much greater if the period were reduced to 24 hours. I ask your Lordships to bear in mind both the difficulties and burdens and the expense for the courts. I may remind your Lordships that I have responsibility for the prison service, and one of the great difficulties we have there—and the noble Lord, Lord Donaldson, has thought of this before me—is the inexorable growth in the number of people remanded because of the business before the courts. If we are to place another 20,000-plus cases before the courts, we will have more people yet in prison who have been charged but not tried. I hope your Lordships will remember them as well as those people whom the noble Lord, Lord Hutchinson, is remembering and who are in police stations without having been charged.
6.48 p.m.
Lord Hutchinson of Lullington: My Lords, perhaps I may ask the Minister one question in order to put the record straight. He stated that the Criminal Bar Association agreed that people should be held in custody for up to 36 hours. The true position is that they agreed to that only on the basis that such persons had a solicitor with them.
Lord Mishcon: My Lords, while the noble Lord the Minister is considering a possible correction, I will ask him to consider another. He just stated that these applications take place in open court. I believe he will find that the applications, although inter partes, do not take place in open court. The Minister may care to rectify that mistake, if it is a mistake. If I have made the mistake, then I will of course withdraw and apologise to him.
Lord Elton: My Lords, I am in a slight logistic difficulty in this matter. As regards the term "open court", I used it as a layman. I had intended to refer to an inter partes hearing. That is the kind of slip one gets from an amateur trying to do a professional job, and for that I apologise.
Lord Mishcon: My Lords, I have always said that in my judgment the Minister is a great loss to my profession. Indeed, he speaks with all the qualification almost of a trained lawyer. The Minister has explained why he used the words "open court" and may I say that these applications take place very speedily because they are not in open court. Therefore, the papers come before a couple of magistrates who might be sitting, and it is a fairly simple matter for them to deal with the hearing.
I am going to confine my remarks to saying this. The noble and learned Lord, Lord Denning, with all his experience, had heard all the arguments of the Government on the last occasion and all the arguments that we tried to advance for our amendments. He has been fair enough and good enough to say that, at the end of the day, he was left in some doubt, but that in trying to resolve the doubt decided that just possibly he should vote the other way and not in favour of the amendments. He is kind enough to nod his head in agreement. When the noble and learned Lord, Lord Denning, is in doubt after hearing all the arguments, all of us are entitled to have a doubt and are entitled to resolve it in a different way from the way that he did. I trust that that will be the position. I feel that the House should now express its view.
Lord Elton: My Lords, I should like to put the record straight. I think I am right in saying that the Criminal Bar Association did in fact accept that there were cases when it was necessary to keep people incommunicado for 36 hours. If I am wrong about that I will readily correct it, but I believe the Criminal Bar Association did give that opinion—and I understand that I am right.
The Lord Chancellor: My Lords, am I right in thinking that the time has come to put the Question? The Question is, That Amendment No. 80 be agreed to?
6.51 p.m.
On Question, Whether the said amendment (No. 80) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 88.

DIVISION NO. 2

CONTENTS

Airedale, L.

Bottomley, L.

Ardwick, L.

Bruce of Donington, L.

Attlee, E.

Collison, L.

Aylestone, L.

Darcy (de Knayth), B.

Beaumont of Whitley, L.

David, B. [Teller.]

Bernstein, L.

Dean of Beswick, L.

Beswick, L.

Diamond, L.

Birk, B.

Donaldson of Kingsbridge, L.

Blease, L.

Elwyn-Jones, L.

Boston of Faversham, L.

Elystan-Morgan, L.

456

Ennals, L.

Molson, L.

Ewart-Biggs, B.

Mountevans, L.

Foot, L.

Nicol, B.

Gallacher, L.

Ogmore, L.

Gifford, L.

Phillips, B.

Glenamara, L.

Pitt of Hampstead, L.

Graham of Edmonton, L.

Rochester, L.

Hampton, L.

Ross of Marnock, L.

Hanworth, V.

Seear, B.

Hooson, L.

Serota, B.

Hunter of Newington, L.

Stallard, L.

Hutchinson of Lullington, L.

Stedman, B.

Irving of Dartford, L.

Stewart of Alvechurch, B.

Jacques, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swindon, L.

John-Mackie, L.

[Teller.]

Kilmarnock, L.

Stone, L.

Lloyd of Kilgerran, L.

Strabolgi, L.

Lockwood, B.

Tordoff, L.

Longford, E.

Underhill, L.

McCarthy, L.

Wallace of Coslany, L.

Mishcon, L.

White, B.

Molloy, L.

Winterbottom, L.

NOT-CONTENTS

Airey of Abingdon, B.

Kinnaird, L.

Auckland, L.

Kinnoull, E.

Avon, E.

Lane-Fox, B.

Bauer, L.

Long, V.

Bellwin, L.

Lucas of Chilworth, L.

Beloff, L.

Macleod of Borve, B.

Belstead, L.

Mancroft, L.

Bessborough, E.

Marley, L.

Brookes, L.

Masham of Ilton, B.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Cameron of Lochbroom, L.

Maude of Stratford-upon-

Campbell of Alloway, L.

Avon, L.

Campbell of Croy, L.

Merrivale, L.

Carnock, L.

Milverton, L.

Cathcart, E.

Mottistone, L.

Colerine, L.

Munster, E.

Colville of Culross, V.

Napier and Ettrick, L.

Colwyn, L.

Newall, L.

Cork and Orrery, E.

Orkney, E.

Cox, B.

Pender, L.

Craigavon, V.

Peyton of Yeovil, L.

Crathorne, L.

Plant, L.

Dacre of Glanton, L.

Radnor, E.

Daventry, V.

Rankeillour, L.

Denham, L. [Teller.]

Renwick, L.

Denning, L.

Rochdale, V.

Dilhorne, V.

Romney, E.

Drumalbyn, L.

St. Davids, V.

Eccles, V.

Saltoun, Ly.

Ellenborough, L.

Savile, L.

Elliot of Harwood, B.

Skelmersdale, L.

Elton, L.

Spens, L.

Fanshawe of Richmond, L.

Stamp, L.

Ferrier, L.

Swinfen, L.

Gainford, L.

Swinton, E. [Teller.]

Gardner of Parkes, B.

Teviot, L.

Glanusk, L.

Thomas of Swynnerton, L.

Gray, L.

Torphichen, L.

Greenway, L.

Tranmire, L.

Gridley, L.

Trefgarne, L.

Hailsham of Saint

Trumpington, B.

Marylebone, L.

Vaux of Harrowden, L.

Henderson of Brompton, L.

Vickers, B.

Hornsby-Smith, B.

Vivian, L.

Killearn, L.

Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.
7 p.m.
Baroness Trumpington: My Lords, in moving that further consideration of this Bill on Report be now adjourned, I should perhaps say for your Lordships'

457
convenience that we shall not return to the Bill until 7.45 p.m. I beg to move.
Moved accordingly, and, on Question, Motion agreed to.

Royal Assent
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Finance Act,

Appropriation Act,

Prescription and Limitation (Scotland) Act,

Cable and Broadcasting Act,

Repatriation of Prisoners Act,

Health and Social Security Act,

Trade Union Act,

Shrewsbury and Atcham Borough Council Act,

Dartford Tunnel Act,

Portsea Harbour Company Act,

Cornwall County Council Act,

British Railways (No. 2) Act.

Motor Vehicles Tyres (Safety) Regulations 1984
Lord Lucas of Chilworth: My Lords, I beg to move that the draft Motor Vehicles Tyres (Safety) Regulations 1984, laid before the House on 27th June, be approved.
These regulations have been laid in draft under powers contained in the Consumer Safety Act 1978. They form the second part of the department's measures to improve tyre safety. The first part —improved tyre tread depth—came into effect on 1st November 1983.
There has been widespread concern over the sale of potentially dangerous sub-standard tyres. Some motorists have been sold tyres whose speed capability is less than 20 miles per hour. These tyres come from defective batches which manufacturers sell cheaply for use on low-speed vehicles. Some manufacturers clearly mark the tyres to this effect, but others do not or unscrupulous tyre dealers buff off the markings before selling them to unsuspecting members of the public.
There has also been concern over the quality of some re-treaded tyres. Retreads (also known as remoulds) are tyres which, having worn out the tread pattern, are given a new tread to extend their life. A retread clearly is only as good as its casing. Unfortunately, unsuitable casings are sometimes used, or they are inadequately prepared, or the new tread is inadequately applied.
As a result, these regulations have been laid. If approved, they will make it illegal from 1st January 1985 to supply a new car tyre unless it is approved to the United Nations Economic Commission for Europe (ECE) Regulation 30 and marked "E". Tyres have to pass a searching combined load and speed performance drum test. It will also be illegal to supply a retreaded tyre unless it has been manufactured and marked in accordance with British Standard
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BSAU144b of 1977. This lays down requirements for examining and preparing the tyre casing before processing and the inspection of the finished tyre. It also requires retreaded tyres to be capable of being used at motorway speeds.
In future, manufacturers who downgrade sub-standard car tyres will be required to remove the "E" approval mark which will make it illegal to supply those tyres in the United Kingdom. Any manufacturer who ignores this requirement risks heavy fines and the withdrawal of his approval certificate to make tyres of the type in question.
The regulations have a wide scope and bite on all tyre suppliers, not just manufacturers. Tyre dealers, for instance, will have to take all reasonable steps and exercise all due diligence to avoid committing an offence.
We believe that these draft regulations are an important step forward in improving tyre safety. They have, quite deservedly, received widespread support, including that of the tyre industry itself. I believe that when these regulations are in force they will stop the sale of sub-standard tyres in this country. I commend the draft regulations to your Lordships.
Moved, That the draft regulations laid before the House on 27th June be approved.—(Lord Lucas of Chilworth.)
Lord Underhill: My Lords, I thank the noble Lord the Minister for outlining the regulations. I do not think that we need say much about them except that they are worthwhile and in the interests of road safety. I am very pleased that the noble Lord emphasised the fact that the tyre manufacturers have given them their full support. We know the problems that there are with certain re-treaded tyres.
Can the Minister say whether supplies of re-treaded or inferior tyres come in from overseas? If so, can we be assured that we can also stop their import, in addition to any police supervision that we may have when they are on a vehicle? Is there any reason why the date of operation is not until 1st January 1985 as regards the first use of the tyre?
Lord Beaumont of Whitley: My Lords, I, too, should like to thank the noble Lord the Minister for explaining the regulations, and join in congratulating the Government. This is the second part of their two-pronged attack on the tyre problem. The way they have tackled it and have succeeded in producing the regulations is admirable.
Lord Lucas of Chilworth: My Lords, I am most grateful to the noble Lords, Lord Underhill and Lord Beaumont of Whitley, for their reception of these draft regulations. The noble Lord, Lord Underhill, asked about the date for bringing into effect the regulations. Of all the organisations representing the tyre industry which we consulted, only the British Rubber Manufacturers Association said that three months was sufficient. The National Tyre Distributors Association, which represents the tyre dealers, said that its members probably needed six months to clear old stock. The ITMA, which represents foreign manufacturers, also said that its members needed at least six months. That seems a not unreasonable timescale.

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Overseas manufactured tyres will have to comply with ECE Regulation 30 and be suitably marked, as will any re-treaded or remoulded tyres from overseas. They will also have to conform to the British standard. I do not have it to hand, but I am sure that noble Lords will accept that it clearly sets down the markings that re-tread or remould tyres must have.
I am grateful to both noble Lords for underlining the importance of the regulations. As the House will know, very many accidents are caused by the ill-use of certain tyres. We are sure that when the regulations come into force they will have a marked effect in reducing certainly the risk of accidents due to tyre failure and inadequate tyres. I commend the regulations to the House.
On Question, Motion agreed to.

Industrial Training Levy (Engineering Board) Order 1984
7.9 p.m.
Viscount Long: My Lords, I beg to move that the draft Industrial Training Levy (Engineering Industry) Order 1984, laid before the House on 4th July, be approved.
The order is before your Lordships today because levies in excess of 1 per cent. require an affirmative resolution of each House under the Industrial Training Act 1982. Noble Lords are aware of the importance of the engineering industry, which is the largest manufacturing sector in terms of employment. Engineering output rose in the seond half of 1983, and there are signs that this growth will continue. It is important, therefore, to ensure that adequate training takes place in the industry so that economic growth is not hindered by skill shortages, as has sometimes happened in the past. The levy is expected to raise about £130 million before exemption, and will be used for necessary training in the engineering industry.
The levy covers the period to 31st August 1984, and is in two main parts. The first is mainstream engineering establishments—a levy of 1 per cent. of emoluments, of which 0.0625 per cent. is non-exemptible. The non-exemptible levy will be used to meet the major part of the board's operating costs. The exemptible levy will be used for grants and training programmes considered necessary by the board. Establishments employing fewer than 60 employees will be exempt from levy but may still qualify for certain grants from the board.
For establishments in the mechanical and electrical construction industry sector, the levy is in several parts. For off-site employees, no levy is payable by establishments of up to 30 employees. For establishments of more than 30 employees, 1 per cent. of total emoluments is payable, of which 0·15 per cent. will be non-exemptible. For site employees, no levy will be paid on the first £50,000 of emoluments; on emoluments over £50,000 a non-exemptible levy of 1·12 per cent. will be payable. The main product of the levy will be used to finance training initiatives to meet the sector's needs.
The proposals were agreed unanimously by the employer and employee members of the Mechanical
460
and Electrical Construction Industry Sector Committee and were endorsed by the board without dissent. The Board has received letters of support from the two employer organisations in the sector, The Oil and Chemical Plant Constructors' Association and the National Engineering Construction Employers' Association, as well as a number of firms not members of the association. There is thus consensus in the industry for the proposals as required by the 1982 Industrial Training Act. I therefore recommend the Order to your Lordships. It has widespread support and is very necessary to meet the industry's training needs for the future. I beg to move.
Moved, That the draft order laid before the House on 4th July be approved.—(Viscount Long).
Lord Dean of Beswick: My Lords, I am grateful to the noble Viscount for the constructive and informative manner in which he has introduced this order. Before I became a Peer and was sent to this House, when I was a Member in another place, I was a person employed in general engineering. Because of belonging to that particular industry, I am as aware as probably most Peers, and perhaps better informed, on the subject of the rundown in skilled apprenticeships in that particular industry.
Having said that I welcome the order, may I say I have one little worry about it, which is that unfortunately, it does not go far enough. Obviously public expenditure has a great hearing on this. There is no question at all that more apprentices are required for general engineering in this country at present. I am glad to see the proposals have the support of the Oil and Chemical Plant Constructors' Association and the National Engineering Construction Employers' Association. These are very big employers of people and usually operate in some of the better areas for our export performance.
One of the points which worries me is that there does not appear to be any provision in this order for what I would call specialised apprentices' training. If we look into the future of the engineering industry itself, even looking at the general concept or picture, it is obvious that because it is such a broad based industry varying from machine tools to highly technical, modernised equipment, we are dealing with areas that are now becoming almost industries of excellence, industries of the future. I should like to see the Government in their next round of dealing with this particular industry, providing some kind of funding for this. There is no doubt that our seed corn for the future are highly trained youngsters in specialsed industries which are able to compete with our industrial rivals from abroad.
I see the estimates of some of the engineering employers. They are on record as stating that they should like to see a production of 13,000 apprentices annually in training. I understand that the present figure will be 6,000 from the training board scheme itself and 1,500 from the youth training scheme. So this is a step in the right direction. I think this illustrates the point that I am trying to make, that if there is an upturn of a considerable dimension in this particular industry we will be lacking in apprentices needed to train and in apprentices on site to take up these particular posts as they are created.

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Nothing could illustrate this more than some of the figures that were given in the debate in another place on 19th July when it was stated at col. 5 of the Official Report of the Fifth Standing Committee on Statutory Instruments:
"A recent NEDO report has confirmed for the Government what the Labour party and the trade unions have argued consistently for many years: that, in comparison with all our major competitors, we have failed to train our work force. The report mentions Germany and Japan… We spend only half of the £8 billion spent by the Germans on training".
I think this indicates the kind of targets that we must aim for. If we are going to compete on level terms with the advanced industrial nations, certainly the countries in Europe which are almost on our doorstep—for instance Germany and France—we have to have the input at the bottom end of the industrial scale with highly skilled apprentices who are able to give the industry the benefit of their skills on equal terms with our contemporary rivals in the EEC. But having said that I look forward to future orders of this kind that perhaps may be able to deal more generously with the situation than the present one. However, having said that, I welcome the order.
Viscount Long: My Lords, I am most grateful to the noble Lord, Lord Dean of Beswick, for supporting this very important order. He asked me one or two questions. Before I answer them, I should like to say that I am glad that he, like me and others in your Lordships' House, realises how extremely important it is that we have money in order to train these apprentices. Because when we come out of the recession, if we have not got the skilled labour in the form of a skilled man behind the lathe or whatever machine it is, then we will be hampering economic growth and there will be a tremendous shortage. So I am most grateful for the way that the noble Lord has brought out that point.
He also said that he felt that for the specialised apprenticeships, the Government were not doing quite enough in that direction. I should say to the noble Lord that the Government are at present running apprenticeship schemes for technicians—which is what he was really referring to—and foundry pattern makers, as well as encouraging employers, through the exemption scheme, to train apprentices.
In saying that, I sadly agree that there is at the moment a slight decline in apprenticeships. But we hope, as time goes on and the money is provided for them, to make them come forward. The financial side is agreed by the employers and the unions. So, having said that, then it is up to the employers, whatever their levy is for the year, to deal with it. If more finance is needed, then an agreement must be sought. Having said that, I hope I have answered the noble Lord who has questioned me very kindly on this matter. I beg to move.
Lord Dean of Beswick: My Lords, may I with leave briefly ask the Minister something? Just to illustrate the importance that I and other noble Lords place on apprenticeship training, I was rated as a highly skilled man in my job. I left the industry 12 years ago. If I were to re-enter it now, I would no doubt find it a strange, new world. That is why I think this type of activity is so important.
On Question, Motion agreed to.
Lord Lucas of Chilworth: 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.
[The Sitting was suspended from 7.20 to 7.45 p.m.]

Police and Criminal Evidence Bill
[Consideration of Amendments on Report resumed.]
Clause 41 [Authorisation of continued detention]:
[Amendments Nos. 81A and 82 not moved.]
Clause 42 [Warrants of further detention]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 83:
Page 40, line 23, after ("application") insert ("on oath").
The noble Baroness said: In moving this amendment, I should like to speak also to Amendments Nos. 84 and 92.
Amendment No. 84: Page 40, line 32, leave out ("it") and insert ("the information").
Amendment No. 92: Page 42, line 15, leave out ("be on oath and shall").
We realised in Committee, as a result of shrewd amendments proposed by the noble Lords, Lord Mishcon and Lord Hutchinson, that in Clause 42 we had got our informations mixed up with our applications. I promised then to unmix them. At least, I think that it was actually my noble friend who promised to do so. The information supporting an application for a warrant of further detention will be in writing. There is therefore no need for it to be on oath, as the Law Society has pointed out. This was the point made in Committee by the noble Lord, Lord Mishcon. Amendment No. 92 accordingly removes this requirement from subsection (14). It is the application that should be on oath and Amendment No. 83 ensures this. Finally, what the detained person should have is not a copy of the application but the information. Hence Amendment No. 84. I beg to move.
Lord Mishcon: My Lords, I am endeavouring with due modesty to take the very courteous speech of the noble Baroness on board. I am most grateful to her for what she says and I am most grateful for the amendments.
On Question, amendment agreed to.
Baroness Trumpingtonmoved Amendment No. 84: [Printed above.]
The noble Baroness said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments No. 85A and Nos. 86 to 91 not moved.]
Baroness Trumpingtonmoved Amendment No. 92: [Printed above.]
The noble Baroness said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 93A not moved.]
Clause 43 [Extension of warrants of further detention):
The Deputy Speaker (Lord Hayter): My Lords, Amendments Nos. 94 and 95 are alternatives.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 94:
Leave out Clause 43 and insert the following new clause:
("Limit on detention.
43. No person shall be kept in police detention under this Part of this Act for more than 72 hours without being charged.").
The noble Lord said: My Lords, this is undoubtedly one of the most controversial but nevertheless one of the most important amendments so far as this Report stage is concerned. It is, in my submission, something that goes to the very root of the whole principle of the concept of detention.
My noble friends and I, over the earlier courses of the Bill in this House, had taken the view, greatly though we respect the noble Lord the Minister, that it might well be that in this House and in another place the Government had taken too lightly the concept of detention. We take the view that detention is something far more fundamental and epoch-making in relation to the administration of our criminal law than the Government would have the community believe. Up to the passage of this Bill, which we apprehend will in due course take place, the whole basis of detention is non-statutory. Indeed, one could put it another way and say that detention previous to charge is in many cases unlawful in the procedures of England and Wales.
Therefore, on any view, the legitimation of the process of detention is a very serious inroad into private liberty. Indeed, in my submission, it is one of the most massive inroads into private liberty made in this century. It is an inroad which will have many direct and many indirect effects. One of the direct effects of this concept will be that the time limits which appear in the Act, whatever they be, will inevitably have their effect upon the way in which learned judges exercise discretion in relation to applications for writs of habeas corpus.
Secondly, inevitably a new psychology will prevail among police offices as to the length of the period for which it will be appropriate to detain persons before charge. And inevitably, in my submission, the idea will gain currency that the maxima laid down in the Act can properly be regarded as the norm. In my respectful submission, police officers would be less than human if they were not to act in that way.
There are, we maintain, two very considerable safeguards which should be considered. One is the presence of a solicitor at the point in time when a person is actually questioned. The House has heard numerous debates in relation to that matter. The other is to fix an absolute limit as to the total period during
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which a person can be kept in custody without charge—to set, as it were, a "ne plus extra" limit and to say, "That is an absolute barrier, and beyond that limit one shall not go".
That of course is what the provisions of Clause 43 bring about, and the whole purpose of this amendment which I am now moving is to say that that limit shall not be 96 hours but shall be 72 hours. If I may digress for a moment before coming to the question of whether it should be 72 hours rather than 96 hours, I would say that we do not regard the setting of a lower limit at 72 hours as being in any way alternative to the right of a person to have his solicitor present from an early stage in these proceedings. They are parallel rights. Each of them is an important basic human right, but they are utterly different rights.
The right to have a solicitor present is an important right at that point in time when the subject is actually being questioned. One can say, without being over-emotive, that of all the experiences that a person has in life, probably there will be no moment when it is more important for him to have legal advice and the support of a professional legal adviser than that exact moment in time. But the House has already dealt with that matter. I do not want to go back on that, though I thought it right to comment on it because it sets the framework, as it were, for this amendment.
During the course of a period in custody that might last many scores of hours, it may well be that the period of actual questioning will not take more than perhaps an hour-and-a-half in total, in two or three sessions. In between those periods of questioning there will be long, lonely periods of custody and of uncertainty. A person may be questioned three times inside the space of an hour. Then perhaps he will be left alone for 30 hours, visited only by the gaoler bringing his food and hearing only the occasional noise in the corridor outside of somebody checking to see if he is all right. He will be waiting all the time for the key to turn in the door and for someone to come to question him a fourth time.
I cannot remember the exact quotation; I think it is in Oscar Wilde's Ballad of Reading Gaol that he describes custody as being a situation where every minute is an hour, and every hour a day, and every day a week. All effluxion of time is relative. We talk, perhaps fairly lightly, of 72 hours or 96 hours as being a fairly limited period of time. To a person in custody —I hope the House will not misunderstand me—it can be a form of torture. It is not of course designed as torture by the police officers concerned, but it can be the most effective form of torture imaginable when a person is left there, lonely and uncertain, with only the agony of his own thoughts and doubts.
One could go on for a very long time in sketching, as it were, the background to this issue. Bearing in mind that the House has set its face against giving a person an absolute right to have his solicitor present when questioned, we say that the absolute limit or the total period of custody should be 72 hours; and in saying that we are convinced that that is a very long and substantial period, and correspondingly a very serious and massive inroad into private liberty.
On earlier occasions the House has heard quoted a considerable amount of data, and I am not going to

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repeat it. I make these points very generally. In every other common law country, detention for a period of 72 hours, quite apart from 96 hours, is very excessive. Taking a whole range of countries in the world, I think one would have to go to Ethiopia before one found a country that had a comparable period of time allowable for detention without charge. From the data published by the Home Office and other reputable bodies, it appears that about 98 per cent. or so of persons who are kept in detention without charge are released by the end of a period of 24 hours. It is only in the most exceptional cases that a person would be detained as long as 72 hours.
It seems that what the Government have done here, in my submission rather cynically and capriciously, is to say, "Well, although in 1983, in the metropolitan police district, there weren't any persons kept for as long as 96 hours, we will say 96 because it is 24 hours beyond the limit that we were ever pushed to in relation to any specific case". That is not the way to deal with human liberty. I beg to move.
Lord Denning: My Lords, I am sure that your Lordships will all be impressed with the eloquent words of the noble Lord, Lord Elystan-Morgan. It is a new feature in our English law that there should be police detention and time limits set. Therefore, it is most important to get it right if we can.
I can well understand that there is the protection of the application to the magistrates' court after 36 hours and then for the magistrates' court, comprising two magistrates, to consider whether further detention is justified in all the circumstances of the case. That is a judicial body which should be well trained and experienced in matters of individual liberty.
I can well understand that the circumstances of detention may be oppressive—indeed, they may be so oppressive almost as to negative any confession that is made. Indeed, under the later provisions of the Bill they would negative any confession. But this is a matter of judgment. I happened to speak to one of the Lord Justices who is most experienced in our criminal law, namely, Lord Justice Lawton. It was his view that 96 hours was just about right. I would not set my own experience against his, but in view of the inquiries which I have made I would, on the whole, support the Bill and not the amendment.
Lord Donaldson of Kingsbridge: My Lords, I do not really think that this is a legal question. It is a moral question, and therefore I do not pay the same respect to the views of eminent lawyers as I do on legal questions. In my view, 72 hours is already an excessive period to keep anybody in detention for questioning and I am very happy to support the amendment.
Lord Elton: My Lords, this Bill imposes a general and absolute limit on detention without charge of 96 hours. In certain circumstances, where a person is arrested in one part of the country and has to be transferred to another, the total time in police custody may exceed this figure, but the introduction into the law of an overall limit is a safeguard against unnecessarily prolonged detention, which is entirely new to the statute book. I would reflect that so often noble Lords make speeches as though what we were introducing
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was some new threat to the liberty of the individual, when in fact what we are doing is introducing a new safeguard to the liberty of the individual, because hitherto there has been no limit and we are proposing one.
The Bill introduces certainty into a part of the law which the courts themselves have held to stand badly in need of clarification, and it also places an absolute limit on a power which the Royal Commission proposed should be renewable without such limit. We considered the Royal Commission scheme, but we felt that a scheme of detention which was open-ended in the way in which they proposed could not command public confidence. We thought that there must be an absolute limit to it and we then decided that the correct limit was 96 hours—and in view of what the noble and learned Lord, Lord Denning, has said, we are not alone in thinking that that is the right time to choose.
The noble Lord, Lord Elystan-Morgan, gave a sketch of how he thought we had arrived at the figure. He thought that we had looked at various areas and decided that nothing took 96 hours and therefore it was safe to put the limit there. He was not, in fact, exactly right. We arrived at the figure only after a careful consideration of the experience of the police and the Customs and Excise in dealing with complicated and difficult cases involving major crime. We looked at cases in which prolonged detention had occurred and asked whether the investigation could have been concluded more quickly, and if so how. It became clear that in some cases 96 hours had been necessary, and we provided in the Bill accordingly. Other cases have, indeed, taken longer—and I repeat that for the benefit of the noble Lord: other cases have, indeed, taken longer—but most, even of sophisticated and conspiratorial crimes, can be brought to charge within this time and so we thought it right to place the stop at that point.
It can be argued that as it is very rare for detention to exceed 96 hours, the introduction of the limit is not much of a safeguard and therefore it should be less. That, in effect, is what noble Lords opposite are doing. But the shorter the allowable time the more cases there will be in which criminals will have to be released, some of them to vanish for good, simply because the police will not have had time to complete their cases. We have chosen a level which gives enough time for very nearly all the cases. To argue for less is to argue, therefore, not for the protection of those who are unjustly accused, but for the escape of those who are genuinely guilty. There is no merit in imposing a limit which is less than the time now spent only because it is less. When the noble Lord, Lord Donaldson, argues for that, he is arguing with his heart rather than with his head. I think that the reduction in time might satisfy the emotions of some, but it can scarcely convince the intellects of any. We have to legislate with our heads as well as with our hearts.
Some limit there ought to be—we are all agreed about that. We do not want the police to have a power which experience shows they do not need or which they scarcely ever need. That is what we are proposing. By imposing it at 96 hours we ensure that they do have the power which experience shows they have needed in the past for really difficult cases, but we require them

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to ensure that such cases are completed within that time. That may prove very difficult and if apology is needed it is not to the movers of this amendment—it is to the police who will have to work under the brand new limit that we are already imposing upon them.
Let us consider what may arise. When a number of suspects are detained in connection with a single offence or set of offences, then their stories have to be checked one against the other. The interviewing officers have to meet frequently to compare notes and pool information. Identification parades may have to be held. There may be language difficulties, requiring interpreters to be found. Inquiries may have to be made to check alibis or to obtain other forms of corroboration. In one recent case a person who was in the end convicted of murder gave six different and conflicting explanations of his movements at the relevant time, all of which had to be followed up. The noble Lord, Lord Hutchinson of Lullington, in an earlier debate pointed out how extremely important it was to validate confessions as well as alibis; and that takes time. Inquiries may have to be made abroad. The suspect may require medical treatment. He will have to be allowed rest and refreshment. Your Lordships will remember that this is now mandatory and it is also a new provision under our proposals. Forensic tests may have to be completed. Extensive searches of premises may be required.
The fact that the police are generally able to bring their inquiries to a conclusion—even in the case of the most complicated major crime—within a period well short of 96 hours is a clear proof of their expertise and professionalism. Indeed, a number of the few cases in which investigations have gone wrong might have avoided injustice if more rather than less time and trouble had been taken because it is a question of time and trouble and the painstaking and methodical accumulation and analysis of evidence.
I was interested in the comparison which the noble Lord, Lord Elystan-Morgan, made. I think that on this occasion he did not fall into the temptation of looking at Scotland, but if I am wrong about that I am happy to respond. But I thought I heard him say that we would have to go to Ethiopia to find a country which had power to detain without charge for as long as we can. It may be that he is tempted by that particular bucket shop air price, but he only has to go to the Netherlands to find a period of 102 hours, and he only has to go to Sweden to find a period of 120 hours.
Lord Elystan-Morgan: My Lords, I am happy to be corrected; it was a very serious lapse on my part. I did intend to refer to the Netherlands, but in the context of having been condemned by the European Court of Justice for that very reason.
Lord Elton: My Lords, I am not familiar with the case and, therefore, I cannot say what was the basis of the dissatisfaction of the European court; whether it was limited to a pure regard for the clock or whether, as I suspect, it was also tinged by what happened during the period in question. It seems to me that the case of the Netherlands with 102 hours as opposed to our 96, and the case of Sweden with 120 hours as opposed to our 96, is, if we are to pray foreign countries in aid, perfectly valid.
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What do we expect in our country?—because this is, in fact, an English and a Welsh question that we are asking; not an Ethiopian question, nor a Dutch question or a Swedish question. We expect our police to question a suspect in order to establish his account of the facts, to check that account by outside inquiries, to interview witnesses, and put the facts to the suspect for him to explain, and to make certain that they have the right suspect. The great majority of all investigations are not complex and are concluded in a very few hours. In any complex investigation, however, there is therefore a continuous interplay of interview and legwork, and it does not consist simply of leaving someone locked in his cell waiting for the key to turn.
I have already explained that we did not pluck 96 hours out of the air. We looked at actual recent cases of serious crime which required extensive investigation, and found that only on rare occasions was 96 hours necessary. The investigations could not have been conducted more quickly or efficiently; if there had been a shorter limit on detention, the suspects concerned would have been released, gone to ground, destroyed evidence, covered their tracks or committed further crime. We have provided details of these cases to critics of the Bill and asked how they could or should have been handled better. This challenge has not been taken up.
It cannot be taken up because the figures that have been suggested as alternatives to 96 hours—and in this case it is 72 hours—have, it seems, been plucked out of the air. They are not based on any study of actual cases. They rest on pure theory. We are legislating, and it is not enough to juggle with theoretical figures; we have to fit the law to the actual needs of our people and the police who protect them.
But our scheme has not neglected the interests of the suspect and we have not assumed his guilt. A very crucial point in the scheme is reached at 36 hours. This is the point by which anyone detained without charge must be brought before a court, must have legal advice and must be represented. If the court authorises a further period of detention—and it can only do so in the case of the most serious crime and if the investigation is being conducted expeditiously—then it is clear that any questioning that then takes place does so with the suspect's co-operation, because it has to be expected by the court that it will produce results and if the response of the suspect (with the advice of his solicitor, which will be to hand) to the magistrate is that he will not answer further questions, then there is no purpose in the further detention. He will have absolute right of access to a solicitor and to have a solicitor present while he is being questioned.
So the prospect conjured up of someone being interrogated at length until his will crumbles and he is prepared to admit anything, true or false, is wholly misdirected and wholly fanciful. I concede that it was not advanced this evening, but it was advanced at an earlier stage. The suspect will be entitled to legal advice; there will be strict limits on the length of questioning permitted; there will be new safeguards for the young and the mentally handicapped, who are particularly at risk; and there will be at least a second inter partes hearing if the full 96 hours has to be used. All these go to show that the purpose of a 96-hour

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limit is not to give the police time to wear down a suspect, but rather to give them enough time to secure and verify enough evidence to establish the innocence of a suspect or to allow a fair trial to take place.
If your Lordships agreed to this amendment, you would be doing a great disservice to both the police and the people whom you wish the police to protect, and you will be doing so to no libertarian purpose at all. The Bill provides very ample protection for the innocent suspect. I hope that your Lordships will see that it also provides sufficient powers for the police because we have two jobs to do. One is to protect the innocent suspect—and noble Lords are very active indeed in that—and the other is to help the police to protect every other innocent citizen, of whatever rank, race or religion he may be, from the criminals who threaten him—and that is something on which we would also welcome support.
I hope that noble Lords opposite and your Lordships generally will see that what we propose is both necessary and just and that you will allow the police a proper power to operate under the scrutiny of the courts to do a job that is in all conscience difficult enough already.
Lord Donaldson of Kingsbridge: My Lords, before the noble Lord sits down, I should like to ask him a question for clarification. We are speaking about 96 hours. How many hours of those 96 are without the presence of a solicitor? I think that it is 36, but I am not quite sure.
Lord Elton: My Lords, it depends upon the case. It can be as much as 36 hours, but I was at great pains earlier this evening to explain to your Lordships how experience had proved in recent years that even without the safeguards limiting this use of time placed upon the police, the number of occasions when a solicitor is kept from his client for as much as 36 hours—indeed, for as much as 24 hours—is very few indeed. The number for the longer period amounts to 0·007 per cent. of all cases.
Lord Monson: My Lords, I should like to ask the noble Lord, Lord Elton, why the Government propose a maximum period of detention for England and Wales no less than 16 times longer than the maximum period of detention allowed in Scotland.
Lord Elton: My Lords, on the understanding that nobody else will intervene, I shall use the second shaft allowed me by tradition and by your Lordships' leave to reply to the noble Lord. He will be well aware that the structure of the law in Scotland, were a person has to be charged almost as soon as he is arrested, is totally different from that which applies here. We are looking at an amendment to reduce the time from 96 hours to 72 hours, and the question, therefore, is why noble Lords opposite want to have 12 times as much as the Scots. So I do not think that the noble Lord's question bears exactly on this case.
Lord Elystan-Morgan: My Lords, I am sorry to say that we are extremely disappointed with the noble Lord's reply. We are dealing with a matter of the utmost importance—of that there can be no doubt whatever. The Minister sought to justify 96 hours
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rather than 72 hours on the basis that there were a few cases—or that there could be a few cases over the years. I should like to make two points in relation to that. It is not for those of us who support the amendment to justify the reduction of that level from 96 hours to 72 hours; it is for the Government to justify that further inroad into private liberty.
Secondly, if the argument that the Minister proposes is to be accepted in logic, it is an argument which, if one accepts the basic postulate, is impossible to counter. In fact, if he says, "Indeed, there is only one case likely to occur over the next five years, so only one person will be affected", if there is general merit in that line of approach, it cannot be countered. The fewer the people, the stonger his position. In fact, if he were to say, "We do not think that there will be any case over the next five years, but there may be beyond that time", then he is in a completely fireproof situation. But is that a proper yardstick? Unless the Government are able to show that there is a reasonable number of cases that justifies this serious inroad, then, in my submission probably they are not entitled to say that they should set the limit at 96 hours. Indeed, if that is a good argument, why set it at 96? Why not make it 150 hours? Why stop there?
Lord Elton: My Lords, with your Lordships' permission, I think it would not be right for me to intervene before the noble Lord sits down because it would spoil his climax, and that is an unkind and discourteous thing to do. But he asked me some questions. I have some cases here. I do not think your Lordships will wish to hear them read out, but these cases are all from 1983. The three on the top of my file all fell between 72 and 96 hours. Having said that—and there are many other cases—I will merely leave the noble Lord with a question. Would he, if he were designing the runway at Heathrow, think that it was sufficient to have it only three-quarters of a mile long because very few aeroplanes took a full mile to pull up?
Lord Elystan-Morgan: My Lords, with the greatest respect to the noble Lord the Minister, for whose powers of reasoning, for whose wisdom and for whose personality in general I have very great admiration, I do not think that that is one of the best arguments that he has articulated in the context of this Bill in general. The main argument put forward by the Government is that this is a protection, and not an inroad. That argument simply cannot be sustained unless one ignores the fact that since the early seventeenth century we have had habeas corpus Acts to preserve a person's liberties from arbitrary arrest. The very fact of habeas corpus was the safeguard, and it is only if one turns a blind eye to that massive safeguard in our laws that one can say that there was no safeguard previously. The late Professor A. V. Dicey reckoned that the writ of habeas corpus was more valuable than a hundred declarations of human liberty. The question we ask is: after this 96-hour rule, what value will there be to the writ of habeas corpus within that period?
But the basic fallacy of the Minister's argument goes even deeper than that. It is that effective police questioning, effective police investigation and the efficient analysis of forensic evidence can only take

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place while a person is held in custody. That is nonsense, with great respect. Even in relation to the gravest crimes it happens often that a person will be brought in for questioning, he will be questioned for hour upon hour and nothing will emerge. He will then be sent home and sometimes will be bailed to appear on a future occasion—what lawyers know as Section 38 bail. Upon other occasions he will be allowed home without any commitment whatsoever and will be brought hack again and again. That, as so many of your Lordships will know, happens very often in murder cases.
However, the Minister seems to argue on the basis that unless a person is kept in detention the system simply cannot work. There are many more arguments, but those are the main ones, and they will not be improved by repetition. Therefore, on that basis we say that we are very proud to divide the House on this matter as we regard it as an issue of fundamental principle.
Baroness Macleod of Borve: My Lords, before the noble Lord sits down, I am sure he would want to be fair and acquaint the House with the fact that this is the first time as far as I am aware—I think it came out during Second Reading—that there has been a limit. There has never been a limit before, and it has now been settled at 96 hours. The noble Lord has been a lawyer, a barrister and a judge for many years, and he will be aware that an upper limit has to be set under which one can operate, from tines right through to terms of imprisonment. Someone may be able to he imprisoned by law for 20 years and they might be able to be fined £20,000, but that is the top limit. The Government think that 96 hours is the top limit, but it is by no means likely that a man will be kept in custody for the whole of that time. It is only fair to make it clear to the House that that is the operation of this amendment.
Lord Elystan-Morgan: My Lords, I have no doubt that the noble Baroness makes a fair point in relation to that matter. It is an absolute limit, as I understand it, so far as that particular session of detention is concerned. I believe I am right in saying that if that person is released he could be re-detained again and again ad infinitum. Perhaps the Minister will deal with that point.
Be that as it may, I accept that Section 43, in so far as that session of detention is concerned, sets an absolute limit. On the other hand, I think that the noble Baroness is mistaken when she considers that there were no limits before. The limits that existed before were such limits as, in the discretion of a learned judge upon an application fora writ of habeas corpus, he considered it proper to set. In a particular case he may determine that 20 hours' detention is too much and that the man must be immediately released. In another case he might think that 60 hours is the proper time. So there are such limits as are considered appropriate, within the bounds of judicial discretion, to each individual case.
Lord Elton: My Lords, we must not turn this into a Committee stage debate. I have been asked to give a statement of fact, and with your Lordships' leave I
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refer the noble Lord, Lord Elystan-Morgan, to Clause 46(6), which makes the hours in detention on separate occasions aggregate, and to Clause 42(19), where:
"A person released under subsection (18) above shall not be rearrested without a warrant for the offence for which he was previously arrested unless new evidence justifying a further arrest has come to light since his release".
So unless there is a new case to answer, at the 96-hour curtain it is finished, it is off. That is new, my noble friend is absolutely right, and I think your Lordships probably want to decide the matter.
8.27 p.m.
On Question, Whether the said amendment (No. 94) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 60.

DIVISION NO. 3

CONTENTS

Airedale, L.

John-Mackie, L. [Teller.]

Attlee, E.

Kilmarnock, L.

Beaumont of Whitley, L.

Lawrence, L.

Blease, L.

Lockwood, B.

Collison, L.

Meston, L.

Craigavon, V.

Mishcon, L.

Dean of Beswick, L.

Molloy, L.

Diamond, L.

Molson, L.

Donaldson of Kingsbridge, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Elystan-Morgan, L.

Ross of Marnock, L.

Ennals, L.

Stewart of Alvechurch, B.

Ewart-Biggs, B.

Stewart of Fulham, L.

Foot, L.

Stoddart of Swindon, L.

Gifford, L.

[Teller.]

Hooson, L.

Strabolgi, L.

Houghton of Sowerby, L.

Underhill, L.

Hutchinson of Lullington, L.

White, B.

Irving of Dartford, L.

Wigoder, L.

NOT-CONTENTS

Ailesbury, M.

Hornsby-Smith, B.

Airey of Abingdon, B.

Hunter of Newington, L.

Auckland, L.

Inglewood, L.

Avon, E.

Kinnaird, L.

Bauer, L.

Lane-Fox, B.

Beloff, L.

Long, V.

Belstead, L.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Bruce-Gardyne, L.

Masham of Ilton, B.

Caithness, E.

Massereene and Ferrard, V.

Cameron of Lochbroom, L.

Milverton, L.

Campbell of Croy, L.

Morris, L.

Carnock, L.

Munster, E.

Carthcart, E.

Norwich, Bp.

Coleraine, L.

Peyton of Yeovil, L.

Colwyn, L.

Plant, L.

Cork and Orrery, E.

Rankeillour, L.

Cox, B.

Rochdale, V.

Denham, L. [Teller.]

Savile, L.

Denning, L.

Skelmersdale, L.

Dilhorne, V.

Swinton, E. [Teller.]

Drumalbyn, L.

Teviot, L.

Elliot of Harwood, B.

Torphichen, L.

Elton, L.

Trefgarne, L.

Ferrier, L.

Trumpington, B.

Gardner of Parkes, B.

Vaux of Harrowden, L.

Glenarthur, L.

Vickers, B.

Gray, L.

Whitelaw, V.

Greenway, L.

Young, B.

Gridley, L.

Hailsham of Saint

Marylebone, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 95 not moved.]
8.35 p.m.
Lord Monson Lord Monson moved Amendment No. 96:
After Clause 43, insert the following new clause:
("Compensation for detention without charge.
. A person kept in police detention under this Part of this Act and subsequently released without being charged with an offence shall be entitled to compenation from Public Funds at the rate of £1 for every complete hour spent in detention in excess of six hours.").
The noble Lord said: My Lords, it would he nice to think that this amendment would find as much favour with the noble Lord, Lord Elton, as did my previous amendment. Somehow I have a premonition that this may not be the case. The purpose of this amendment is to provide a modest cash sum by way of compensation for those innocent—and I stress "innocent"—individuals who are detained in police custody under Part IV of this Bill and then subsequently released without being charged with an offence. The rate proposed in the amendment is deliberately modest in that it represents minimal compensation and not damages, punitive or otherwise; although it might be opportune to point out to your Lordships that paragraph 5 of Article 5 of the European Convention on Human Rights states that everyone who has been a victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Of course, it may well be that in future some detainees may claim that their detentions contravene paragraphs 3 and 4 of Article 5. On that we shall have to wait and see.
Nobody would pretend that a sum of £18 for 24 hours' detention, £42 for 48 hours' detention, £66 for 72 hours' detention or £90 (which would be the maximum) for 96 hours' detention would fully compensate any but a very small minority of innocent detainees in terms of worry, anxiety, loss of earnings and so on. None the less, it would partially compensate them for material losses suffered and, more important, the gesture would I think minimise the psychological stress of detention. Most important of all, the idea of partial compensation would, I believe, reconcile public opinion to this controversial part of the Bill. It is a great mistake to assume that it is only those on the centre or on the Left who are unhappy about it. A great many true blue Tories also have misgivings about this part, to my certain knowledge.
These are novel proposals but, apart from two exceptions that I shall come to in a moment, the same can be said for the detention provisions themselves. Novel problems deserve novel remedies. The exceptions that I mentioned are the detention provisions in the Prevention of Terrorism (Temporary Provisions) Act and the Northern Ireland (Emergency Provisions) Order. Both my noble friend Lord Hylton on February 6th and the noble Lord, Lord Fitt, on July 17th called for compensation for innocent individuals detained under those measures. So did the noble Lord, Lord Shackelton, on February 6th, certainly so far as some specific circumstances are concerned. Despite, or possibly because of, my strong support for the anti-terrorism legislation in question, I would certainly endorse those pleas. In other words, I believe that if we agree to compensation it should be consistent and apply across the board.
Now to the details of the amendment. I have not
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provided for any compensation for detention of less than six hours' duration. Although it is not very pleasant for an innocent person to be locked up for even six hours, one has to draw a line somewhere. The other reason is that the Scottish Act with a maximum period of detention of six hours, as we have already established, does not provide compensation for any innocent person detained for that period of time.
Your Lordships may have differing ideas about the adequacy or otherwise of the suggested £1 hourly rate; but the important thing is to get the principle accepted. The details can be adjusted at Third Reading. For the same reason, I have not at the present stage allowed for any indexation of the hourly rate against inflation. Again, this could he inserted at the next stage.
The noble Lord, Lord Elton, will doubtless point out that the people arrested, as opposed to merely detained and then later released, are not at present entitled to compensation. True, but in the very nature of things a greater proportion of those merely detained, as opposed to being arrested, where greater proof is required, are likely to be innocent. Nor has this proposal anything to do with Section 48 of the 1964 Police Act which empowers chief constables to pay damages and/or costs out of police funds in respect of wrongful acts committed by constables under their direction.
Absolutely no wrongdoing or even carelessness on the part of the police is implied by my amendment. It merely recognises that in an imperfect world honest mistakes—for example, mistaken identity—can and will happen. The right analogy, I suggest, is with expenses paid to those on jury service. Jurors, like innocent detainees, have to suffer inconvenience, possible discomfort, and certainly loss of earnings in order that the guilty may be convicted and punished. I am not one of those who are in favour of soft treatment for the guilty: quite the opposite, especially where crimes of violence are concerned. However, I am in favour of soft treatment—extremely soft treatment—for the innocent, both on the grounds of natural justice and because it will make the task of the police that much easier by getting public opinion more wholeheartedly on to the side of the law. I beg to move.
Lord Elystan-Morgan: My Lords, we on these Benches have considerable respect for the principles which underlie the amendment moved by the noble Lord. However, having said that, at the same time we do not agree with the detail of the amendment, nor indeed the tactical approach that the noble Lord has adopted. For one reason, we think that although the modest sum that he stipulates for every hour of detention would not break police funds, nevertheless it might have a somewhat stultifying effect upon the attitude which the police should properly have in relation to the conduct of their investigations. Further-more—and perhaps even more important—there is the danger that if Parliament were to legislate that £1 an hour should properly represent compensation here, it might have some effect upon the levels of compensation which at the moment I apprehend are very much higher in those cases involving unlawful arrest. The sums of money that are regularly adjudicated by judges in our courts are at a very different level.

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Nevertheless, we think that the noble Lord has done this House a service in raising this all-important question. Really, there are two questions. One is the general point of whether the Government intend to take seriously the obligations of the United Kingdom under Article 14, paragraph 6 of the United Nations Convention on Human Rights which has already been referred to by the noble Lord. We have been a signatory to that Convention for something like 18 years. and yet although we are tied by our obligations under that Convention to making some scheme of compensation payable for people who have been wrongfully deprived of their liberty, there does not seem to be the slightest intention on the part of Her Majesty's Government to take that obligation seriously.
The noble Lord the Minister, when dealing with this matter in October 1982, said in reply to a question from my noble and learned friend Lord Gardiner, that the Select Committee on Home Affairs was gestating in its views and deliberations upon this matter, and that eventually there would be some report which would deal with it. Article 14 paragraph 6, as I understand it, deals with those persons who have been convicted and who have later successfully had such convictions laid aside.
The question that is raised in the noble Lord's amendment is slightly different, but in a reply to a Written Question by my noble and learned friend Lord Gardiner on the 2nd December 1982. the noble Lord the Minister, was asked whether there had ever been made, and if so how often, any ex gratia payments to an innocent person who had suffered a period of imprisonment when on remand, pending his trial. The reply of the noble Lord was that when an ex gratia payment is to be made by way of compensation for wrongful imprisonment, the time spent on remand in custody is normally taken into account in the assessment of the sum to be offered. In a few cases, for example one in 1979, two in 1980 and one in 1981, ex gratia payments have been made to persons who have been remanded in custody but not convicted. This is very germane to the issue raised by the noble Lord's amendment, and I am sure that the House would wish to know what scheme, if any, and what policy the Government have in relation to such ex gratia payments. Is it intended that there should be a more formal scheme? Did the Select Committee on Home Affairs report upon such a matter? Generally, does the Government intend to place the matter upon a formal basis?
Lord Hooson: My Lords, I have a considerable respect for the views of the noble Lord, Lord Monson, and I entirely share the sentiments that he expressed in moving this amendment. I am very sorry that I did not see him beforehand to tell him what my rooted objection is to this particular amendment; it has only crystallised in my mind as I have listened to the debate.
It seems to me that there is a basic objection to going down this route. which is that if compensation is paid it will be regarded by the police as a criticism of them. Therefore, in any given situation they will be tempted to lay the charge and allow the magristrate to dismiss
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it rather than risk the suggestion that they are being criticised. If the penalty were higher, there would be an even greater temptation to do that.
Nevertheless, dealing with the matter entirely as a matter of principle. I wholly agree with the general views that the noble Lord, Lord Monson, has expressed, but I think that following this line of approach would be counterproductive to what we seek to achieve.
Lord Gridley: My Lords, is saying that I could not support the amendment of the noble Lord, Lord Monson, may I refer to something nearer home which has occurred this week? I asked a Question of Her Majesty's Government on whether they know that a Russian ship, destined for this country but diverted to a dock in Hamburg, had been found there with two millions pounds worth of heroin destined for Britain. It was in Hamburg because of the dock strike and certain people had been detained by the Hamburg authorities. If we were to go ahead with an amendment of this kind, it is not inconceivable that to come to a satisfactory solution with regard to the investigations which were carried out in Hamburg, our authorities in this country might well be detaining people in connection with that offence which was discovered overseas—in other words, an international ring of smugglers.
In the circumstances, I think it is unreasonable to fetter the police with an amendment of this kind when investigations might turn out to last very much longer than six hours and the people they pulled in in this country might well be innocent of any offence, but nevertheless they have to be called in in order to investigate.
Lord Trefgarne: My Lords, I hope your Lordships will accept my presence at this Dispatch Box as a pale imitation, if not a pale shadow, of my noble friend. I sympathise with the desire of the noble Lord, Lord Monson, to compensate those detained and then released without charge. I do not pretend that being detained by the police for a lengthy period is likely to be other than an unpleasant experience for the person concerned; but the noble Lord's scheme would compensate him financially whatever the circumstances, and that is indeed a radical departure.
There are many ways in which the work of the police may result in a member of the public suffering some detriment. If a person believes that he has suffered because of police action he may sue the chief officer, and the police authority must pay any award the court may make. But in deciding whether the police are liable for the loss the court will consider the individual circumstances and, in particular, whether the police acted reasonably in pursuance of their duties. If the court concludes that the police have used their powers reasonably, it is not likely to find them liable for the loss. It is still open to the police authority, however, to make an ex gratia payment if it considers it appropriate to do so. But, again, a court in considering the level of compensation, or the police authority in determining the ex gratia payment, will take into account the individual circumstances involved, such as the extent of any loss, the distress suffered and whether the person concerned contributed in any way to his misfortune.

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What the noble Lord, Lord Monson, proposes in this new clause is an automatic right to a set level of compensation. There is a presumption that the released person has suffered a detriment for which the taxpayer or the ratepayer—the clause does not say which—should compensate him. Furthermore, the presumption is that the detriment is the same in every case. for the compensation is at the same rate. So there is no decision as to liability, no decision as to whether a detriment has been suffered, and no decision as to the extent of that detriment.
I am sure that we can readily think of circumstances in which compensation is not appropriate at all; for example, when a person released on one occasion is subsequently charged with the suspected offence after further enquiries, or where a person has deliberately cast suspicion upon himself. Yet in this area of police activity it is proposed to substitute the general judgment of Parliament for the judgment of the court in individual cases.
I think it is clear what would happen. Anyone with time on his hands and a shortage of money would walk into a police station, confess to murder, spin matters out for more than six hours and then retract. I believe that, serious as this area of activity is, and involving as it does a temporary loss of liberty, we should nonetheless be wary of trespassing upon issues which are properly for the civil courts.
The noble Lord, Lord Elystan-Morgan, referred to our international obligations; but they, of course, relate to unlawful or wrongful detention. If there is such detention, then the person may seek redress by suing. The amendment provides for compensation irrespective of the fault, which is of course another matter altogether. I am told that the review of the criminal injuries compensation arrangements is still continuing. I am not sure whether there is anything to add to that, but if there is my noble friend or I will write to the noble Lord. However, I believe that it is a slightly different matter from the one contained in the amendment before us.
I hope, therefore, that on reflection the noble Lord, Lord Monson, will see the problems that his amendment poses, and will not wish to press it.
Lord Monson: My Lords, I am grateful to the noble Lords, Lord Elystan-Morgan and Lord Hooson, for their qualified support. To the noble Lord, Lord Elystan-Morgan, may I say this. I did attempt, obviously without total success, to make it clear that the sum I proposed represented only partial compensation—token compensation, one might say. I deliberately did not want to confuse it with compensation payable where wrongful behaviour on the part of the police was concerned, and where the compensation payable would be, rightly, of a quite different order.
To the noble Lord, Lord Gridley, may I say that I do not believe my amendment would in any way fetter the police. Certainly it is not intended to do so. We are, after all, talking about pretty trivial sums of money.
This leads me to what the noble Lord, Lord Trefgarne, has said. I contend that the low level of compensation I have proposed justifies the simplicity of my formula, which was meant to save a lot of
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money which would otherwise be involved in administration. I cannot believe there would be many people who would deliberately purport to be guilty and get locked up in a police station merely in order to gain a few pounds. But, having said that, I did not entertain serious hopes that this amendment would be accepted. I think it has been a most useful discussion; and with that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Searches of detained persons]:
Lord Elton Lord Elton moved Amendment No. 97:
Page 49, line 30, leave out subsection (1) and insert—
("(1) The custody officer at a police station shall ascertain and record or cause to be recorded everything which a person has with him when he is—

(a) brought to the station after being arrested elsewhere or after being committed to custody by an order or sentence of a court; or

(b) arrested at the station after having attended voluntarily there or having accompanied a constable there without having been arrested.

(1A) In the case of an arrested person the record shall be made as part of his custody record.
(1B) Subject to subsection (1C) below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained.
(1C) Clothes and personal effects may only be seized if the custody officer—

(a) believes that the person from whom they are seized may use them—

(i) to cause physical injury to himself or any other person;

(ii) to damage property:

(iii) to interfere with evidence; or

(iv) to assist him to escape; or

(b) has reasonable grounds for believing that they may be evidence relating to an offence.

(1D) Where anything is seized, the person from whom it is seized shall be told the reason for the seizure unless he is—

(a) violent or likely to become violent; or

(b) incapable of understanding what is said to him.").

The noble Lord said: My Lords, with your Lordships' permission, I will speak also to Amendment No. 98.
Amendment No. 98: Page 50, line 9. leave out subsections (6) to (8).
These are essentially drafting amendments which simplify the clause by bringing forward the substance of subsections (6) to (8). There is only one point to which I should draw your Lordships' attention. The scope of the clause is extended to cover not only persons brought to a police station under arrest but also those brought to a police station under an order of the court committing them to custody. The need to ascertain what property such persons have on them is clearly just as great as in the case of arrested persons. That is why we have extended it. I beg to move.
On Question, amendment agreed to.
Lord Eltonmoved Amendment No. 98:
[Printed above.]
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 97. I beg to move.
On Question, amendment agreed to.
Lord Eltonmoved Amendment No. 99:
[Printed earlier: col. 224.]
The noble Lord said: My Lords, I spoke to this little

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regarded amendment with Amendment No. 54, of which your Lordships took due notice. I beg to move.
On Question, amendment agreed to.
Clause 54 [Intimate searches]:
8.59 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 100:
Page 51, line 6, after ("him") insert ("either

(i) a Class A drug (as defined in section 2(1)(b) of the Misuse of Drugs Act 1971); or

(ii)").

The noble Baroness said: My Lords, it has been suggested that we should take Amendments Nos. 100 to 106 together.
Amendment No. 101:[Printed earlier.]
Amendment No. 102: Page 51, line 16, at end insert—
(" ( ) An intimate search of the genital or anal orifices shall be by way of an examination by a registered medical practitioner.").
Amendment No. 103: [As an amendment to Amendment No. 102]
At end insert ("or a registered midwife or a registered general nurse.").
Amendment No. 104: Page 51, line 18, after ("practitioner") insert ("or a registered midwife or a registered general nurse").
Amendment No. 105: Page 51, line 21, leave out ("constable") and insert ("trained nurse or midwife").
Amendment No. 106: Page 51, line 22, leave out subsection (6).
I come back to your Lordships, as the noble Lord, Lord Elton, advised at Committe stage, with an amendment which is narrower. This amendment now limits the power of search of carriers of controlled drugs to Class A drugs. These are the most dangerous drugs, such as heroin and cocaine. There is no doubt that they do terrible harm to the victims who take them.
If your Lordships agree to this amendment, it will still mean that the police will have fewer powers to search for drugs than they now have under the 1971 Misuse of Drugs Act. That Act leaves the sort of drugs open. The power for the police to search exists now. This Bill will remove it unless amended. The threat that someone can undergo an intimate search is a very important deterrent. Also, if someone is arrested and has concealed drugs, in most cases he takes them out himself when he knows that if he does not he will be searched.
The police are very worried that if this power to search goes, prostitutes will be used to carry drugs around the country. This, to them, could be easy money and less hard work than their usual job. A very tragic aspect of drug addiction is that many girls who cannot live without heroin turn to prostitution. as it is the only way that they can get the money to buy the drugs which they must have. Turning to crime is also a method of getting the necessary cash.
The flood of heroin is alarming. Your Lordships may be surprised when I say that a support group run by a Baptist minister exists in Harrogate, the mayor of Scarborough has told me that they have a problem there and in the village of Masham, in rural north Yorkshire, there is thought to be a pusher. The college staff at nearby Swinton, who run courses for young people from industry and for the unemployed, do not let their young people go down to the village. Is this freedom?
Dangerous addictive drugs have become a plague in our modern society. I know that the Government are making concerted efforts in other ways to try to catch the big pushers, but the small fish down the line can do just as much harm to the individual. Many people have seen those who become addicted destroy them-selves. Among other people, I asked two 17-year-old boys at random what they thought about intimate search for pushers. They both said simultaneously that search was necessary, though neither of the boys was a model of good behaviour. I also asked an Indian community worker from Bradford and he said the same. When talking to an Italian last Thursday, he was aghast when I told him that we would be the only country in Europe not to have this power.
My feelings are the same as those of the noble Earl, Lord Attlee, who said at the Committee stage:
"I personally am against intimate body searches, for various reasons: but I am far, far more against anyone and anything to do with drugs."—[0fficial Report, 9/7/84: col. 709.]
One of your Lordships gave me a leter from the laboratory of the Government Chemist, which reads:
"This laboratory has been collaborating with a UK industrial company in the development of a device which would detect the concealment of drugs such as heroin and cocaine."
As the noble Earl, Lord Halsbury, said at Committee stage, there are technical devices such as ultrasound which can be used instead of manual search. Progress in this field is advancing.
The Royal College of Nursing have given their unequivocal support. The recommendation of the Royal Commission on Criminal Procedure was that intimate body searches should be given legal authority. I personally feel, in the interests of health and safety for all, that there should be a clear code of practice and specially trained medical people to do it, if it is thought to be really necessary. This amendment has the full support of the all-party Parliamentary Drug Misuse Committee. I hope that if it is accepted it will help to close a loophole to pushers of dangerous drugs.
I end by saying, with every respect to the Minister, that your Lordships might be confused by Amendment No. 101 in the name of the noble Lord, Lord Elton. Clause 54 is not very clear, but I am told that "anything" in this case does not apply to drugs. As regards Clause 113(8) on page 101, I am told by an eminent lawyer in your Lordships' House that the definition does not apply to Clause 54 as the law would interpret it. It is not dealing with or describing serious arrestable offences—
Lord Elton: My Lords, will the noble Baroness and your Lordships permit me to intervene, because I think it will make things easier? I did not interrupt when the noble Baroness called the group as Amendments Nos. 100 to 106. She is quite right that Amendment No. 101 has nothing to do with this group and it has already been discussed with No. 36. So your Lordships need not be confused on that issue. I am sorry and I should have made it clear sooner.
Baroness Masham of Ilton: My Lords, I thank the Minister for making that clear. I do not think we should be vague about heroin. I now turn to the other amendments. Amendment No. 103 just adds the words,
"or a registered midwife or a registered general nurse",

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to,
"a registered medical practitioner".
It should be in the code of practice that all people allowed to do intimate search must be adequately trained to do it, whoever they are. I think that if nurses were attached to police stations, not only for searching but also for helping with many different problems such as the mentally handicapped, it would be better for the image of the police. A nurse, like a doctor, is professionally trained in a caring profession. A nurse would be neutral and would keep a balance. I also think that the services of a nurse would be advisable when using such equipment as ultrasound. A nurse could be easily trained to do it.
If Amendment No. 103 is added to No. 102, there will be three other amendments in the group. Perhaps the Committee will decide which are the most satisfactory. It will he much easier to make a decision about what to do when we have heard the Minister and other noble Lords. We must not forget that concern is mounting outside this House over the disastrous consequences of escalating drug misuse. If we do not do the correct thing, Parliament will no doubt be blamed for it. I beg to move.
Lord Mishcon: My Lords, I believe that the House—indeed, the country at large—will be very grateful to the noble Baroness for her pertinacity in moving this amendment on this occasion, altered as it is from the amendment that she moved at Committee stage, because of what the noble Lord the Minister very correctly said on that occasion about the inclusion of soft drugs. She can certainly count upon the support of my noble friends—if I may speak for them, as I am authorised to do on this occasion—in her desire to see that every conceivable step is taken to stop the filthiest trade that is ever practised in any country in the world, which this is. If we succeed in doing that, or at least in stemming it, we are not only catching people who deserve to be caught and brought under the criminal law, but we are most likely saving the lives of many young people.
It ought to be borne in mind, so we realise what we are doing if we pass these amendments, as I hope we shall, that we are merely giving to the police the same right that officers of Customs and Excise, as I understand it, have at the moment. We are protecting the position by ensuring that proper officers, such as doctors, midwives and qualified nurses, carry out these searches when they are required. I believe that the House will want not only to express gratitude to the noble Baroness but to do something practical by supporting her completely on this occasion.
Lord Hooson: My Lords, I am very glad that this bunch of amendments has been taken together. They cover a very sensitive but very important matter. I am entirely with the noble Baroness in what she seeks to achieve by Amendment No. 100. It appears to me that the pushing of Class A drugs is much more widespread throughout the country than is generally appreciated by the public. We hear a great deal about the black spots, but drug pushing on a considerable scale takes place throughout the country. However, one must look at the practical effect of the proposed amendment.
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It was the fertile mind of my noble friend Lord Hutchinson of Lullington which implanted this idea in my mind: let us take the noble Baroness's example that a prostitute is being used by drug pushers to carry drugs in an intimate part, that she is arrested and accused of carrying such a drug and that she immediately responds with words to the effect, "Push off, I've only got Class B". How is that situation to be dealt with under this amendment?
It seems to me that in theory the noble Baroness is right. My noble friends and I propose to support her amendment on the understanding that it might have to be tightened up later. The amendment appears to deal with the much greater potential evil than does Clause 54. If we look at subsection (1) of Clause 54:
"If an officer of at least the rank of superintendent has reasonable grounds for believing—
(a) that a person who has been arrested and is in police detention may have concealed on him an article which could be used to cause physical injury to himself or others and which might be so used while he is in police detention or in the custody of a court"
we see that it governs the rest of the clause.
I would make the point that we are dealing with a fairly rare circumstance. I was not present at the Committee stage but I have read very carefully what the noble Lord, Lord Elton, said about the subject. It seemed to me, as a result of reading his speech, that he had considered it very carefully. He gave as an example somebody who had a known suicidal tendency who had concealed razor blades and intended to use them. However, the danger of an unqualified person searching for the concealed razor blades might in that event be very much worse than just allowing the situation to continue. I have much more sympathy for what the noble Baroness proposes as the major reason for a search—that is, searching for, say, a Class A drug. The whole situation would, however, be changed if we removed the right of a police constable, however careful he or she may be, to perform the search. If we limit the right to search the anal and vaginal orifice simply to a qualified doctor, midwife or nurse, we remove the main objection that people would have.
I do not believe that an intimate search should in any event be embarked upon except in quite exceptional circumstances. That is generally agreed on both sides of the House. Nevertheless, when we agree about these exceptional circumstances we must go further. We accept the amendment moved by the noble Baroness to Amendment No. 102, which stands in my name and that of my noble friends, to add to the registered medical practitioner the registered midwife or the registered general nurse. If the amendment were accepted, the whole clause could, I believe, be accepted.
The Lord Bishop of Norwich: My Lords, I am glad to be associated with the amendment moved by the noble Baroness. I hope that Her Majesty's Government will give very serious and sympathetic consideration to it. It strengthens the Government's hand in showing the need for this at first very distasteful concept of intimate search. All of us recognise that it is distasteful and that there is the danger of deprivation of liberty. However, I remember that about half an hour ago the noble Lord used the phrase, "We have to legislate with our heads as well as with

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our hearts". I believe that the amendment tries to deal with the unpleasantness of the intimate search concept and strengthens the Bill by saying that there are real reasons today why such searches should take place under very stringent conditions. I am very glad that the noble Baroness has linked her speech with Amendments Nos. 103 and 104 which follow. I believe that nurses often have to do unpleasant things but they are, as it were, above the battle concerning the justice issue, and they are there to help with the mercy issue. I believe that if there were nurses linked with police stations in the same way as are police surgeons—even in the way in which this House depends on its own nursing sister, who is part of the community here—that would be good.
The second reason why I hope that Her Majesty's Government may well take this amendment on board is because it does seek to meet this new and alarming drug danger, which I believe is really reaching epidemic proportions. It is true that any Bill has a time-lag factor in it, and the painstaking drafting of this Bill must have taken place quite a long time ago as we know. I have done research on this drug epidemic, especially with young people. and drugs are being sold very cheaply to young people, who get hooked very early. We are not being alarmist but realistic when we talk about a drug epidemic. For those two reasons, I hope that the Government will believe that this amendment should he taken on board at this stage.
Lord Denning: My Lords, drug addiction is the greatest social evil of our time; drug trafficking is the greatest crime of our time. As the Lord Chief Justice said recently. all the first-class criminals are turning from bank robbery to trafficking heroin because it is less dangerous and more profitable. The cases in the courts illustrate how widespread the transportation of drugs is today.
There was a case in this House where a customs officer checked a car which was going through the Green Lane. He found in the deflated spare tyre in the back of the car packets of heroin. He turned to the man himself, undid his clothing and found more packets of heroin strapped to his body. The man said. "I did not know it was heroin; I thought it was just currency notes." And he got away with it.
The other case I wish to illustrate to you is where in Cambridge the police obtained a warrant to search a house for drugs. They found nothing in the house, but the owner happened to return while they were there and they searched him. He had a little tin on him containing a little plastic bag with a few grains of drug. He was in unlawful possession and was duly convicted. Those are instances of trafficking.
Surely, if this amendment is not passed it will be the easiest thing in the world to escape conviction. A prostitute, or any other woman employed by these people, can conceal drugs on her or inside her and then say, if the medical people or the superintendent authorises a search, "Oh, you can't search me, I can go straight through." It gives a licence to drug traffickers to go unscathed with these drugs concealed inside them.
For the prevention and destruction of this great evil and this great crime, surely there should be the power
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of intimate search. The search can only be authorised by a person of the rank of superintendent. He has got to have reasonable grounds for believing that there is a drug, so you do not search anyone who comes along; the superintendent has to have reasonable grounds for believing there is something there and that a search ought to be made for the purpose. If protection is given by saying that it should not be a police officer but a medical person or midwife, surely this amendment ought to be accepted by your Lordships.
Baroness Cox: My Lords, I wish to speak very briefly to these amendments, and with special reference to Amendments Nos. 103 to 106. in order to put the views of two of the Royal colleges most directly concerned. I have consulted both the Royal College of Nursing and the Royal College of Midwives and understand they support the view that, if intimate body searches are to be undertaken, it is clearly preferable that they should be conducted by members of the health care professions rather than by the police, for the very obvious reason that appropriately qualified, professional staff will be better equipped in terms of knowledge and experience and because it will be less humiliating—especially for innocent persons—to be searched by a member of the caring professions than by a police officer.
The Royal College of Nursing hopes also that the Government will take into account two other suggestions which I believe were made on previous occasions. First, it is suggested that such searches should be conducted in a clinical setting and not in a police station. Secondly, such searches should be carried out by a person of the same sex as the person being searched. I hope the Government will agree that all these suggestions are eminently reasonable and that they can help the professions concerned by assisting in making them legally acceptable.
Earl Attlee: My Lords, in Committee I supported the noble Baroness and said at that time that I was very much against intimate body searches—even more against hard drugs. I will now embarrass myself, but I hope not your Lordships. by speaking only to Amendments Nos. 102 and 103. Ferdinand de Lesseps built the Suez Canal but I had my canal rebuilt by Mr. Elton, a surgeon. I am sorry to say that there is no way I would allow a non-medical person to search me, because my rebuilt "Suez canal" is of such a size that unless someone was medically qualified they could do me an injury. I cannot be unique in this respect.
Quite honestly, I would rather not have to stand up and explain intimate medical details concerning myself to your Lordships, but it is a fact in my case, and it might be a fact in the case of other people. I would have no worry at all about any search, however intimate, made by a medical practitioner, midwife or nurse. Indeed, any Member of your Lordships' House who has had a haemorroidectomy will know that you were looked after by nurses who were very gentle and kind, and that there was no embarrassment at all. If these amendments are passed, there is no way that I would ever allow a policeman—whether he be a superintendent or anything else—to search me.
Baroness Elliot of Harwood: My Lords, as a vice-president of the Royal College of Nursing and a member of the drug committee which the noble Baroness, Lady Masham, has recently started, I become more and more horrified by the information that I receive through those organisations and by the appalling things that do go on and can go on if they are not stopped. I agree with everything that has been said, particularly by my noble friend Lady Cox, and I should like to support her in every way.
I am more particularly anxious that these searches should be carried out by nurses or doctors if the subject is a woman—or even if the subject is a man, that they should not he made by a constable but by a trained doctor. This is vital. We are legislating for something about which we have never had to legislate before and it gives rise to some terrifying and horrible thoughts. The only way that one can make such searches possible and tolerable is that suggested by my noble friend Lady Cox—by trained and expert medical people. nurses, general practitioners, or what-have-you. They should not be undertaken by people who have no experience. I hope the Government realise that we all feel frightfully strongly about this and that they will accept these amendments.
9.25 p.m.
Lord Donaldson of Kingsbridge: My Lords, I hope that the noble Lord will come back with an amendment on Third Reading incorporating Amendment No. 100 of the noble Baroness, with which I think we all agree, and a mixture of Amendments Nos. 102 and 103. This would then read:
"An intimate search of the genital or anal orifices shall be by way of an examination by a registered practitioner or a registered midwife or a registered general nurse of the same sex as the person being examined.".
That would cover the whole aspect and should be the end of the argument. I very much hope that that is what the noble Lord will say.
Lord Plant: My Lords. I have discussed this with various police organisations and they would very much welcome not having to do the search and that it should be done by a medical practitioner, midwife or nurse. What would horrify them would be if there were no powers for intimate body searches because then body orifices would become much more common hiding places. The police are certain that this amendment is essential in combating ingenious and inventive criminals.
The Lord Chief Justice said yesterday, or the day before, that there had to be a vigorous attack on the trade of heroin. I believe that the Government have taken note of that. We have to stop these evil people from plying their trade. If we do not pass this amendment, so ably moved by the noble Baroness, Lady Masham, I believe that we shall live to regret it. I had a similar amendment in Committee, but it was wider. I have not proceeded with that amendment because I thought there would be a greater chance of the amendment of the noble Baroness, Lady Masham, being supported. There has been a torrent of support and sympathy for this amendment; not only in this Chamber but certainly among the police, and I believe among the public.
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We must not protect the trade of illicit drugs. The police are united in support of this amendment. One reason why the Government have cold feet is because the BMA said that it did not want to undertake this unpleasant task. I have spoken to many doctors; they were never consulted by the BMA. Certainly police surgeons would undertake the task. We should carry this amendment because we have to decide what should be the laws of the country and we have to protect the citizens against the abuse and the use of hard drugs. If we do not carry this amendment, we shall be doing much to see that these evil people get their way.
Lord Gridley: My Lords, I should like to say a few words in support of the noble Baroness, Lady Masham, and the amendment which she has brought before us. I also say at the outset that I was involved for a number of years, not in this country but overseas, with international drug smugglers and people who smuggled heroin, opium and that kind of contraband.
I see tonight a greater urgency that the Government should take very quick action on the suppression of this evil. I support wholeheartedly what was said of these evil men by the noble Lord, Lord Mishcon. He said that it was an evil we had to eradicate as soon as possible.
I want to refer to an incident which happened in 1930, many years ago when I was the age of 24. The Colonial Office sent out instructions to Malaya, where I was serving, that the League of Nations, as it was then constituted, had given an edict to Her Majesty's Government that in the territories for which they were responsible they should carry out the suppression of opium smoking. We on the spot were put in a great difficulty. We had been getting a considerable amount of Government revenue from the sale of opium. run from Government shops. We had in that country Chinese, who were indigenous and who had been working there for many years, and it was a situation that we had to accept.
Nevertheless, we accepted the orders of Her Majesty's Government and immediately started to register smokers and ration them according to a medical report which came from the doctors. I consider that we succeeded in reducing the consumption of that narcotic, which to a large extent has the same effect as heroin. We succeeded in that, but we did not eradicate the smoking or otherwise taking of opium.
It has been reported in the press, and on wide and responsible authority, that heroin is in circulation not only in our cities but countrywide among many of our young people. I press my noble friend the Minister, who will be speaking to that amendment shortly, to listen sympathetically to everthing that has been said in this connection in your Lordships' House.
Finally, I say this. We have a moral obligation to protect the youth in this country. It is exceedingly difficult to eradicate something once addiction has been established. It looks like becoming established here if something is not done urgently to deal with the situation. I hope that Her Majesty's Government feel that they have a moral obligation not to he complacent but to act with the utmost urgency to deal with the situation.
Baroness Macleod of Borve: My Lords, I should like briefly to associate myself with everything that has been said tonight. I think that we have approached this grave subject practically, and that is the way that it must be approached today in this country. As we all know, there is a tremendous escalation of the problem. Ten days ago I was speaking at a local hospital in a certain part of the country. A magistrate came up to me and asked me about drugs. I said, "What about them?" She said that she would like me to know that on their bench they had had a survey done of only robberies in the past year. It was a large and busy PSD, and 80 per cent. of the robberries in that one area were connected with drugs.
I am sure that I need not draw your Lordships' attention to the fact that Clause 54(2) states:
"An intimate search under this section may only be conducted at a police station or at a hospital".
In view of what has been said today, I feel that we should perhaps consider taking out the words, "at a police station". There are certainly as many hopsitals as police stations. If we go along with what the noble Baroness, Lady Cox, and others said, and decide that those who are qualified in medicine should be the only people to conduct intimate searches, we should go one step further and say that they should be conducted in hospital.
Lord Donaldson of Kingsbridge: My Lords, before the noble Baroness sits down, may I ask whether she considers that under the amendment they could raise a qualified person in the police station; that is to say, a registered nurse? Would there be any objection then? It seems to me that if they can produce a medical practitioner or a registered nurse to carry out the search. it is unnecessary to move the person to a hospital.
Baroness Macleod of Borve: My Lords, as the noble Baroness said, it is very important that the search should be under clinical conditions; those do not often exist in a police station.
Lord Campbell of Alloway: My Lords, may I briefly say that it is not only a privilege but I consider it a plain personal duty to support these amendments.
Baroness Gardner of Parkes: My Lords, as I have added my name to that of the noble Baroness, Lady Masham, on the amendment, I too should like formally to support it. I think that everything has been said. I emphasise the deterrent effect that I think this power would exercise. In particular, the noble Earl, Lord Attlee, was very brave to make the statements that he did, which bring home to us how people would feel. I support the point that the searches must be conducted by suitably qualified people. On the point about the necessary clinical conditions, some police stations are large enough to have quite good clinical conditions. If that is so, there is no reason why the search could not be at a police station. It would depend purely on the standard of the facility available.
Lord Gray: My Lords, I should like to support this series of amendments. Faced with the obscentity of the increasing traffic in drugs, I think that we have a clear
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duty to give this power to the police in the manner proposed in this series of amendments.
Lord Elton: My Lords, with the greatest respect to my noble friend, almost everything has been said on this matter. However, I hope your Lordships will permit me to contribute my mite. I have a number of paragraphs describing how the Bill came to be as it is. I do not think your Lordships will wish to listen to the history. I will merely remind your Lorships that his power was in the Bill when we first introduced it in another place, but we took it out last summer owing to the repeated anxious reminders that we had from the medical profession that they were not happy with it. We had good reason for that. However, I would rather turn now to the amendments that are before us in this group and, as a preliminary, to refer, as did the noble Baroness in moving her Amendment No. 100, to something which I think is not entirely relevant but which was raised at the Committee stage and which ought to be laid to rest.
There was a reference to the ultrasonic—I think they were otherwise described in Hansard but the noble Earl, Lord Halsbury, assures me that "ultrasonic" was the word he meant to say—and X-ray devices which might be able to be used instead of the powers conferred in the Bill. There are two facts. one technical and one legal. which means that this is not the case. The technical fact is that there may be objects of a moderate or small size and of moderate density or reflectivity which might simply not be detected by the devices. The other is that even if you see that there is an object there you still need the power to remove it. So the power, the need to legislate, remains.
Let us therefore look at the various proposals now on the Order Paper and first consider those that concern the question of who may undertake an intimate search, regardless of what the search is for. As the Bill stands, it is only doctors or, if the participation of a doctor is impracticable, a police officer who may do it. In Committee there was a good deal of support on all sides for the proposals that nurses and midwives too should be eligible, as it were, on the basis that both their expert knowledge of the body and their ethical responsibilities made them better equipped to carry out a search than a police officer. My noble friend Lady Trumpington accepted that there was a strong case for this, subject to consultations with the professional bodies concerned. She also noted that this applied to any intimate search irrespective of the orifice concerned.
The consultations that we have been able to conduct in the short time available have produced support for this proposition. If a trained nurse or midwife can and is willing to undertake a procedure of this kind, then it is clearly better that they should do it rather than a police officer. Our consultations have thrown out various points of detail which will need to be resolved; for example, whether this extension of the power should extend to all or only to certain nominated nursing staff. But I am able to tell your Lordships that, in view of the general acceptance of the principle involved, the Government accept that amendments to the Bill for this purpose are desirable.
Two further questions arise, however, if nurses and midwives are authorised under the Bill to conduct

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intimate searches: first, whether there is still any need for the reserve police power in subsections (5) and (6); secondly, whether, as envisaged in Amendments Nos. 105 and 106, nurses and midwives should be so authorised only if it is impracticable for a doctor to be involved. As to the first question, my noble friend made it clear in Committee that we would still take the view that there is a need to retain subsections (5) and (6). She made the point then that the addition of nurses and midwives would reduce still further the already very small likelihood that a police officer would be called upon to perform an intimate search. But we still believe that it is necessary to provide for those very rare occasions on which it is simply not possible or practicable to secure medical or nursing assistance in time to be of use, as may be the case if a violent and disturbed person is brought to a police station under arrest.
We cannot be certain that the rapid removal of a concealed weapon will never take overriding priority. It might be very unlikely, but we have to legislate for all circumstances. It is for this reason that I would not advise your Lordships to accept Amendments Nos. 105 and 106, which would abolish this police reserve power completely. Nor, for the same reason, could I recommend Amendments Nos. 102 and 103, which seek to abolish the reserve power in respect of genital and anal searches only. I can see the obvious appeal of this since the genital and anal orifices are so much the most intimate of all body orifices and subject to the sort of difficulties that the noble Earl, Lord Attlee, has courageously referred to.
The amendments would not have ruled out the possibility of the police themselves searching David Martin, who had, of course, concealed a penknife in his mouth. Nevertheless, there have been cases where weapons have been concealed not in the mouth but in the other orifices. I shall not repeat the examples that I gave at the Committee stage because your Lordships will be familiar with them. What you are interested in is the principle of the availability of the nurses and midwives, and that we concede.
I believe that the evidence that we have shows that the risks of abolishing the reserve police power outweigh the risks of retaining it. What, in effect, I am asking your Lordships to weigh is a small risk of injury—we have no record of any such injury caused—against a very real risk of death. It must be right therefore to take the former risk.
Next, there is the question of whether it should be possible for searches to be undertaken by nurses and midwives only if the services of a doctor could not be secured whether because he was unavailable or whether because, like the noble Lord, Lord Pitt, he has ethical reservations about undertaking intimate searches. I do not think that it is desirable to establish a pecking order of this kind, which will take time in any case. I think that in the urgent circumstances we are talking about the first person qualified under the Bill available should be enabled to make the search.
To sum matters up so far, the Government support the approach suggested by the noble Baroness in Amendment No. 104. Some points of detail remain to be settled in further consultation. I hope that she will be content not to press her amendment now, but I
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willingly undertake to bring forward a Government amendment on the same lines at Third Reading.
I turn now to the question raised by Amendment No. 100. This seeks to extend the power of intimate search beyond the protective and into the investigative sphere. Of course, the possession of dangerous addictive drugs does raise issues concerning both the health and the welfare of the person concerned, and indeed of society at large. If there are reasonable grounds for believing that the drugs might be taken out and swallowed, then the powers in the Bill as drafted would come into play. One example which I spared your Lordships was of someone who had successfully committed suicide with tablets concealed in the rectum. But, in the context of this amendment, we are not talking about articles which present an immediate risk of injury but of helping the police to eradicate the foul menace of drugs by securing evidence to prosecute those dealing in them. What is proposed by this amendment, as by the Royal Commission, is essentially therefore an investigative power.
I explained in Committee why we were opposed to such an extension of the Bill drawing particular attention to the views clearly put to us by the medical profession. However, I said then that we would obviously need to reconsider the matter if there had been a change of view within the profession. I understand. as noble Lords have indicated, that there is now a better understanding of the terrible threat to the health of society as a whole posed by heroin and a recognition of the need to do everything that we can to counter this threat. I understand also that in certain circumstances and subject to strict safeguards, members of the nursing profession might be willing to remove dangerous drugs without consent.
In the light of these indications, tentative though they may at this stage still be, that the balance of professional opinion may be shifting, though still divided, in the light of the views expressed by noble Lords in debate, we accept that it would be unwise to shut the door for the foreseeable future on searches for drugs. Having said that, I should make clear that we remain firmly of the view that such searches where they involve actual probing of body orifices should never be undertaken by police officers. The situation is quite different from the protective search undertaken to remove a dangerous weapon. There, time may be of the essence.
In the case of drugs, a reserve police power would be inappropriate, both because of the risk to the health of the suspected person which would be posed by a procedure of this kind undertaken by an unqualified person, and for the community relations reasons which I stressed at Committee stage and which, I remind your Lordships, are one of the foundation stones upon which the Bill is erected. But, on reflection, we do accept that there is a case for permitting doctors or members of the nursing profession to remove class A drugs in the absence of consent in the interests of the health of the person concerned and that of potential victims of the drug menace. Of course, the Bill could not and would not require them to undertake any procedure. It would simply provide them with a protection in law against an action for assault if they decided that it would be consistent with conscience and professional ethics to

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assist the police in this way; so they would not be compelled, as it were—one cannot, I think, compel them—to make the search if they do not wish to do so.
The implications of what I have said require very careful thought. I could not advise your Lordships to accept Amendment No. 100 as it stands. In the first place, it draws in individuals suspected of possessing any amount of a class A drug, however small. But the target we are aiming at is the dealer and smuggler who keeps the engine of destruction fuelled. The Royal Commission recommended that the power should be restricted to evidence of the grave offences of supplying. importing and exporting controlled drugs. The scope of the power should, I am sure, be limited in this way.
Secondly, I believe that there may be a case for providing that it should be possible for such searches to be carried out, as my noble friends Lady Cox and Lady Macleod suggested, only at hospitals or doctors' surgeries by suitably qualified personnel. The need for a rapid search at the police station will not arise, and it is surely much better for all concerned that the procedure should be as far removed as possible from the arena of the police station. Of course, the noble Baroness's amendment as it stands leaves to the police a reserve power which neither she nor, I think, most of your Lordships—nor, as the noble Lord, Lord Plant, most helpfully told your Lordships, the police themselves—feel that they should be asked to use.
But these and other matters, such as those referred to by the noble Lord, Lord Hooson, and the question of sex mentioned by the noble Lord, Lord Donaldson, all require detailed working out with those concerned, and we shall undertake the necessary consultations over the coming weeks, during the Recess.
I hope that I have said enough to show the noble Baroness and your Lordships that she has persuaded us, with your Lordships' eloquent support, on to a new course; and to persuade her, therefore, to agree to withdraw her amendment now so that we can incorporate suitable provisions as a result of consultation during the coming Recess.
Lord Donaldson of Kingsbridge: My Lords, before the noble Lord sits down. I should like to say that so far as I can see there is only one issue remaining. I think the House and the Government agree that in general the noble Baroness's amendment should be worked out and agreed to. It seems to me that the point which still remains between us is whether there should be any power reserved for somebody other than a medical practitioner, or a trained nurse of either sex, or a midwife, to do this examination. On this side of the House we feel passionately strongly that there should not remain a right for the police constable to do this. We have got from the noble Lord no indication of what he thinks about this, and I think we ought to have something.
Lord Elton: My Lords, if the noble Lord will read Hansard, he will find that he and I are entirely agreed on this matter.
Lord Hooson: My Lords, before the noble Lord sits down, may I say that I have listened very carefully to
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what he said. He will forgive me for querying this, but in regard to the concealed weapon he said that there should be a reserve police power. That is what my noble friend was referring to.
Lord Elton: My Lords, I apologise; I thought we were discussing the amendment about searches for drugs, not the searches for weapons. I have addressed myself simply to that matter and I think I have made myself absolutely clear as to what are the Government's intentions. I feel like a partridge that has twice tried to settle and each time been shot at. I hope noble Lords will let me finally get to the ground.
The Lord Chancellor: My Lords, I am just wondering whether the noble Baroness wishes to reply to the debate on the amendment.
Baroness Masham of Ilton: My Lords, I should like to thank all noble Lords and noble Baronesses who have supported this, and to say a very big "Thank you" to the Minister and to the Government. Picking up the point made by the noble Lord. Lord Hooson, I want to say that at Committee stage I asked that very same question about how one defines whether the drug in question is heroin or cannabis. The police have drug squads. They are watching and they know the various dealers; at least. we hope they do.
That leads me on to the last point I want to make. Having read yesterday in the report of speeches at a law dinner that there are not enough police working in the drug squads. I hope very much that the Government will encourage more experts in searching for drugs so that we can catch these devils. With those comments, I beg leave to withdraw Amendment No. 100.
Amendment, by leave, withdrawn.
Lord Eltonmoved Amendment No. 101:
[Printed earlier: col. 221.]
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 36. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, the next amendment is Amendment No. 102.
Lord Monson: My Lords—
The Lord Chancellor: My Lords, the mover must move the amendment first.
9.52 p.m.
Lord Hoosonmoved Amendment No. 102:
[Printed earlier: col. 479.]
The noble Lord said: My Lords, I beg to move.
Lord Monson: My Lords. I apologise. I was not sure whether or not the noble Lord. Lord Hooson, was going to move the amendment, as he had spoken to it previously. I was under the impression that we were dealing essentially with Amendment No. 100, which I agree has been dealt with in a satisfactory way. However, I should like to say something about Amendments Nos. 102 and 103, because although I

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was extremely happy about the noble Lord's reply to Amendment No. 100, which stands in the name of the noble Baroness, I am not happy with his objections to—
Lord Mishcon: My Lords, I wonder whether the noble Lord will permit me to raise a point of order which can be decided by those much more experienced than I? The debate was conducted on a grouping which included all these amendments. The debate has been concluded, and concluded in a most satisfactory way with every point being dealt with. Even if the Minister did not agree with some of the things said, he said so, and they are under consideration. I do feel that we ought to get a move on.
Lord Monson: Of course, my Lords, if that is the wish of the House; but Amendment No. 100—
The Lord Chancellor: My Lords, I think I have called Amendment No. 102, and that it has been moved. Let me be sure where I stand. I understand that Amendment No. 102 was moved?
Lord Hooson: My Lords, I moved the amendment, but I was going to add that, in the light of the noble Lord's undertaking that the whole of the clause would be recast, I wished to withdraw it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 103 and 104 not moved.]
Lord Hunter of Newingtonhad given notice of his intention to move Amendment No. 105:
[Printed earlier: col. 479.]
The noble Lord said: My Lords, in the light of what the Minister has said. I shall not move Amendment No. 105.
[Amendment No. 105 not moved.]
[Amendment No. 106 not moved.]
Lord Eltonmoved Amendments Nos. 107 and 108:
[Printed earlier: cot 221]
The noble Lord said: My Lords, my noble friend Lord Trcfgarne spoke to Amendments Nos. 107 and 108 with Amendment No. 36. I beg to move both amendments en bloc.
On Question, amendments agreed to.
Lord Eltonmoved Amendment No. 109:
[Printed earlier: col. 224.]
The noble Lord said: My Lords, I spoke to Amendment No. 109 with Amendment No. 54. I beg to move.
On Question, amendment agreed to.
Clause 55 [Right to have someone informed when arrested]:
The Lord Chancellormoved Amendment No. 110:
Page 52, line 28, leave out ("without delay") and insert ("as soon as is practicable").
The noble and learned Lord said: My Lords, I am told that this is a drafting amendment. I beg to move.
Lord Mishcon: My Lords, the noble and learned Lord is as precipitate as he always is, but on this occasion not absolutely correct. We are dealing here with a very important clause about information being given either to a member of the family or to a friend that a person is in a police station. On the last occasion the noble Lord said that possibly the words "without delay" were difficult words to include in the Bill. although originally they were in the Bill, because it might mean that a civil claim arose against the police if there was one minute of delay.
This is an extremely important clause for people who are detained in police stations and whose families, as I am reminded, are so concerned and worried about them. The amendment now before the House is to substitute the phrase "as soon as is practicable" for the phrase "without delay". That can mean anything, and the police can decide that it really is not practicable because they have a number of other things—they may be quite minor things—to which to attend and they cannot send someone round to the house to say that someone is in the police station.
I am suggesting to the Minister—and indeed to the noble and learned Lord—that if the words were to be "without undue delay" (and he may wish to consider this), so that we are inserting the word "undue", that would meet the point, and we would not have the very wide term "as soon as practicable", which I humbly submit is not suitable in this context to protect the interests of the person who is detained.
The Lord Chancellor: My Lords, I understand that the noble Lord, Lord Mishcon. was good enough to give some preliminary indication of his remarks. and therefore I am in a position to reply to him as a result of his courtesy in so doing. I am advised that the phrase "without undue delay", which is what he has suggested, is actually a laxer test for the police because it suggests that some delay, whether or not necessary, is acceptable, provided that the delay is not great.
The purpose of this amendment is to make the language of the Bill consistent. The expression "as soon as practicable" occurs in other clauses in the Bill, such as Clauses 36(4), 56 and 57(3), and, as was pointed out in Committee on 9th July (at col. 736 of Hansard) in response to an amendment which would have substituted the expression "without delay" for the phrase "as soon as practicable" in Clause 57(3), one cannot sensibly require the police to do something sooner than it was practicable so to do.
I should have thought that it was desirable in itself that the Bill should at least be consistent in its terminology. The expression "as soon as practicable" is thought to be preferable because, with the best will in the world, there must occasionally be some delay. For instance, the telephone lines from one town to another may be engaged; or the custody officer may have to deal urgently with another person at the station who has become violent. There are innumerable reasons why from time to time some delay is inevitable. So long as the police are under a duty to comply with a request as soon as practicable, I am advised and I believe that that is enough. Therefore, I beg to move.
Lord Mishcon: My Lords, I am sure that the House will have been very pleased to hear the speech that the noble and learned Lord made on a drafting amendment. In the circumstances, I shall obviously consider what has been said but for the moment I sit down.
On Question, amendment agreed to.
Lord Giffordmoved Amendment No. 11OA:
Page 52, line 37, leave out ("36") and insert ("12").
The noble Lord said: This amendment is in the names of my noble friends on the Front Bench. Clause 55, as my noble friend Lord Mishcon said, deals with the very important matter of the right of somebody to have a friend or relative informed if he is under arrest. This is a different question from the right of access to a solicitor. We are not talking about the right to see someone, but merely the basic right for someone to know where you are.
The Bill proposes that that right can be denied, in certain circumstances, for up to 36 hours. One of the nightmares about a police state is the arrest in the middle of the night, the person being taken off to the police station and nobody knowing where he is. He is not able to get any message out about where he is. We all agree that there must be some limit on the time over which that can extend. The Government have proposed a limit of 36 hours: a limit which can be as much as two nights and a day, which we suggest is extreme to the point of inhumanity. It is not just a question of the person in custody not being able to get any intimation out to his relatives.
The code of practice in paragraph 5.5 states that where an inquiry as to the whereabouts of a detained person is made by a relative, the information will not be given if the provisions of this clause apply. In other words, the police will be entitled to deny to a relative who inquires, "Is my son at the police station?" and that can continue over a period of 36 hours.
Of course, there are conflicting dangers. There is the danger, which I am sure the noble Lord the Minister will tell us about. that if the news of an arrest gets out it can get to accomplices. But the dangers are surely limited. The news gets around particularly in the world of the criminal fraternity. We are talking in our amendment about a time limit of 12 hours which surely is a limit of what is reasonable.
Even if there is a danger, the danger must be tempered by the considerations the other way. Some of your Lordships will have received a letter from a distinguished professor, Professor Leigh of the London School of Economics. He says this:
"We must balance the interests of efficiency in investigation with that of the dictates of humanity. I cannot think it right that a person should be held incommunicado. It is a form of mental torture to which I would hope we in England would not subject fellow citizens."
Let us consider the dangers the other way round. When relatives find that one of their loved ones is missing, the anguish that that can cause is extraordinary. I recently had the privilege of chairing a committee of investigation into certain arrests and detentions in South Wales where young people had been arrested and nobody had been told. I heard from relatives, most law-abiding and respectable people, who had been round from police station to police
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station and eventually to the morgue to try to find where their loved ones were, because the police refused to say that they were in a particular police station.
That situation—enduring over 36 hours—is, in my submission to your Lordships, intolerable. The faith of those relatives and their friends in the fairness of the system of police investigation was shattered. Let us therefore put a limit of 12 hours at most on the right of the police in any circumstances to deny that very simple and, we would suggest, almost always harmless right: the fact that the arrest should be made known to a relative. Grouped with this amendment is the linked Amendment No. 116A. which would impose the same time limit on the power of the police to withhold access to a solicitor. I am not going to speak to that because we have had a full debate on it. The question of how long someone should be held incommunicado raises different points. I beg to move this amendment.
Lord Monson: My Lords, I should like to support this amendment. The noble Lord, Lord Gifford, mentioned the right of someone to know where you are. Even more important, I would say, is the right of a person's family to know that he or she is not dead or seriously injured as the result of a traffic accident, for example, or of having dropped down in the street with a heart attack. That is what husbands and/or wives fear most if their spouse, for whatever reason, fails to appear.
Lord Hutchinson of Lullington: My Lords, I should like to support this amendment. I think that in our debates on these matters we lose sight very quickly of the balance which we are trying to keep. Over and over again an isolated case is given as an example to justify a power. All of us can always think of an isolated case where you feel that you ought to have overwhelming powers. The fact of the matter is that to keep somebody in custody for 36 hours without letting anybody know gives a tremendous power to those in the police station to obtain a confession or an admission from that person which may turn out, as I have already said earlier in the day, to lead inevitably to an appalling miscarriage of justice.
People make confessions and admissions purely because they are in a police station isolated, totally isolated, locked up in a cell, knowing the situation outside, that their wife is going to do this or the child needs collecting or they promised to do this or that and the wife could be sitting at home expecting a child to come home or whatever it is. In those circumstances, they will say anything to get out of that police station or to get their families informed of where they are. I would support this amendment as a practical lawyer—as is also the noble Lord, Lord Gifford. One repeatedly sees in front of one that people make confessions and admissions in police stations because they are incarcerated incommunicado for a very considerable time. It is a great danger. I believe that 36 hours is too long for someone to disappear. Twelve hours is surely enough.
The Lord Chancellor: My Lords, I really do not think that the noble Lord, Lord Gifford, added much to the wisdom of nations by talking about a police state when we are obviously talking about a question of degree; or by talking about the police telling lies with

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such gusto when that is not the case in the main. And I rather doubt whether the noble Lord, Lord Hutchinson of Lullington, was really helping us much by referring to this question of confessions, with which we shall be dealing at much greater length in a later clause.
Clauses 55 and 57, with which this amendment is concerned, provide for a delay of 36 hours in exercising the rights to have someone informed of the arrest and to obtain legal advice. These amendments would reduce the time to 12 hours. The figure of 36 hours was adopted in order to link up with the first independent review of detention under Clause 42, and there are good reasons for keeping the three provisions—that is, under Clauses 42, 55, and 57—in line.
Special considerations apply in the case of persons detained under the terrorism provisions, to whom the 36-hour review will not apply, so the figure in their case is different. But in the case of persons detained in right of arrest for a serious arrestable offence under the general criminal law, the latest point at which they must he brought to court if still uncharged is also the natural limit for incommunicado detention. It was for this reason that the previous Bill, as originally introduced, provided for notification of arrest to be delayed up to 48 hours. since that would then have been the point at which the first inter partes review of detention took place.
Indeed, some of the reasons which caused us to consider that the time of the first inter partes review should be no later than 36 hours, rather than 24 hours, are also reasons for maintaining 36 hours as the limit on the delay of a notification of arrest. It was necessary for us, as those responsible for the safety of other human beings as well as those under suspicion, to take account of the exceptional cases involving very serious crime where premature disclosure of the fact that a person had been arrested could have the most harmful consequences.
To some extent, of course, any figure one chooses is an arbitrary figure. but on occasion it is clear that 12 hours is insufficient. It has been accepted by the Criminal Bar Association. which is composed of at least as practical lawyers, if your Lordships will allow me to say so, as Lord Hutchinson of Lullington, that on occasions even 36 hours might be too early. The case they had in mind concerned a kidnapping in which it was essential for the victim's safety that the fact that one member of the kidnapping gang had been arrested was not disclosed. I wonder whose side we are really on in these cases. The risks would obviously be much greater if the period were reduced to 12 hours. It is right to regard this issue in terms of risk. We are already taking a risk by placing a 36-hour limit where none now exists.
Of course, this does not mean that a delay will occur in all or, indeed, a great many cases. The clause, as your Lordships will know, is based on Section 62 of the Criminal Law Act 1977. I must remind the House that that Act was not passed under a Conservative Government. It not only allows an indefinite delay but also allows it on criteria which are considerably vaguer than in Clause 55, referring simply to
"the interest of the investigation or prevention of crime or the apprehension of offenders".
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I have quoted those last words from the Act.
Even so, the great majority of requests are dealt with quickly. In 1982 there were approximately 1,600,000 arrests, and only 1,353 requests under Section 62 of the 1977 Act were delayed for over four hours. A minute number, 114, were delayed for over 24 hours. Thus, only in a minute proportion of cases—0.007 per cent., in fact—was there delay for more than 24 hours in complying with a request under Section 62 of that Act passed by a Labour Administration. There is therefore every reason for confidence that, through a higher definition of the cases in which delay is permitted, the clause is likely to reduce the minute proportion still further.
At the same time, as I have said, it is necessary to provide for the exceptional case in which 12 hours is not enough. I have one or two cases to refer to. and I shall revert to them. But what would have happened in those cases if this amendment had been in force? The arguments in the case of Clause 57 are similar because, as has already been explained, the power to restrict a person's access to a solicitor is simply a special case of the need to keep him incommunicado. There may well be cases where the police are happy to grant access to a solicitor but not to someone named by the suspect.
The point in his detention after which it no longer becomes possible to keep him incommunicado is 36 hours or the hearing of an application for a warrant of further detention, if that is earlier. So, logically, it is also the point at which the right should become absolute. Your Lordships have already agreed that the latest time for the first inter partes review of detention should be 36 hours; but I must stress certain points. First, the exercise of the right of access to legal advice cannot be delayed once the reasons which have justified it no longer exist. Secondly, the exercise of the right cannot be interfered with once a person has been charged with an offence or detained on the authority of a warrant for further detention. Thirdly, access to legal advice must be allowed before any court hearing, which obviously includes the hearing of an application for a warrant of further detention. That is made clear in paragraph 3 of Annex C to the draft detention code. I am confident that the power to delay access to a solicitor for more than 12 hours will be exercised only in the most compelling cases of serious crime.
I promised to give your Lordships one or two examples. They all date, I think, from 1983, which is comparatively recent. Let us take one from July of that year, which was a conspiracy to rob. The reason for delay was that another person had to be arrested in connection with the same offence. It was feared that the friend might inform another person. Another example concerned a drugs case—another very serious offence. I am afraid this is from April 1982—I said earlier that they all related to 1983: that is not true. The reason for the delay was that inquiries were continuing into drug offences and it was believed that notification of the named person would prevent the arrest of others involved.
Then there was another case of deception with drug offences. The person arrested was a known dealer in drugs. His premises were searched under authority of a drugs warrant. During the search £39,000 was found in a box in the garden, with jewellery. It was believed

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that a third person involved with others was jointly responsible for other burglaries of a similar nature. It was desirable to recover as much of the stolen property as possible and to search his address. If he was allowed contact with others it might have hindered the investigation.
Another case concerning drugs was thought likely to interfere with the course of justice, as other people were to be interviewed about the large amount of controlled drugs involved. There was another case which concerned detention under the Prevention of Terrorism Act. It was thought that it might impede inquiries in Northern Ireland and lead to threats to persons supplying information.
It is all very well to talk in emotive terms, as the noble Lord, Lord Hutchinson of Lullington, does almost on every occasion and as the noble Lord, Lord Gifford, does invariably: but really we must decide whose side we are on in these matters. Human lives are involved—human lives of the utmost importance—and innocent lives, and other people are under suspicion. Clearly these are matters of degree and they-are matters of judgment, but the advice we have received is that 36 hours is the right period and 12 hours is the wrong period. I am not going to plead guilty to starting a police state or to encouraging police to tell lies, simply because I am on the side of those who are investigating drugs offences and kidnapping.
Lord Gifford: My Lords, it is not a justified riposte, with the greatest respect to the noble and learned Lord, to suggest that those who put forward some decent basic minimum periods during which people could be held incommunicado are somehow on the side of criminals because that is what they propose. We are on the side of decent standards and this Bill, in many respects, is eroding them.
In answer to the various examples which we were given, the answer is surely that you cannot keep arrests secret. The news gets out. If the police have to arrest a number of people they have to co-ordinate their actions because the word gets around. I would be very surpised indeed if there were any case more often than once or twice a year in which an arrest had been kept secret from accomplices for more than 12 hours and someone's life was in danger.
I shall not press this amendment for one reason only, and that is because in the linked debate which we have had about the right of access to a solicitor a lot of wise things have been said, and the noble Lord, Lord Elton, will be considering what, if anything, can be done to meet some of the objections that were raised on that matter. Quite clearly, if there is some change in the Bill on the question of the right of access to a solicitor, it may affect what should be done about the right of someone to have a friend informed. For that reason only, and not because anything the noble and learned Lord said has convinced me, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.20 p.m.
The Lord Chancellormoved Amendment No. 111:
Page 53, line 34, leave out from beginning to ("and") in line 39 and insert—
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("(a) subsection (2)(a) above shall have effect as if for the words "for a serious arrestable offence" there were substituted the words "under the terrorism provisions";
(b) subsection (3) above shall have effect as if for the words from "within" onwards there were substituted the words, "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State".").
The noble and learned Lord said: My Lords, with this amendment I should like to speak to Amendment No. 117.
Amendment No. 117: Page 56, line 3, leave out (""48" were substituted for "36"") and insert ("for the words from "within" onwards there were substituted the words "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State" ").
I believe that these are drafting amendments. These amendments to Clauses 55 and 57 both clarify the application of the provisions of the clauses to a person detained under the terrorism provisions. The former amendment also ensures that the three paragraphs constituting subsection (12) of Clause 55 appear in the correct order. The intended effect of Clause 55(12) and 57(13) is that, whereas the rights conferred by those two clauses become absolute after 36 hours in the case of a person detained under the general criminal law, a further 12 hours' delay is possible in the case of persons detained in connection with terrorism, as recommended by the noble Earl, Lord Jellicoe.
However, as drafted these two subsections do not quite work as they should, because they refer the reader back to subsections (3) and (4) respectively, both of which embody the concept of the relevant time as defined in Clause 40(2). Going back to that subsection we find that the relevant time starts, generally speaking, on arrival at the police station. But persons may be detained under the terrorism provisions at a place other than a police station; for instance, on board a vessel. Indeed, Clause 29(11)(c) expressly disapplies the requirement to take an arrested person to a police station in such a case. The effect of these amendments is therefore to ensure that the maximum period of delay in such cases is indeed 48 hours from the time that detention begins. The amendments—I am instructed and believe—do no more than clarify the position. My Lords, I beg to move.
On Question, amendment agreed to.
Clause 56 [Additional rights of children and young persons who are arrested]:
The Lord Chancellormoved Amendment No. 112:
Page 54. line 23, at end insert—
("and
(b) in the case of a child or young person in the care of a voluntary organisation in which parental rights and duties with respect to him are vested by virtue of a resolution under section 64(1) of the Child Care Act 1980, a reference to that organisation.").
The noble and learned Lord said: My Lords, this amendment provides for the case where a child is in the care not of a local authority but of a voluntary organisation, and it requires the police to inform the organisation of the arrest instead of the local authority. I think I can call it either drafting or technical, but it could probably be debated. My Lords. I beg to move.
On Question, amendment agreed to.

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Clause 57 [Access to legal advice]:
Lord Mishconmoved Amendment No. 112A:
Page 54, line 36, leave out from ("person") to ("or") in line 37 and insert ("who is in police detention or who, for the purpose of assisting with an investigation, attends voluntarily at a police station or any other place where a constable is present and is cautioned").
The noble Lord said: My Lords, if I may, I propose to speak to Amendment No. 112B as well as to No. 112A.
Amendment No. 112B: Page 54, line 38, at end insert ("and nothing in this Act shall be taken as detracting from the right of any person not held in police detention to consult a solicitor privately at any stage of an investigation").
May I make it clear that these amendments have their origin in the Law Society, which is extremely worried about a problem of which I wish to tell your Lordships. The Bill as at present drawn provides that legal advice is to be restricted to those in police detention at a police station. That poses and creates a very real problem. The Government clearly envisaged that the right to legal advice should be available to others who are at a police station but who are not in police detention, because successive draft codes of practice for the detention, treatment and questioning of suspects have stated that:
"Any person at a police station may consult and communicate privately with a solicitor of his own choice".
I believe that the latest draft I have seen provides for this in paragraph 6(1). The code goes on to make it clear specifically that those who are attending voluntarily under Clause 28 of the Bill but who have been cautioned may obtain legal advice. This is therefore one of those cases in which the code of practice provides a wider entitlement than that contained in the Bill.
What is clear under the Bill is that duty solicitor committees established by the Law Society will have the power to make arrangements for the provision of advice and assistance. They are hoping to have a 24-hour duty solicitor scheme which will operate at police stations continually. All that that will really mean is that they will have the power to make arrangements for the provision of advice and assistance only to those persons who are actually held in police detention.
This is likely to have very serious implications. It means that the duty solicitor scheme will not, as I have said, extend to those who attend at police stations voluntarily to help the police with their inquiries, even when—and the amendments are limited to this situation—they have been cautioned. If, therefore, the suspect wishes to have legal advice at that early stage, it will not be available from the duty solicitor and may not be available from other solicitors.
One doubts whether this is what the Government intended. One further doubts whether, if that is the Government's intention, it will be approved by your Lordships' House. If such advice is to be available to volunteers from duty solicitors, as the code of practice says it is, it is necessary for the duty solicitor committees to have the power to make arrangements in relation to all persons who attend at a police station voluntarily in order to help the police with their inquiries and who are cautioned as well as those who are in police detention.
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The consequences of not making this change are, first, that any solicitor attending a person voluntarily at a police station and who has been cautioned will, presumably, not get paid and, secondly, that the volunteer at a police station will not be able to avail himself or herself of the welcome new arrangements to be made by the Government for free legal advice and assistance while at the police station. One recollects that during the Committee stage in another place—I am quoting from the Official Report of the Standing Committee of 28th February 1984 at col. 1434—the Minister of State said:
"The Committee will agree that there is no doubt about our concern to make the right of access to legal advice effective".
I respectfully suggest that that right will not be effective unless, as now, legal advice is as available to those voluntarily at the police station and who are cautioned as to those who are in police detention. It is not right that the code of practice implies that it will be. I beg to move.
The Lord Chancellor: My Lords, I hope I am not going to make a false point to begin with. However, I am about to repeat what I have been told: that the noble Lord. Lord Mishcon, has spoken to Amendment No. 120A. It so happens that Amendment No. 120A is an amendment which I was going to agree to in principle. But if, as he ought to have been, the noble Lord was speaking to Amendment No. 112A, my present inclination is to resist the amendment. I hope I am not at cross-purposes. It is very easy to get at cross-purposes and I apologise if either of us is.
Amendments Nos. 112A and 112B deal with the situation of those who are not under arrest but have been cautioned, as I understand it. They assert that such persons are entitled to consult a solicitor privately at any time. Of course, they are perfectly entitled to consult a solicitor at any time under the existing law. On the face of them, these two amendments might cast doubt on the right to legal advice of those who have neither been arrested nor cautioned; hence the second part of Amendment No. 112B, which declares that nothing in the Bill detracts from this right.
My Lords, similar amendments were rejected during Committee stage. My noble friend pointed out at that stage that ample provision was made in the code of practice for this situation. I need only refer to paragraph 11.4, which requires that a person who has been cautioned but is not under arrest must be informed that he is free to leave and must be reminded that he may obtain legal advice if he wishes. The provision is also found in paragraph 3.8.
My noble friends and I have made the point on several occasions that the code will be an enforceable document, as strictly adhered to by the police as the Bill from which it springs. It is, of course, built into the Bill by Clause 66, particularly by subsection (7) of that clause. I do not want to weary your Lordships by repeating the arguments made on that point. Suffice it to say that if the noble Lord is concerned that this provision may be overlooked or ignored because it is in the code, I can reassure him that it will not be so overlooked.
I do not think that these two amendments to which we are speaking, Nos. 112A and 112B, raise any issue

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of principle or substance. The Bill confers an express right of access to legal advice on persons in police custody only because police interference with that right would otherwise be possible. Where the person is not under arrest there is no need to confer a statutory right of access to legal advice on him, any more than there is to confer a statutory right of access to a plumber or electrician. If the person is under caution the police must, in accordance with the code of practice, in addition tell him that he can obtain legal advice if he wishes, and that is sufficient. The Bill does not permit any interference with his freedom to consult a solicitor if he wishes, and he can leave at any time if he wishes to go and see a solicitor away from the police station. I believe that is plain enough, and I see no reason to add to the Bill unnecessarily by purporting to confer rights on citizens who are free to go about their business as they wish.
I will tell the noble Lord in advance that when he comes to Amendment No. 120A, which is not altogether dissimilar and which may have deceived those who were advising him in the matter, he will have a very sympathetic response along the lines which I have indicated.
Lord Mishcon: My Lords, I am so gratified by the promise of what is going to happen to Amendment No. 120A that I feel the less I say the better. I therefore propose to read with great pleasure, as always, what has been said by the noble and learned Lord, and wait with eager anticipation to move Amendment No. 120A. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112B not moved.]
The Lord Chancellormoved Amendment Nos. 113 and 114:
Page 55, line 2, leave out ("subject to the following provisions of this section")
line 3, at end insert ("except to the extent that delay is permitted by this section")
The noble and learned Lord said: My Lords, with you Lordships' permission, perhaps I may deal with Amendments Nos. 113 and 114 at the same time. I am instructed and advised that these are drafting amendments, and no more. I beg to move them en bloc.
On Question, amendments agreed to.
[Amendment No. 115 has been withdrawn from the Marshalled List.]
Lord Hutchinson of Lullingtonhad given notice of his intention to move Amendment No. 115A:
[Printed earlier: col. 427.]
The noble Lord said: My Lords, I do not propose to move this amendment, but I shall return to this matter at a later stage unless I have good reason for not doing so—and that will depend, of course, on whether something satisfactory emerges in relation to Amendment No. 78A.
[Amendment No. 115A not moved.]
[Amendments Nos. 116 and 116A not moved.]
Lord Eltonmoved Amendment No. 117:
[Printed earlier: col. 500.]
The noble Lord said: My Lords, my noble and learned friend has already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
10.36 p.m.
Baroness Ewart-Biggsmoved Amendment No. 118:
[Printed earlier: col. 428.]
The noble Baroness said: My Lords. I should like to move amendment No. 118 with the utmost speed. The purpose of this proposed new clause is to ensure the presence of an adult during the questioning of a juvenile—either an adult as designated under Clauses 54 and 55 of this Bill or an adult chosen by the young person himself. In either case, it will be an independent adult who is not a police officer.
It has been generally accepted that children and young people have a special status with regard to questioning. Indeed, the code of practice states:
"All these special groups may be particularly open to suggestion, and it is important to obtain corroboration of any facts admitted wherever possible".
The reason we want the extra protection that would be provided by the amendment is that there is considerable proof emerging from discussions with young people, parents, social workers and solicitors, and from cases referred to the Children's Legal Centre, that pressure is put on young people if they are detained in police custody for long periods in the absence of an independent adult.
I think it should not be underestimated how even those young people who may appear very aggressive when questioned by police on the streets can feel totally intimidated once inside a police station. They may then be inclined to say anything to the police in the belief—utterly mistaken, of course—that this will get them out of the police station quicker and home sooner.
It has been said, and it must be true, that juveniles are more susceptible to persuasion through fear or favour, and consequently are more likely than adults to make a false admission of guilt. Indeed, it is a sobering thought that this actually happened in the celebrated Confait case, where three young people were led into admitting, in confession statements, a murder that they could not have committed. It seems to us essential to prevent any risk of such a thing ever happening again.
There can be no doubt that the presence of an independent adult during the whole period of questioning of a juvenile would prevent that juvenile blurting out just anything in order to get away. At the same time, it would prevent an over-zealous policeman from pressurising him in order to gain information. Moreover, such a procedure would go some way towards helping to conserve that all-important relationship between young people and the police forces. It is for these reasons that we consider it right to bring within this Bill the all-important safeguard provided by the presence of an independent adult during the questioning of a juvenile. That is what our amendment is designed to do. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I hope that the noble and learned Lord will not dismiss this as an emotional amendment. He described a number of the statements which my noble friend Lord Hutchinson made as being emotional, but when one is dealing with certain aspects of this Bill, if one is without emotion it tends to be without merit.
I do not accuse the noble and learned Lord of being without emotion. We all remember with the greatest pleasure how, as a loyal Churchman, he turned on the Bishops and rent them in the most gloriously emotional way. I approve of that and I should like to feel that the noble and learned Lord approves of my noble friend Lord Hutchinson when he expresses some emotion.
The Lord Chancellor: My Lords, the last thing I do is describe amendments as emotional. Sometimes one discusses seriously the question whether or not speeches are emotional and whether the emotion is in place or out of place. But I shall not pursue that matter.
I do not think that there is any real difference of principle between the noble Baroness and her noble friend Lord Donaldson in this matter. The effect of the new clause would be to place an absolute prohibition on the questioning of a juvenile in police custody in the absence of a responsible adult. It also makes a supplementary provision concerning who that adult should be. A new clause to the same effect, identical in terms, was rejected in the Commons Committee and it was not moved in the Lords Committee on 9th July. Obviously the purpose is to prevent delay in notifying the parents of his arrest and the noble Baroness and the noble Lord have added other reasons.
We follow the Royal Commission's view and it is probably right to remind the House of what that view is. I quote paragraph 4.103 of its report that it is,
"essential that a juvenile should have an adult person present other than the police when he is interviewed and it is highly desirable that the adult should be someone in whom the juvenile has confidence, his parent or guardian, or someone else he knows as a social worker or school teacher.".
However, the corn mission acknowledged—and we agree with it—that there must be exceptional circumstances in which any delay in interviewing a juvenile while his parents or other adult are awaited could have very serious consequences. I quote again from the report, paragraph 4.104:
"Juveniles, unfortunately, can be involved in serious offences … and we think it would be contrary to the public interest to prevent the police questioning a juvenile where, for example, life is at risk.".
We also accepted the commission's recommendation in the next paragraph of its report that the rules governing questioning should make clearer the circumstances in which the police may properly question a juvenile in the absence of an adult. Paragraphs 13.1 to 13.3 in Annex C of the draft detention code give effect to this recommendation and indeed go beyond it. Whereas the present position under the administrative directions is simply that juveniles should so far as practicable be interviewed only in the presence of an adult, those paragraphs very considerably tighten up this requirement. Under Annex C a juvenile may be questioned in the absence of a responsible adult if a superintendent judges that delay in beginning the interview will involve an
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immediate risk of harm to persons or serious damage to property; and questioning must cease once that immediate risk has been averted.
That seems to me to be a substantial new safeguard. It would however be quite wrong to place an absolute prohibition on questioning in the absence of an adult, for example, even where life was at risk. It is, unfortunately, the experience of the police that sometimes the parents of a juvenile in trouble are unwilling to come to the police station or simply cannot be found; and while there are obviously well-established channels of communication between the police and social services departments, difficulties can and do arise when an arrest takes place at night. It may be that they should not arise; but the fact is that sometimes the police have to wait a long time before they can get anyone to come to the police station to be present at an interview. The police cannot, for instance, be expected to stop casual passers-by in the street and ask them to come into the police station so that they can begin an urgent interview: that would be unrealistic.
I should like to emphasise however that the draft detention code will ensure that questioning in the absence of an adult will occur only when authorised by a senior officer in strictly defined circumstances; and to remind your Lordships that Clause 56 places a clear duty on the police to inform parents of the arrest of their children as soon as practicable. If there are cases where the police fail in this duty, the appropriate disciplinary procedures are available. It is not satisfactory to impede the investigation of serious crime, as this new clause would do, where the police are not at fault.
I suggest that the right view is that, with this explanation, the noble Baroness will realise that there is no serious question of principle between us, and that the Bill, as drafted, goes as far as it really ought to do.
Baroness Ewart-Biggs: My Lords, I should like to thank the noble and learned Lord for his answer. Even if we shared the same principle, we had quite a different idea about the necessity, for the reasons which I gave, to have an independent adult present when young people are being questioned. The argument that parents would not want to attend is a bad one, which I have heard before. If we create a law which allows parents not to wish to come to support their children, they will be more likely not to come forward to support their children.
I am disappointed that the noble and learned Lord has not been a little bit more positive and enthusiastic about this very important and useful amendment. However, perhaps I will withdraw it at this point and think again before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 119 not moved.]
Clause 58 [Legal aid for persons in detention]:
The Lord Chancellormoved Amendment No. 120:
Page 57, line 6, leave out ("by solicitors").
The noble and learned Lord said: My Lords, this removes a reference to solicitors from the new

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provisions inserted in the Legal Aid Act 1982. The reason is that Clause 58 provides for the establishment of duty solicitor schemes for police stations. New paragraph (aa) to be inserted into Section 1(1) of the Legal Aid Act 1982 makes it clear that legal advice and assistance may be provided not only by solicitors but also by representatives of solicitors. The two cases are dealt with in new sub-paragraphs (i) and (ii) respectively. This being so, it is not appropriate for the paragraph to imply that advice can come only from solicitors. The amendment removes this incorrect implication. I beg to move.
Lord Mishcon: My Lords, on behalf of a most generous profession. I am happy to agree with the amendment.
On Question, amendment agreed to.
10.49 p.m.
Lord Mishconmoved Amendment No. 120A:
Page 57. line 7, after ("detention") insert ("or who, for the purpose of assisting with an investigation attends voluntarily at a police station or any other place where a constable is present and is cautioned").
The noble Lord said: My Lords, I beg to move.
The Lord Chancellor: My Lords, the words written in capital letters in my brief say, "Agree in principle". I shall explain that. I would ask the noble Lord, on my undertaking to bring forward an amendment on Third Reading, to withdraw his amendment. I am told that it does not go wide enough. I am quite prepared to explain why. but if I undertake to bring forward an amendment in slightly wider form on Third Reading, I hope that he will withdraw this one.
Lord Mishcon: My Lords, with alacrity!
Amendment, by leave, withdrawn.
Clause 59 [Tape-recording of interviews]:
Lord Mishcon Lord Mishcon moved Amendment No. 121:
Page 57, line 40, after ("State") insert ("on or before the coming into operation of Part IV and V of this Act").
The noble Lord said: My Lords, in moving Amendment No. 121, I propose at the same time to speak, but in terms of which your Lordships will hear in one moment, to Amendments Nos. 122, 123, 126 and 128.
Amendment No. 122: Page 58, line 44, leave out ("at police stations").
Amendment No. 123: Page 58, line 7, leave out subsection (2).
Amendment No. 126: Clause 64, page 63, line 9, after ("questioning") insert ("tape-recording of interviews").
Amendment No. 128: Clause 66, page 63, line 14, leave Out ("Act") and insert ("Part").
This is a most important series of amendments, in which it is advocated—
Lord Morris: My Lords, I am sorry to disturb the noble Lord, Lord Mishcon, but I should like to make it absolutely clear at this stage that I have no intention of moving Amendments Nos. 123, 126, 128 or 129, but certainly Amendment No. 122; I think it might be of help to know that at this stage.
Lord Mishcon: My Lords, I am most grateful to the noble Lord. What I was going to say was that the series of amendments from our point of view deals with a most important point. It is that Parts 4 and 5 of the Bill, which, as your Lordships know, deal with detention and the questioning and treatment of persons by the police, should not be effective until after the tape-recording system is in vogue throughout the United Kingdom.
I am not going to move a series of amendments as important as that at ten to eleven with an attenuated House, because I believe that that is not worthy of your Lordships' House or of the importance of the subject. Therefore, if we cannot have anything more satisfactory than that at this stage, I suppose the best thing that I can do is to withdraw at this stage, having said that these are important amendments, having indicated the nature of them, and obviously these will be brought forward at Third Reading.
Amendment, by leave, withdrawn.
Lord Morrishad given notice of his intention to move Amendment No. 122:
[Printed above.]
The noble Lord said: My Lords, I listened with very great care to what the noble Lord, Lord Mishcon, has said. I would remind your Lordships that it is just the luck of the draw and the greatest misfortune that this vitally important issue came up at the Committee stage—would you believe?—at a quarter to three in the morning. It is most unfortunate that it comes up yet again at this very late hour. For the reasons which the noble Lord, Lord Mishcon, has stated, I think it would be most unfortunate if we were to handle it at this particular stage and at this particular time. I find this situation most unhappy but I would beseech my noble friend on the Front Bench that. when these points are considered at Third Reading, the Government should consider with very great care undertakings with regard to these points, which are of critical importance to the liberties of the common man.
[Amendment No. 122 not moved.]
[Amendment No. 123 not moved.]
Clause 61 [Intimate samples]:
10.55 p.m.
Lord Hutchinson of Lullingtonmoved Amendment No. 124:
Page 60, line 7. leave out subsection (10).
The noble Lord said: I regret to raise this matter at this late hour but it is a matter of importance. The amendment refers to Clause 61 and it refers to the subject of Clause 10 which was inserted into the Bill at the Committee stage by the noble Lord the Minister. It was reached at the equivalent time of 2 a.m. on 11th July. It was really agreed to without discussion, save for one comment by my noble friend Lord Donaldson, who said that he was sure that if either of his lawyer friends had been present they would have said it was the thin end of the wedge for the removal of the right of silence—to which the noble Minister replied "There is no question here of speech". But I shall submit to your Lordships that he was entirely wrong about that.

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Clause 61 gives power to take from a person in police detention intimate samples. Intimate samples are defined in Clause 64 as being,
"a sample of blood, semen or any other tissue fluid, urine, saliva or pubic hair, or a swab taken from a person's body orifice".
Power is given to take those intimate samples from someone in a police station. In subsection (10) appear these words:
"Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause …

(a) the court, in determining—

(i) whether to commit that person for trial; or

(ii) whether there is a case to answer; and

(b) the court or jury, in determining whether that person is guilty of the offence charged,

may draw such inferences from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence against the person".
So the result is that if an informant has said, "If you got to X's house, he is the man who is committing these rapes in the locality" and that is good information, the police would be entitled to take the man into detention in a police station and interrogate him in relation to the rapes. On entering the police station, he is cautioned that he need not say anything if he does not wish to. If he says, "I do not wish to say anything at all" the police will say to him, "We wish to take an intimate sample from you, an intimate sample of semen". Or they may say, in some alleged homosexual offence, "We want to take a swab from you". The man says nothing because he is entitled to say nothing. The police will then say, "Right, that we take as a refusal to give that sample. That is sufficient evidence for us to go to the magistrates' court. You will be in the dock and we shall say that you have refused to give a sample. And the magistrates may commit you for trial on that refusal". At the Crown court, it will be possible to say, "This man has refused to give a sample, and there is evidence there on which you can convict him".
Equally, if the evidence against the person is that of an accomplice, say, the person who gave the information, you call the accomplice to give evidence against the defendant. That requires, if it is a child, corroboration because the evidence is so suspect. "Oh," say the police, "this man refused to give a sample. That is corroboration of the accomplice's evidence that he was, in fact, the rapist". That is a term of art corroboration. It will be required before the man can be convicted. The trouble about the situation is that it completely reverses the onus of proof and goes against the person's right to silence. It makes a farce of it.
These words have been lifted word for word from the eleventh report of the Criminal Law Revision Committee when they were used in that report to take away the right of silence. These are the precise words that were used. The words have been lifted. That report, as already noted, was given a very rough ride in this House. As a result, it was buried and forgotten so far as that matter was concerned. Here are these words being resuscitated. I hope I am not being emotional in any shape or form; I am merely stating the facts. In my submission, to allow these words to remain in this Bill in this form is indeed the thin end of the wedge, because they will appear again and they will be used again.
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In my submission, it is really quite outrageous to enable a court to have positive evidence of guilt because someone takes advantage of his rights and says, "I will say nothing. You prove the case against me". In those great words of the noble and learned Lord, Lord Devlin, in the Bodkin Adams case, this is a right which is the right of every Englishman—and long be the day before that right is taken away.
This provision gives to those in police stations an enormous power for abuse, because it will be only the word of the police officer, who later, when the statements are served, will say, "This defendant refused to give a sample". By that time it will be far too late to take a sample, if the defendant knows that he never refused. There is the situation. By an officer's simple say-so that a man refused to give a sample when he was in the police station there will be evidence to commit him, there will be evidence of corroboration, there will be evidence on which he could be convicted. I beg to move.
Lord Mishcon: My Lords, we on these Benches feel that we must be consistent. We said before, on an amendment that we regarded as very important—Amendment No. 121 and all that followed—that both the hour and the state of the House make it quite wrong to debate important issues. I know that it is nobody's fault, but we did in fact lose a great deal of time that nobody anticipated losing this afternoon when the various amendments, which I am sure the Alliance Party felt were most important, were being discussed. And then, of course, we lost some time on the Statement. I feel that I must be consistent and say that we do not intend to participate in a debate on this important subject at this hour and with this attenuated House.
Lord Wigoder: My Lords, I regret to have to say that I cannot agree with the view that the noble Lord, Lord Mishcon, has taken, because at the moment one has no idea what will happen if the substance of this debate is reserved until the next stage, at Third Reading. Indeed, I think it might be open to objection if on Third Reading there were debates in detail on amendments which had been put down at Report stage—
A Noble Lord: Not if they are withdrawn.
Lord Wigoder:—and then they were simply glossed over on the ground that it happened to be eleven o'clock at night. I find this a difficult proposition. I think the matter should be explored a little further this evening, because it is a matter of very great importance. I want, if I may, to support my noble friend Lord Hutchinson of Lullington in drawing attention to what I would regard as a most sweeping extension of the criminal law, which is tucked away, rather innocuously, in subsection (10) of Clause 61. I say that it is a sweeping extension of the criminal law because I believe I am right in saying—the noble and learned Lord on the Woolsack will correct me at once if I am wrong—that if any judge today directed a jury in those terms as set out in subsection (10) and there were a conviction, it would at once be quashed in the Court of Criminal Appeal, without any argument; because under the law as it stands today there can be

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no possible suggestion that if somebody is silent or if somebody declines to give a sample, or whatever it may be, that evidence can be treated in any way at all as corroboration. This is a very remarkable extension of the criminal law.
I support everything that my noble friend has said about the matter. I add only this, if I may. The effect of subsection (10) is to say that the refusal—in other words, if a person says, "No, you may not have a sample"—is capable of amounting to corroboration. Corroboration ought to mean some independent evidence which tends to implicate the accused in the commission of the offence. That is the classical definition—if I recall it correctly—of what is meant by corroboration.
It follows from that that what the subsection is saying in terms is that a refusal by a man, for whatever reason—good, bad or indifferent—to give a sample, is in itself evidence of guilt. That must be so if the subsection means what it says. It follows that it may be that the only evidence in front of the magistrate is, "I arrested this defendant. I have no evidence against him, your Honour"—which is the way in which the police normally refer to the magistrate—"except that I asked him for a sample and he said, 'No' and told me to take a running jump. On that evidence your Honour, I ask for a committal for trial". If this subsection were in force the magistrate would be entitled to commit for trial on no other evidence at all except the fact that the man had said to the police officer. "No. I will not give you a sample".
This is a very, very dangerous extension. I am sure it was not realised just how far it went. As my noble friend has said. it was something which was included in the eleventh report of the Committee, many years ago. My noble friend and I, before we ever came to your Lordships' House, sat together and listened to the debate on that occasion on that report. There was almost unanimous condemnation of this proposal and of many of the other proposals in that Committee's report. I regard this as a very serious matter and I hope that the Government will think again about the proposal contained in this subsection.
11.7 p.m.
Lord Elton: My Lords, first I should like to say that I agree with the noble Lord, Lord Wigoder, that the custom of this House is to agree its business, and if the early business takes long, then the later business falls late. That certainly imposes a strain upon your Lordships but it is a strain to which we have been accustomed—
Lord Mishcon: My Lords, I must ask the noble Lord the Minister to give way. If I had merely said—and my noble friends had agreed with me—that we should not pursue the matter in view of the lateness of the hour, I should not have been content with my submission at all. It is not a question of the lateness of the hour—we are prepared to stay until goodness knows what time! It is a question of the state of the House on an important matter of this kind and on an important Bill. It is absolutely wrong for an attenuated House like this to be deciding matters of such great import on a Bill which is so important.
Lord Elton: My Lords, with respect, it seems to me that the one follows from the other. I therefore think that it is right that I should deploy the arguments of Her Majesty's Government in answer to what the Liberal and the Social Democratic parties have put forward as an amendment which they both support.
Let me start by perhaps superflously reminding your Lordships that in all trials for sexual offences the judge is obliged to warn the jury that it is unsafe to convict solely on the evidence of the complainant. We are—are we not?—dealing with sexual offences and with the taking of intimate body samples which are most often linked to sexual offences. Therefore we are looking at cases where corroborative material is of critical importance. If the complainant's evidence is not corroborated, a charge of rape, for example, will probably fail. In these circumstances, it seems to us—as it seemed to the Committee in another place—important that it should be open to the jury, if they think fit, to attach virtually the same weight to the refusal as they would to evidence of an intimate sample which directly implicated the defendant.
I remind the noble Lord, Lord Hutchinson of Lullington, that the clause only refers to:
"a person in police detention,"
which Clause 115(2) specifies, as having followed arrest. Thus the suspect must have been arrested. When the case comes to trial, there must therefore be some evidence not just a generalised denunciation, which the refusal of a sample can be taken or not taken to corroborate. It is entirely open to the jury and the court as much as the police to decide whether it shall corroborate or not. There must be something for them to corroborate. When I thought I heard the noble Lord, Lord Wigoder, say that it would be possible for a court to convict on the sole evidence of a refusal to provide an intimate sample, then in that matter he must, because of the structure of the Bill, be a little mistaken.
Lord Wigoder: My Lords, if the noble Lord the Minister will forgive me, surely he is wrong in saying that there must be some evidence. What he means is that there should be some evidence. There is a world of difference between the two words.
Lord Elton: My Lords, I think I am right, and I think it would be for the court to decide whether or not the evidence was valid. But a person cannot be brought to court for trial on mere suspicion. There must be evidence to support that suspicion. Corroboration cannot exist in vacuo; it must corroborate something. Therefore, there must be evidence besides this corroborative evidence, if that is how it is to be treated before the court.
I understand the concern which noble Lords moving the amendment have shown for the "right to silence," but I do not accept that this provision in any way impinges upon that right. I do not wish to go at length over ground that we covered earlier, but I think that I ought to outline the present position and the considerations which led us to propose that refusal to provide an intimate sample should be capable of amounting to corroboration of the evidence against the defendant.

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At present there is no way of compelling a suspect to provide an intimate sample. He must consent before it can be taken. Consent can be given informally. Refusal to provide an intimate sample may prevent the bringing of any proceedings, for lack of corroborative evidence. But if the case can be brought, refusal may be referred to as part of the prosecution evidence. If the defendant exercises his right not to give evidence at the trial, that is all that can be said. Even if he does give evidence and is cross-examined on why he refused, the prosecution have to recognise that he is entitled to refuse. The Bill continues to require consent, but alters the present position by providing that such consent must be in writing. This we believe to be right in principle and in accordance with one of the main objectives of the Bill, which is to move towards carefully recorded investigations, and more formal opportunity for the accused person to exercise his rights. But the requirement for written consent could well serve to encourage the guilty to refuse it, secure in the knowledge that, even if they are eventually brought to trial, they will be at no disadvantage for having refused to co-operate. This means that there is a greater need to address the question whether it is right that it should always be in the interests of a guilty suspect to frustrate an investigation by refusing a sample, and if it is not, how this problem is to be solved.
When this was discussed in Committe in another place, there was general and wide support for the suggestion by the honourable Member for Montgomery that refusal to give a sample (without good cause for the refusal) should be capable of corroborating the prosection case, and that is what subsection (10) provides. This means that it would be for the jury to determine the weight to attach to a refusal, which is surely the best way of providing for the wide variety of motives which might be behind a refusal to provide a intimate sample. The person asked for an intimate sample might simply be drunk and belligerent, or he might simply be afraid of the process. If this were explained at any subsequent trial, the jury might attach little significance to the refusal. On the other hand, where it was thought that the suspect refused because he had something to hide, the jury would be allowed to take the refusal into account as evidence of the offence charged. It is important to bear in mind that, as I have said it is often in relation to offences of the greatest gravity—of which rape or a sexual assault on a child are obvious examples—that the evidence obtained from an intimate sample is most likely to be relevant.
However, it has been argued that the provision of an intimate sample is too closely akin to the making of a statement for it to be proper for any pressure to be applied to the suspect to achieve his co-operation with the police. But there are significant differences between the provision of an intimate sample and of making a statement, even a self-incriminatory statement. Provision of an intimate sample is, I suggest, much more akin to the searching of premises or provision of a non-intimate sample, both of which are seen as such vital tools for the police that, subject to certain safeguards and procedures, they can take place without the consent of the suspect. The common thread linking that provision of intimate and non-
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intimate samples, with the searching of pemises is that, if successful, they all lead directly to real evidence being obtained and further the investigation by narrowing the range of suspects. We should not forget that the provisions of a sample of blood or saliva produces forensic facts which may be vital to exclude innocent suspects, as well as strengthening evidence of guilt. These facts will often be important in relation to the most serious offences of violence or sexual assaults so we must keep clearly in our minds the interest of the murderer or rapist in refusing a sample, and decide if this is what we want from this Bill.
I recognise that the need to protect the privacy and dignity of the individual, given the nature of the process, puts the taking of intimate samples in a slightly different category from other procedures, and the provisions of this subsection recognise that also. A suspect still has the right to refuse the taking of an intimate sample. If he so decides no sample will be taken: there is no question at all of a sample being taken by force. That is clearly right and any other course would be unacceptable, but the right to refuse is the right not to be, as it were, physically forced to provide a sample. It should not in our view be an unlimited right to withhold material facts from an investigation without any consequences whatsoever. If subsection (10) were deleted, that is what the clause would provide. It would always then be in the guilty party's interest to refuse to provide a sample. I do not think anyone in this House or elsewhere would regard that as satisfactory: in many cases it could amount to enabling the guilty party to frustrate the investigation of a serious offence because there was no further evidence available to the police to test, compare or evaluate.
I think I have put enough of the Government's case to show your Lordships why we do not think that this is an amendment that we ought to put into the Bill.
Lord Donaldson of Kingsbridge: My Lords, before my noble friend replies, I should like to say this—
Lord Denham: My Lords, "Before the noble Lord sits down".
Lord Donaldson of Kingsbridge: No, my Lords, not, "Before the noble Lord sits down", before my noble friend replies—
Lord Denham: My Lords, "Before the noble Lord sits down".
Lord Donaldson of Kingsbridge: All right, my Lords, before the noble Lord sits down, we are in a difficulty here. We think this is very important. We did not ask to have it discussed at this hour. The Government have arranged it and I do not blame them. It is very difficult. Are we able, having had a discussion on this, to put it down on Third Reading to be discussed again? I am not clear what our rights are, and before my noble friend replies I want to be clear about this.
Lord Denham: My Lords, I think the position is that it is improper, or considered inappropriate in this House, to put down a matter at Third Reading on which the House has given its opinion in the Division

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Lobbies or, indeed, on Question. Whether it is right in fact to have a debate at this stage on Report stage and then repeat that full debate at Third Reading is a matter which I do not think the Companion mentions. That is a matter for the custom of the House.
Lord Morris: My Lords, if I remember rightly, the words that are used in the rulings in the Companion to Standing Orders—I am speaking from memory—is that any issue that has been fully debated critically and decided upon cannot be properly moved at Third Reading. Bearing in mind that this has not been fully debated, in my view, and certainly not decided upon, I would suggest that it should most properly be moved again at Third Reading.
Lord Denham: I think the "decided upon" is the relevant factor. If the House is not asked to give an expression of its opinion tonight, either on Question or in the Division Lobby, I think that the Companion would be comparatively silent on this point.
The Lord Chancellor: My Lords, I do not know whether I am allowed to say anything.
Noble Lords: With leave, my Lords.
The Lord Chancellor: My Lords, I do not think I require leave if I am to say anything at all. I do not want to intrude on this private discussion, but if the noble Lord withdraws his amendment he probably is at liberty to raise it on Third Reading. If he divides on it and is beaten, I think he is not. I speak with great humility in front of my own colleagues, but I think that that is probably the position.
Lord Hutchinson of Lullington: My Lords, I am grateful for the advice from the noble and learned Lord, who, as we all know, always speaks with the greatest humility. All I would say in reply are two or three things. First of all, the noble Lord the Minister referred to this subsection on the basis of it affording corroboration, and said that, of course, there must be some evidence before you can have corroboration. But the essence of this subsection is in paragraph (b), where the court or jury, in determining whether the person is guilty of the offence charged, can take into account his refusal. So it goes much further than corroboration. I say that because I am sure the noble Lord the Minister will bear that in mind in due course.
Having regard to the advice that I have received, not only on my right but on my left and behind me, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 64 [Part V-supplementary]:
Lord Eltonmoved Amendment No. 125:
Page 62, line 35, at end insert—
""parent or guardian" means—

(a) in the case of a child or young person in the case of a local authority, that authority; and

(b) in the case of a child or young person in the care of a voluntary organisation in which parental rights and duties with respect to him are vested by virtue of a resolution under section 64(1) of the Child Care Act 1980, that organisation;").

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The noble Lord said: My Lords, certain provisions of the Bill require the giving of consent before the police may act. Clause 64 defines the expression "appropriate consent" in terms of parents and guardians. The definition fails to make clear that, where a juvenile is in care, parental rights are exercisable by the local care authority or organisation. This amendment remedies this omission. I beg to move.
On Question, amendment agreed to.
Clause 65 [Codes of practice]:
[Amendment No. 126 not moved.]
Lord Eltonmoved Amendment No. 127:
Page 63, line 12, leave out ("in searches of") and insert ("on").
The noble Lord said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 66 [Codes of practice-supplementary]:
[Amendments Nos. 128 and 129 not moved.]
Clause 67 [Evidence from documentary records]:
Lord Eltonmoved Amendment No. 130:
Page 64, line 12, leave out ("contained").
The noble Lord said: My Lords, I welcome the arrival of the final drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Denham: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Cornwall County Council Bill [H.L.]
Returned from the Commons earlier this day, agreed to with amendments: the amendments considered and agreed to.
House adjourned at twenty-three minutes past eleven o'clock.