Police and Criminal Evidence Bill

HL Deb 31 July 1984 vol 455 cc718-74

Consideration of amendments on Report resumed.

The Lord Chancellor

My Lords, Amendments Nos. 139A, 139AA and 139B fall. I think the next effective amendment is Amendment No. 140 by the Lord Elwyn-Jones.

Lord Elwyn-Jones

My Lords, I believe that Amendments Nos. 139A, 139AA and 139B formally should not be moved.

The Lord Chancellor

My Lords, they cannot be moved because they are amendments to an amendment that was not moved.

Lord Elwyn-Jones

I am most grateful, my Lords.

Clause 78 [Advance notice of expert evidence in Crown Court]:

Lord Elwyn-Jones

moved Amendment No. 140: Page 70, line 41, leave out ("Crown Court Rules") and insert ("Secretary of State"). The noble and learned Lord said: My Lords, Amendment No. 140 relates to a matter of much controversy when it came before us in Committee. It was a provision in Clause 78 that provision should be made by the Crown Court Rules Committee requiring any party to proceedings before the court to disclose to the other party or parties any expert evidence which he proposes to adduce in the proceedings. Then there are further provisions to the like effect.

That was a proposition which was strongly contested and debated. However, it was debated and now we come to the machinery by which provision should be made to give effect to what was proposed. It was a matter which caused a great deal of concern; it was thought to tend towards the erosion of the right to silence. It was feared that it was impossible to formulate an expert opinion without revealing the facts on which it was based. There was emphasis on the fact that a criminal case differed fundamentally from a civil case where these procedures have become familiar. It runs contrary to the proposition that the defence is not obliged to reveal its case beforehand.

All those issues are still live issues, and what is proposed in this amendment is that instead of—I was going to say "mere"—Crown Court rules making this important provision for advance notice of expert evidence in a Crown Court to be given, that change, that power should be exercised by the Secretary of State by statutory instrument. The proceedings in regard to the Crown Court rules are that they lack the publicity, the public discussions and indeed the consultations sometimes, although, as I well know, the Lord Chancellor does his best, through the committee, to take such soundings as are available.

However, we attach such importance to this that there should be an opportunity for Parliament to consider the proposal when a statutory instrument is brought forward by the Secretary of State, so that the issues that I have briefly indicated which arise from this change can be ventilated. My Lords, I beg to move.

The Lord Chancellor

The boy stood on the burning deck! My Lords, there are three quite separate issues here. The first question is who should make the rules, and the noble and learned Lord's proposition is that the Home Secretary should write amendments to rules. The Bill as drafted, and as I support it, is that the Crown Court Rules Committee should make the rules. I speak with due, but I hope not undue modesty. I am the chairman of that committee and I carry a certain weight in it, although I may be outvoted from time to time, as I am occasionally in your Lordships' House. The Crown Court Rules Committee is, other than its chairman, a very good committee. It is a formidable team which includes at least four of the following: the Lord Chief Justice, two other judges of the Supreme Court, two circuit judges, the Registrar of Criminal Appeals, a justice of the peace, two practising barristers and two practising solicitors. You could hardly find a better range of experience and expertise for this committee than that which this committee contains.

As it is, the noble Lord has proposed that in place of this high powered committee, the Secretary of State, a solitary figure, supported only by his own Civil Service, should take the place of this very widely based committee. I support the view, which is that of the Government, that the Crown Court Rules Committee is clearly the superior body for this purpose.

The second question of the three is what should be disclosed in the interchange between the parties provided for by the rules. This is a good deal more than a matter of mere words, I think. At present the clause provides that any party to proceedings before the court may be required to disclose any expert evidence which he proposes to adduce; while the noble Lords would prefer the requirement to be to disclose whether the party intends to adduce any expert evidence and the nature of it. With the very greatest respect, this has nothing whatever to do with the right of silence, about which a great deal is talked, but on which little is said to the point. The right of silence is the right which a man has when he is either charged with an offence by a policeman or arraigned for an offence in court, to remain totally silent. I speak in the absence of the noble Lord, Lord Hutchinson of Lullington, who made an eloquent plea for it at an earlier stage in these proceedings. The virtue of the right of silence is that zero equals zero. If you remain silent it is no evidence either way of anything.

Its second virtue is that it is entirely compatible with the rules of a free society. These rules do not include the right of silence—Ah! Hamlet, Prince of Denmark—the rules of a free society do not require, as a matter of fact, that you write into them certain fundamental rights, such as that you can make a friendly demo in front of Buckingham Palace if you please. The rules of a free society, as was said by Mr. Justice Frog in Misleading Cases—only he said the opposite—is that in a free society you can do anything which is not forbidden by a rule of law or of a statute.

The right to silence is simply part of that general licence which we all have, to do exactly what we like, or to refrain from doing exactly what we like, unless we are enjoined to do it by a positive rule of law. I shall repeat myself slightly because I think the noble Lord, Lord Hutchinson of Lullington, may not have been here when I said this.

The virtue about the right to silence is that nought equals nought. That is to say, assuming, as I do, that we are trying to create a rational system of jurisprudence, if a man says nothing, its probative value is exactly nil. However often one says nothing—and this is the corollary of it—it is still nil because nought plus nought still equals nought, however often one does the sum. That is the right of silence.

This clause has nothing whatever to do with the right of silence. It is to do with expert evidence, and that is a very different matter. The clause at present provides that, any party to proceedings before the Court", may be required, to disclose … any expert evidence which he proposes to adduce". The effect of the amendments in the name of the noble Lords is that they would prefer the requirement to disclose whether the party, intends to adduce any expert evidence … and the nature of it". I must challenge the value of that. If the disclosure is to go into any detail at all, it would involve what is known in other contexts as a paradise for lawyers. That is to say, it would involve work for professional lawyers for the party disclosing in re-writing the expert evidence, so that the disclosure contained the nature of the evidence rather than the evidence itself; or, as the clause presently provides, they would have to disclose the evidence itself. Those are the alternatives.

On the other hand, if the disclosure was merely on the general level, the provision would lose almost the entirety of its purpose, since the other parties to proceedings would not have been able to know in advance the precise points on which there was disagreement. The purpose of the clause as it stands is that they should know exactly what there is between the parties in a field that has to be decided by experts. If they were not able to know in advance the precise points on which there was disagreement, they would be in no better position than now to prepare each his own case. So adjournments that would be unnecessary under the Bill as it is at present would still have to take place.

It is precisely in the detail of scientific, technical or other expert evidence that the need for study arises. A palatable summary, denaturised with all the skill of the legal profession—both its parts—and with all its jargon and statistics removed, would not help us at all when the precise evidence was finally brought forward. And there is of course scope for further delays and argumentation if opposing parties disagree about the meaning of the phrase "the nature of expert evidence. The present version of the clause seems to me to achieve the desired result of lessening the number of unnecessary delays during trails in the most effective and appropriate way. With this explanation I hope that noble Lords who moved these amendments will feel able to agree with the points I have made.

Lord Elwyn-Jones

My Lords, I greatly regret that seductive though that invitation was, I cannot take other than the view expressed very strongly by the Bar, I think by the Law Society, and by the Criminal Justice Committee of Justice itself of some 16 solicitors and barristers practising mainly in the criminal courts, who regard this proposal in Clause 78 with apprehension and indeed alarm.

There is a world of difference between civil proceedings and criminal proceedings. Even in civil cases only the substance of the expert's report has to be disclosed. Even in civil cases, in personal injury actions the court will not usually order disclosure where the expert evidence may contain an expression of opinion as to the manner in which the personal injuries were sustained or as to the genuineness of the symptoms of which complaint is made. So there is limitation even in civil cases in those respects.

The view taken by us and by those who have considered this matter as practising lawyers is that the method and extent of the disclosure proposed is too important to be left to the rules and to the rules committee, over which I have had the honour of presiding on a number of occasions. It is desirable that in this important invasion of the field of criminal justice Parliament should have a part. That is why Amendments Nos. 140 to 144, and Amendment No. 143 in particular, provide that these important changes in criminal justice should be subject to a statutory instrument; should be subject to annulment in pursuance of a resolution of either House of Parliament. We are of the view that this matter is of such importance that the opinion of the House should be tested upon it. I beg to move.

Lord Campbell of Alloway

My Lords, the noble Lord, Lord Hutchinson, who I see in his place, must, with his great appreciation of the classics, be more than grateful to my noble and learned friend the Lord Chancellor for having reminded him of the fallacy of the sorites; that zero plus zero does not equal a digit, albeit in this context. As to the merits of this matter, at this hour of night may I say that I stray now and then into the criminal courts and I cannot support this amendment.

Lord Elwyn-Jones

My Lords, I have already ventured to move this amendment, and I do so once again.

Lord Campbell of Alloway

My Lords, I am so sorry.

8.47 p.m.

On questtion, Whether the said amendment (No. 140) shall be agreed to?

Their Lordships divided; Contents, 52; Not-Contents,70.

DIVISION NO. 3
CONTENTS
Airedale, L.	McNair, L.
Ardwick, L.	Meston, L.
Barnett, L.	Milner of Leeds, L.
Beaumont of Whitley, L.	Mishcon, L.
Bernstein, L.	Molloy, L.
Blease, L.	Nicol, B. [Teller.]
Boston of Faversham, L.	Oram, L.
Carmichael of Kelvingrove, L.	Phillips, B.
[Teller.]	Pitt of Hampstead, L.
Cledwyn of Penrhos, L.	Plant, L.
Dean of Beswick, L.	Raglan, L.
Donaldson of Kingsbridge, L.	Stedman, B.
Elwyn-Jones, L.	Stewart of Alvechurch, B.
Elystan-Morgan, L.	Stewart of Fulham, L.
Energlyn, L.	Stoddart of Swindon, L.
Falkender, B.	Stone, L.
Gifford, L.	Strauss, L.
Hooson, L.	Taylor of Gryfe, L.
Houghton of Sowerby, L.	Tordoff, L.
Hutchinson of Lullington, L.	Underhill, L.
John-Mackie, L.	Walston, L.
Kagan, L.	Whaddon, L.
Kilmarnock, L.	White, B.
Llewelyn-Davies of Hastoe, B.	Wigoder, L.
Lockwood, B.	Wilson of Rievaulx, L.
McIntosh of Haringey, L.	Winstanley, L.
Mackie of Benshie, L.

NOT-CONTENTS
Airey of Abingdon, B.	Hornsby-Smith, B.
Alport, L.	Inglewood, L.
Auckland, L.	Ironside, L.
Avon, E.	Kitchener, E.
Bauer, L.	Lane-Fox, B.
Beloff, L.	Lawrence, L.
Belstead, L.	Lindsey and Abingdon, E.
Boardman, L.	Long, V.
Brabazon of Tara, L.	Lucas of Chilworth, L.
Brougham and Vaux, L.	McFadzean, L.
Caithness, E.	Macleod of Borve, B.
Cameron of Lochbroom, L.	Margadale, L.
Campbell of Alloway, L.	Marshall of Leeds, L.
Campbell of Croy, L.	Massereene and Ferrard, V.
Carnock, L.	Merrivale, L.
Cathcart, E.	Milverton, L.
Chelwood, L.	O'Neill of the Maine, L.
Cockfield, L.	Plummer of St. Marylebone,
Colwyn, L.	L.
Cork and Orrery, E.	polwarth, L.
De La Warr, E.	Rankeillour, L.
Denham, L. [Teller.]	Renton, L.
Digby, L.	Rochdale, V.
Elles, B.	St. Davids, V.
Elton, L.	Skelmersdale, L.
Fortescue, E.	Stanley of Alderley, L.
Gainford, L.	Stodart of Leaston, L.
Gardner of Parkes, B.	Suffield, L.
Gibson-Watt, L.	Swinton, E. [Teller.]
Glanusk, L.	Tranmire, L.
Glenarthur, L.	Trefgarne, L.
Hailsham of Saint	Trumpington, B.
Marylebone, L.	Vaux of Harrowden, L.
Harmar-Nicholls, L.	Whitelaw, V.
Hayter, L.	Wynford, L.
Henley, L.	Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.

8.56 p.m.

The Lord Chancellor

My Lords, I think I am right in saying, and the noble and learned Lord will confirm it, that Amendments Nos. 141, 142, 143 and 144 follow on Amendment No. 140.

Lord Elwyn-Jones

That is so, my Lords. They are not moved. They fall, like the walls of Jericho.

[Amendments Nos. 141 to 144 not moved.]

The Lord Chancellor

My Lords, the position is that Amendments Nos. 141, 142, 143 and 144 are not moved. We now come to Amendment No. 145.

Lord Hutchinson of Lullington

moved Amendment No. 145: After Clause 78, insert the following new Clause— ("Evidence of identification .—(1) Where at a trial on indictment the case against an accused person depends wholly or substantially on evidence of one or more visual identification of him, the judge shall, subject to subsection (2) below, either—

1. (a) warn the jury that it is not safe to convict on such evidence unless the identification is supported in some material particular by evidence, other than evidence of visual identification, implicating the accused person and indicate to the jury what evidence they may regard as so supporting the identification; or
2. (b) direct the jury to return a verdict of not guilty if he is unable to give such an indication.

(2) Where there is, in the opinion of the judge, credible evidence—

1. (a) that the accused person is familiar to the person identifying him; or
2. (b) that the person identifying the accused person had observed him for a prolonged period or on more than one occasion;

or where the accused person admits to having been present at the place where the offence was committed but denies that he committed it, the judge shall not give the warning referred to in subsection (1) above, but shall instead warn the jury of the special need for caution before convicting the accused person in reliance only on evidence of identification. (3) In this section 'visual identification' means identification by observation."). The noble Lord said: My Lords, I rise to move this amendment in relation to evidence of identification. Your Lordships will remember that the noble and learned Lord the Lord Chancellor at an earlier stage of our proceedings said that it stood out a mile that the two main causes of miscarriages of justice were false confessions and convictions that depended on identification evidence. The purpose of this amendment yet again, as in relation to some other amendments, is to try to prevent further miscarriages of justice taking place because of false identification.

I must declare an interest, as it were, because the purpose of the amendment is to bring the law into line with the recommendations of the Devlin Committee, which sat for two years on this question of identification. I happen to have had the honour of being a member of what ended up as being a four-member committee. The chairman was the noble and learned Lord, Lord Devlin, who, if I may say so, was undoubtedly the most experienced and the most outstanding judge, certainly in my time in the law, in relation to criminal law.

The Committee was set up because of two quite unacceptable miscarriages of justice where a number of witnesses in two totally different cases—the Virag case and the Docherty case—identified the two accused people as having been responsible for, in one case, an extremely serious offence involving firearms and, in the other, a much less serious offence. Both persons were found to be entirely innocent and both had served sentences of imprisonment.

The committee made a number of recommendations and the noble and learned Lord, Lord Devlin, took the view at the time, and has since publicly expressed the view, that it was essential that the main recommendations of the committee should find their way into statute. Having sat in the Court of Criminal Appeal, as it was then, and with great distinction on the Appellate Committee of your Lordships' House, he realised that it was very likely that if these recommendations were left entirely to a practice direction or a judgment of the Court of Appeal they would be watered down by the judges. I would urge upon your Lordships that that fear has certainly been realised.

I should like, if I may, to quote what the noble and learned Lord has said about the matter since the report: the problem peculiar to evidence of visual identification is that this evidence, because of its type and not because of its quality, has a latent defect that may not be detected by the usual tests. The highly reputable, absolutely sincere, perfectly coherent, and apparently convincing witness may, as experience has quite often shown, be mistaken". He further said: The major problem with this evidence is that, unlike verbal testimony which can be submitted to the scrutiny of cross-examination … and can be compared with other testimony and circumstantial evidence, the witness in an identification simply asserts that the accused is the person … there is no story to dissect, no inconsistencies to be reconciled". There is only one forensic weapon for testing the reliability of evidence and that is cross-examination. When that weapon is blunted, the advocate has no other weapon to use". He ends by saying that his committee: was the last of numerous bodies to shout the message into the judicial ear-trumpet".

That is the situation. What happened was that the recommendations, the essence of which comes in this amendment, were not given statutory form. But in a case which is called Turnbull the guidelines were laid down by the Court of Appeal, Criminal Division. They involved a number of excellent warnings which should be given by a judge in an identification case, but they ended up by saying that the important thing in identification cases was simply the quality of the evidence. That was essentially not what the committee found. One of the right reverend Prelates in this House, or indeed even the noble and learned Lord the Lord Chancellor, if I may say so with the greatest respect, is just as likely to give unreliable evidence on identification as the lowest person in the land. The quality of the evidence in an identification case cannot safely be the measuring rod for its importance.

What has happened is that even those guidelines have been watered down. In a series of cases which have been pointed out by Justice, which has had to deal with them, they have been watered down to as applying only to the ghastly risk of the fleeting encounter. For the sake of the record I quickly name those cases: Curry, Keeble, Oakwell and Weedon. They are all different cases. The whole point of the recommendations, and what has been found in identification matters, is that they go far outside the fleeting encounter. They go even to recognition cases and cases where there may be a number of witnesses and there may have been long observation. Still people get it wrong. They become convinced that they are right, and they say only, "That is the man", and there is no way of dealing with such a situation.

The only other thing that I should like to quote is from the last report of Justice, which has this to say about identification evidence: We still find cause for concern over the indifferent way in which cases involving evidence of identification are dealt with in the courts and by the police. In a number of cases submitted to us the Turnbull guidelines have been honoured by a general warning, but the judge has failed to draw the jury's attention to the specific differences of description that may point to the innocence of the accused. These cases suggest that Lord Devlin was fully justified in recommending that the more important safeguards should be made statutory". No other organisation is better positioned to make reliable observations on whether the rules are working. Justice finds that they are not. The Criminal Bar Association gives full support to this amendment. The Criminal Law Review has written up a number of cases, with editorial comment, pointing out how those guidelines do not work satisfactorily.

In moving this amendment, I seriously ask your Lordships to seize this opportunity to make it far less likely in the future that miscarriages of justice will take place. Miscarriages of justice have and are continuing to take place because of this great danger in relation to identification evidence. This is the opportunity to change that. I beg to move.

9.6 p.m.

Lord Campbell of Alloway

My Lords, I should like to support this amendment. It in no way affects the general structure of the Bill. The reasons given are wholly compelling. I say that as one who has some practical experience of the criminal courts. This codification of practice can only be conducive to a fair trial. Of course, if you have reached the stage that you are actually shouting into a judicial ear-trumpet, you have lost your case, but that is not the stage that this amendment has reached. I put this forward as a matter of plain justice and reason.

Lord Elystan-Morgan

My Lords, we on these Benches wholeheartedly support the principle which underlies this important amendment. From 1976 onwards Turnbull has served its purpose well as far as affording guidelines in relation to fleeting glimpse identification is concerned. But many grave miscarriages of justice arising from mistaken identification did not arise from fleeting glimpse identifications but from identifications over (in many cases) a very prolonged period. As the noble Lord, Lord Hutchinson of Lullington, has reminded us, the Devlin Committee recommended strongly that this be included in the statute.

The Philips Report, at paragraph 3.138, says this: There is a case in priciple for regulating by statute identification procedures as well as other aspects of pre-trial criminal procedure. We therefore recommend that when the Government is considering legislation in the field of pre-trial criminal procedure it should examine the possibility of making identification procedures subject to statutory control as well.

Lord Meston

My Lords, may I respectfully support this amendment, which clearly enhances this Bill? I speak not only as someone with some experience of criminal law, but also as someone who has had the unnerving experience of having to participate in an identification parade. Surely it is important that a Bill which attempts to codify and clarify the law relating to criminal evidence should tackle this sensitive and important area of identification evidence. It is notorious that a witness's belief as to what he or she has seen can become a certainty as to what he or she has seen. I suggest that it is particularly important that Parliament should provide some basic immutable rules which govern the courts in this difficult area.

The Lord Chancellor

My Lords, I do not complain at all that the noble Lord, Lord Hutchinson, should have raised this important question. I said earlier, he quoted from me and I say again, that questions of identification constitute one of the two or possibly three areas in which it can be demonstrated that there have been false convictions. I am surprised that, in addition to Virag and Docherty, he did not quote the famous and almost epic case of Beck. Almost the first thing I did when the then Conservative Government was beaten in 1974 and I ceased to be Lord Chancellor was to draw the attention of the noble and learned Lord, Lord Elwyn-Jones, to the case of Docherty.

Therefore, the noble Lord must not suppose for an instance that because of what I am about to say I do not take this aspect of the matter extremely seriously: I do. Identification is one of the areas in which juries have gone wrong in the direction of conviction, despite every precaution to the contrary. They have been told about the burden of proof; they have been told about the standard of proof; they have been warned about all sorts of things—to which I have not yet come because I have something to say about them—and they have undoubtedly come to the wrong conclusion. Of course, the most extraordinary case of all was the case of Beck. Beck established beyond any conceivable doubt that corroboration is no kind of protection. There was infinite corroboration in the case of Beck, not only identification by numerous persons but expert evidence in addition, and yet they came to the wrong conclusion. The truth would never have been discovered if it had not been that there was a very distinctive modus operandi and the sequence of frauds of which Beck was convicted went on just the same despite the fact that he was in prison for doing them. Eventually they discovered the real culprit, whose name I have now forgotten.

So I hope nobody will think that I am taking this subject lightly at all. Of course it is perfectly true that the Devlin Committee suggested statutory provisions. They recommended statutory provisions defining how the judge shall sum up in an identification case. I must say I rather regretted the picture in which the noble Lord, Lord Hutchinson, indulged, by talking about the judicial ear trumpet. Not all judges are like that, and if they are they ought not to sit any longer. This is the sort of colourful language one expects to use in addressing a jury, but not in the House of Lords in the presence of the Lord Chancellor, of an ex-Lord Chancellor and of several learned lawyers.

Lord Hutchinson of Lullington

My Lords, I was quoting the noble and learned Lord, Lord Devlin.

The Lord Chancellor

My Lords, he may have had his own reasons for doing so, but he does not any longer sit. At any rate, a more distinguished judge has never sat in the Bench in my lifetime. Although he was a very good judge of criminal law—a first-class judge of criminal law—he was a very fine commercial judge indeed, one of the finist judicial intellects with which I have ever come into contact. So do not think that anything that I say is at all disrespectful of him. That would be wrong.

Of course, time has followed the Devlin report. In view of the valuable judgment in Turnbull, to which the noble Lord referred, the then Home Secretary announced that the question of whether legislation was still needed in the light of the Devlin report to carry out its recommendations would be deferred until the effects of the Turnbull decision in practice could be assessed. In 1980, the judiciary, the legal profession, the chief officers of police and others with an interest in the subject, were all consulted. It would be wrong to tell your Lordships that there was unanimity, but there was general acceptance that the guidelines in Turnbull dealt satisfactorily with the problems perceived by the Devlin Committee and there seemed no particular need for legislation. An announcement to this effect was made in 1980.

If I may take up the time of the House for a moment. I would remind your Lordships of what I said earlier in response to an argument of my noble friend Lord Renton. There are three safeguards to which you look in this field of activity. There is the safeguard of either the common law if this Bill is not passed into law, or of this Act, if it is. There is the safeguard of the codes of practice. There is the safeguard of the guidelines. I ventured to say to my noble friend that I regarded the safeguards as cumulative, that is to say, the Act provides the basic protection. The discipline of the police is partly but not wholly the province of the judiciary on admissibility, but I explained exactly what I thought about that at the time. The rest is for the discipline of the police and the extent to which the codes of practice are built into the Bill by Clause 66.

In addition, there are guidelines. I accepted that guidelines are used in different senses by different people. I said that, in general, in my book of terminology, guidelines really are better things laid down by courts of superior jurisdiction for courts of first instance, than by statute, by rules of law, rigid or otherwise. At the expense of taking unnecessary time, although I do not think that it is unnecessary because this is an important question to which the House must address itself, I want to read the guidelines that were given by the Court of Appeal in Turnbull and which the reassessment of 1980 came to the conclusion rendered unnecessary the statutory amendment proposed by the Devlin Committee. I read it from the All England Law Reports, with apologies. Nonetheless, although it is longer, I think it is more illuminating and summarises the judgment better. This is what the headnote says in that case, and these are the guidelines summarised. Whenever the case of an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should instruct them as to the reason for that warning and should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of witnesses could all be mistaken". A number of witnesses could all be mistaken. That is what has happened in these cases where justice has gone wrong.

Provided that the warning is in clear terms, no particular words need be used. Furthermore, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. If in any case, whether being dealt with summarily or on indictment, the prosecution have reason to believe that there is a material discrepancy between the description of the accused given to the police by the witness when first seen and his actual appearance, they should supply the accused or his legal advisers with particulars of the description the police were first given". Again, I would ask the House to consider the particularity of this, and the suppleness and flexibility of it.

In all cases, if the accused asks to be given particulars of any description, the prosecution should supply them. Finally, the judge should remind the jury of any specific weaknesses which have appeared in the identification evidence. Where the quality of an identification is good, the jury can safely be left to assess the value of the identifying evidence even if there is no other evidence in support, provided always that an adequate warning has been given about the special need for caution. However, where in the opinion of the judge the quality of the identifying evidence is poor, he should withdraw the case from the jury and direct an acquittal unless there is other evidence which supports the correctness of the identification. That other evidence may be either corroboration in the legal sense or something which convinces the jury that the identification is not mistaken; any odd coincidence, if unexplained, may be supporting evidence. The judge should identify to the jury any evidence which he adjudges capable of supporting the evidence of identification and he should tell the jury if there is any evidence or circumstances which cannot support an identification. The judge should tell the jury that the absence of the accused from the witness box cannot provide evidence of anything, although they may take into consideration the fact that identification evidence has not been contradicted by the accused. The judge should take care in directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons and it is only when the jury are satisfied that the sole reason for fabrication of an alibi was to deceive them, that fabrication can support identification evidence. The judge should remind the jury that proof that the accused has lied about his whereabouts at the material time does not prove that he was where the identifying witness says he was. A failure to follow these guidelines is likely to result in a conviction being quashed and will so result if, in the judgment of the Court of Appeal, on all the evidence, the verdict is either unsatisfactory or unsafe".

I simply, and almost in conclusion, ask the House to compare what it seems to me is this long—and I apologise for its length—sensitive, flexible and perceptive set of guidelines laid down by the Court of Appeal, Criminal Division, in the case of Turnbull, with the rigid and well-meant but, I think, nonetheless unsatisfactory lines of statutory prohibition and adjuration contained in the amendment. The comparison does not bear examination, in my submission. The right role of the guidelines is the sort of thing contained in the head-note which I have read to the House. The wrong use of statute is that which is suggested in the amendment.

I have done my best. It is a difficult and important subject. I do not complain in the least that it has been raised because this is one of the areas of the law in which mistakes, to our shame, have been made. I have only done my best to say what I think about it. But this is the view at which my colleagues have arrived. Although I find a good deal in common between the amendment and what I have read out, I find the Court of Appeal Criminal Division a rather more convincing guide than the rigidity which is inseparable from statute. That is the case and I have put it as fairly as I can.

Lord Hutchinson of Lullington

My Lords, I am most grateful for the views which have been put forward. Let me say with the greatest respect that the choice, of course, as has been pointed out, is between the flexible guidelines of the Court of Appeal and the more rigid rule which is set out here in the amendment. I would urge upon your Lordships that experience has shown, as the noble and learned Lord, Lord Devlin, foresaw, that a flexible rule which is put forward in the Court of Appeal does not in fact guarantee that miscarriages of justice do not take place, because the flexibility of the guidelines has meant that all over the country in Crown Courts and in magistrates' courts these guidelines themselves have been watered down and later decisions of the Court of Appeal, which I have already set out, have watered them down.

What the committee quite simply said was that the only thing which really can control this situation is to have a simple rule that it is not safe to convict on simple identification. Unless there is some extra evidence to support the identification, there must be a rule that it is not safe to convict. A flexible rule will not fill the bill because then judges will say, "In this case it is the Archbishop of Canterbury", or "In that case there is a five minute observation as opposed to a one minute observation", and so on. In all these cases mistakes still can, and will, be made. Therefore, I would urge upon the House that it is, in fact, a rule which is much more important than the flexible Court of Appeal guidelines and that the time has come to see that that rule is put in statutory form. In those circumstances. I think that I must divide the House on the amendment.

9.28 p.m.

On Question, Whether the said Amendment (No. 145) shall be agreed to?

Their Lordships divided: Contents, 53: Not-Contents, 70.

DIVISION NO.4
CONTENTS
Airedale, L.	Carmichael of Kelvingrove, L.
Beaumont of Whitley, L.	Cledwyn of Penrhos, L.
Bernstein, L.	David, B. [Teller.]

Blease, L.	Dean of Beswick, L.
Boston of Faversham, L.	Donaldson of Kingsbridge, L.
Elwyn-Jones, L.	Nicol, B.
Elystan-Morgan, L.	Phillips, B.
Ewart-Biggs, B.	Pitt of Hampstead, L.
Falkender, B.	Plant, L.
Galpern, L.	Ponsonby of Shulbrede, L.
Gifford, L.	Raglan, L.
Graham of Edmonton, L.	Stedman, B. [Teller.]
Hooson, L.	Stewart of Alvechurch, B.
Hutchinson of Lullington, L.	Stewart of Fulham, L.
Jeger, B.	Stoddart of Swindon, L.
John-Mackie, L.	Stone, L.
Kagan, L.	Strauss, L.
Kilmarnock, L.	Taylor of Gryfe, L.
Llewelyn-Davies of Hastoe, B.	Tordoff, L.
Lloyd of Kilgerran, L.	Underhill, L.
Lockwood, B.	Walston, L.
McIntosh of Haringey, L.	Whaddon, L.
Mackie of Benshie, L.	White, B.
McNair, L.	Wigoder, L.
Meston, L.	Wilson of Rievaulx, L.
Milner of Leeds, L.	Winstanley, L.
Mishcon, L.

NOT-CONTENTS
Abinger, L.	Hood, V.
Airey of Abingdon, B.	Hornsby-Smith, B.
Alport, L.	Inglewood, L.
Auckland, L.	Kitchener, E.
Avon, E.	Lawrence, L.
Bauer, L.	Lindsey and Abingdon, E.
Belstead, L.	Long, V.
Brabazon of Tara, L.	Lucas of Chilworth, L.
Brougham and Vaux, L.	McFadzean, L.
Caithness, E.	Macleod of Borve, B.
Cameron of Lochbroom, L.	Margadale, L.
Campbell of Croy, L.	Marshall of Leeds, L.
Carnock, L.	Massereene and Ferrard, V.
Cathcart, E.	Merrivale, L.
Chelwood, L.	Milverton, L.
Cockfield, L.	Mottistone, L.
Colwyn, L.	Newall, L.
Cork and Orrery, E.	O'Neill of the Maine, L.
De La Warr, E.	Plummer of St. Marylebone,
Denham, L. [Teller.]	L.
Digby, L.	Polwarth, L.
Eden of Winton, L.	Rankeillour, L.
Elles, B.	Reigate, L.
Elton, B.	Renton, L.
Fortescue, E.	Rochdale, V.
Gardner of Parkes, B.	Skelmersdale, L.
Gibson-Watt, L.	Stanley of Alderley, L.
Gisborough, L.	Stodart of Leaston, L.
Glanusk, L.	Suffield, L.
Glenarthur, L.	Swinton, E. [Teller.]
Gray of Contin, L.	Trefgarne, L.
Hailsham of Saint	Trumpington, B.
Marylebone, L.	Vaux of Harrowden, L.
Harmar-Nicholls, L.	Whitelaw, V.
Hayter, L.	Wynford, L.
Henley, L.	Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 79 [Part VIII—Interpretation]:

9.36 p.m.

Lord Hooson

had given notice of his intention to move Amendment No. 146: Page 71, line 35, leave out subsection (3) and insert— ("(3) Every criminal court shall have a power in its discretion to exclude evidence obtained by unfair, oppressive or unlawful means.").

The noble Lord said: My Lords, this amendment is an alternative to Amendment No. 139. As the noble and learned Lord the Lord Chancellor has not moved his amendment, I do not think that this should be moved at this stage.

[Amendment No. 146 not moved.]

Clause 80 [Establishment of the Police Complaints Authority]:

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

moved Amendment No. 146A: Page 72, line 6, leave out ("(2) The Police Complaints Authority") and insert ("and"). The noble Lord said: My Lords, with your Lordships' permission, I shall speak also to Amendment No. 146B when moving No. 146A.

Amendment No. 146B: Page 72, line 7, leave out from ("Authority")") to end of line 10.

These amendments delete the description of the Police Complaints Authority's functions currently in Clause 80(2). By virtue of this part of the Bill we are setting up a very powerful and valuable organisation. With time the Police Complaints Authority will develop an unrivalled knowledge and experience of the complaints and discipline system of the 43 police forces in England and Wales, but this part of the Bill also contains built-in limitations.

The effect of subsection (2) as at present drafted is that the authority may have no functions other than those conferred by the Bill, or by regulations made under it, and within the limits which it prescribes. The Government have reached the conclusion that the potential reach of the authority should not be limited in advance in this way. The intention behind these amendments is to enable new functions in the area of police complaints and discipline to be given to the authority by either primary or secondary legislation if and when experience shows this to be appropriate.

The Government have already formed the provisional view that one specific further function ought to be given to the authority in this way, and I think I ought to mention it to your Lordships. The disciplinary system established by the Police Act 1964 and the regulations made under it provide that the disciplinary authority for police officers of assistant chief constable rank and above is their police authority. It is in the Government's view right that police authorities should retain this responsibility, and indeed the Bill will make considerable improvements and refinements to the system of investigating complaints against senior police officers.

However, there is one among the police authorities' disciplinary powers which if carelessly or maliciously exercised can cause considerable damage not only to the individual affected but also throughout the force to which he belongs and which he may command. I refer to the power under the senior officers' discipline regulations to suspend an officer of assistant chief constable rank or above if it appears that he may"have committed a disciplinary or criminal offence".

Obviously this is a vital power, but equally obviously it must be exercised with extreme caution and having regard to all its potential effects, including the effect on the morale of the force. It would be wrong to remove this power from the police authority, but in the Government's view it should not rest with the police authority alone. Accordingly what we propose is that any decision by a police authority to suspend a chief constable, deputy chief constable or assistant chief constable should be subject to ratification by the Police Complaints Authority and should not have effect unless the complaints authority gives its consent.

We believe that this situation will arise rarely, if at all. But our proposal would mean that in the exceptional circumstances where it does arise the intention to suspend the police officer from the most senior ranks would be subject to a review by an independent non-partisan organisation with nationwide responsibilities and with considerable experience of the complaints and disciplinary system throughout the country. That seems to me to be an entirely desirable effect, and I beg to move.

Lord Mishcon

My Lords, may I make it clear that we do not object to these amendments at all. The only reason that I have risen is that we have amendments which follow. I am thinking in particular of Amendment No. 147, which relates to line 9, whereas these amendments delete to the end of line 10. Our amendments have as their object giving the Police Complaints Authority further powers than they are given under the Bill—the very thing that the Minister thinks is most likely to happen. For the sake of clarification what I intend to do is not to move Amendment No. 147 when is is reached, but to agree to this amendment which deletes to line 10, and then to move Amendment No. 152, if I may. I thought that would make it clear to the Minister and to your Lordships, and it is my sole reason for rising.

On Question, amendment agreed to.

The Deputy Speaker (Lord Alport)

My Lords, before calling Amendment No. 146B I must advise your Lordships that if this amendment is agreed to, I shall not be able to call Amendment No.147.

Lord Elton

moved Amendment No. 146B:[Printed above.]

On Question, amendment agreed to.

[Amendment No. 147 not moved.]

Clause 82 [Investigation of complaints: standard procedure]:

[Amendments Nos. 148 to 150 not moved.]

Lord Hooson

had given notice of his intention to move Amendment No. 151: Page 74, line 5, at end insert— ("( ) Where—

1. (a) a report submitted under subsection (8) above relates to a complaint arising out of an investigation into the commission of an offence with which a person has been charged;
733
2. (b) at the time the report is submitted that person has not yet been tried on that charge, or has been convicted on it; and
3. (c) the report contains any material which may be relevant to the guilt or innocence of that person on that charge;

the chief officer shall supply a copy of such material to that person and to the solicitor acting for him or who acted for him on his defence to the charge."). The noble Lord said: My Lords, this matter was debated at some length in Committee, but in view of certain undertakings, or reassurances, which the noble Lord, Lord Elton, has given which set at rest most of the worries of my noble friends and I, in particular my noble friend Lord Hunt who was concerned with this amendment, in the light of day it will probably be found that all our fears were set at rest. We should like to reserve our position on that. Consequently I do not intend to move Amendment No. 151 or the amendment which goes with it, Amendment No. 162.

[Amendment No. 151 not moved.]

Lord Mishcon

moved Amendment No. 152: Page 74, line 6, leave out ("supervised") and insert ("conducted"). The noble Lord said: My Lords, with this amendment, and with your Lordships' permission, I propose to speak to Amendments Nos. 153 to 161 inclusive.

Amendment No. 153: Clause 83, page 74, line 35, leave out ("supervised") and insert ("conducted"). Amendment No. 154: Clause 86, page 75, line 29, leave out ("supervise") and insert ("conduct"). Amendment No. 155: Page 75, line 36, leave out ("supervise") and insert ("conduct"). Amendment No. 156: Page 76, line 7, leave out subsections (4) to (7). Amendment No. 157: Page 76, line 28, leave out from ("After") to ("the") in line 29 and insert ("conducting an investigation"). Amendment No. 158: Page 76, line 29, leave out ("an appropriate statement") and insert ("a report on the investigation"). Amendment No. 159: Page 76, line 32, leave out ("the appropriate statement") and insert ("a report on the investigation"). Amendment No. 160: Page 76, line 34, leave out subsections (10) and (11). Amendment No. 161: Page 76, line 37, leave out ("the appropriate statement") and insert ("a report on the investigation").

My Lords, again I am setting my self-imposed limit of two minutes, but because I do that I hope your Lordships will not make me suffer the penalty of your thinking that this is not a most important amendment. I find that the shorter the speech, possibly the more effective it is.

Noble Lords

Hear, hear!

Lord Mishcon

The whole purpose of this amendment is to follow a line of thinking which is common to lawyers, laymen, the police, judges and everyone when considering this Bill; namely, that there must be public confidence in the police and in their conduct. We who have supported the police, and who will continue to do so, in the proper exercise of their powers have always felt, as I know all your Lordships do, that there must be proper safeguards in regard to complaints made against the police where they are appropriate. They must be properly and independently judged.

The purpose of this amendment is to give the complaints authority set up under the Bill—which the noble Lord the Minister has already recognised may have to have certain further powers given to it—the power and the duty not just to supervise, which this Bill gives it the right and power to do, but also to conduct complaints.

The whole basis of this is the firm recommendation of the noble and learned Lord, Lord Scarman, when he reported on the Brixton disorders and carried out that very full investigation which earned the praise of all your Lordships when the report came before you and was debated. I read paragraph 7.21, on page 118: My own view is that if public confidence in [...]he complaints procedure is to be achieved any solution falling short of a system of independent investigation available for all complaints (other than the frivolous) which are not withdrawn,is unlikely to be successful. Any such system should include a 'conciliation process'. No one will think that it is independent if it is the police authority itself which looks into and conducts the investigation of the complaints, leaving only the authority set up under this Bill to supervise. I beg to move.

Lord Gifford

My Lords, I support this amendment. I do so briefly because of the hour, but it is enormously important. It was said by the Minister during the Committee stage that only the police are capable of conducting investigations into complaints against the police, and that somehow nobody else has the expertise or the facilities. I simply do not accept that. The Police Complaints Authority would have the task of conducting investigations, and would have available to it and would recruit experienced investigators, some of whom might have had experience in the police or the Customs and Excise or in other fields; but it would be independent. That is what the public, particularly those who have had experience of complaining about the police and of having their complaints, as they see it, dismissed groundlessly, without a sufficiently impartial investigation, are asking for.

Lord Elton

My Lords, I am not quite sure that I can keep up with the impressive brevity of noble Lords opposite and do full justice to what needs to be said against them. I shall say no more than I believe is necessary, and if I spend longer protesting that fact I shall eat into my ration of time.

The noble Lord, Lord Mishcon, has said quite rightly that the object of this Bill, and most particularly of this part of the Bill, is to establish and reinforce public confidence in the police, and that that can be done only if the police are supervised. The way to protect and gain public confidence in this respect must obviously be to see that any suspicion of abuse is effectively and impartially investigated. An investigation that is not both effective and impartial will not succeed.

The concern of the noble Lord with the present proposal in the Bill is, I believe, not that it will not be effective but that it will not be seen to be impartial. The difficulty in which we find ourselves results from the fact that there is in this country only one service that has the elaborate training and the great wealth of experience to investigate allegations which range from mere petty theft through corruption and assault up to the most serious and violent crimes of murder and rape. That service is the police service. If you go outside that service, even if you go to the Inland Revenue or any other investigative service, you will find that it has a far more narrow and circumscribed remit and much less experience, and is not used to the full breadth of the criminal law with which we are concerned.

The conundrum is this. The police are the watchdogs we have set over us to see that we do not break the law. They are in fact the only people equipped to act as watchdogs. Who, then, is to watch over them? Quis custodies ipsos custodes? Any complaints system must embody what is both effective and impartial, and it seems to me that the noble Lords have not successfully gained effectiveness because they have ruled out the police. The idea of a kind of super police force to police the police may have a neat theoretical air to it, but in practice it will suffer from a severe handicap. It would have to be a relatively small body, and it would have to be recruited largely from serving police officers. At present the promotion and career structure for serving police officers is an open structure across 43 forces for senior ranks. The career prospects of policemen are therefore various and bright; but if they are going to suggest that serving policemen can be seconded into and out of the complaints service they will have destroyed the argument of impartiality at a blow. Even if they are suggesting that there should be promotion out of the complaints service back into police forces, they are placing investigating officers in the position of examining the conduct of officers in forces in which they themselves will later be seeking preferment.

Neither of these roads seems to me to lead to impartiality, but any other road under their scheme would dry up the sources of ambitious, effective and experienced police officers to staff the service. Without them we might achieve a police service which is impartial, but we shall not achieve one that is effective. Therefore, in the long run it will be less successful than what is now proposed.

We have got round this difficulty by giving the investigation and effectiveness to the police and giving the impartiality and supervision to a statutory body which is independent of all police forces and cannot number any serving or past policemen in its ranks. That in a nutshell is our argument—and if I take four from eight I see I have used exactly the same amount as has been put in favour of this amendment. It seems to me very robust and it is aimed at achieving what noble Lords opposite want to achieve. There is no difference between us. We both want to see an effective and impartial investigative force. I believe that we provide that; I believe that what they propose will produce one which may be impartial but which will not be effective and therefore will be of no use.

Lord Mishcon

My Lords, with the greatest possible respect, and within one minute by way of my own target, do I answer the noble Lord the Minister. There is nothing that the public will accept—and I say this frankly and in no mistaken language, I hope—other than an investigation of their complaints by an independent authority. The noble Lord the Minister mistakes the whole nature of the average complaint against the police. It is that a rude word was uttered; it is that a policeman overdid what was the task he had to perform; it was that he was in some way breaking the code of conduct. These are matters that ordinary investigators can pursue: the sort of people who are employed by insurance companies and inquiry agents. There is no difficulty whatsoever in such people investigating these matters.

Lord Elton

My Lords, I wonder whether the noble Lord would forgive my interrupting him, by leave of your Lordships' House? Perhaps I might ask him this, because we are trying to truncate and I do not want to make another speech. Is he going to tell us what happens in the sprinkling of cases where there are very serious allegations which also have to be dealt with? Will there be other resources open to those people to investigate criminal charges, or the allegations of behaviour which is nearly criminal, which may be made against these officers?

Lord Mishcon

My Lords, the number of such cases is minimal and, if we are going to legislate on the basis of the real exceptions to a general rule, we shall never produce any positive legislation at all to deal with the Scarman recommendation, which was so strong. The noble and learned Lord, Lord Scarman, knows as much as anybody does about the nature of complaints against the police. He investigated these matters before he reported. His recommendation was simple and clear, and it is in accordance with the resolution I now put before the House and upon which I ask the House's opinion.

9.54 p.m.

On Question, Whether the said amendment (No. 152) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 72.

DIVISION NO. 5
CONTENTS
Airedale, L.	Llewelyn-Davies of Hastoe, B.
Attlee, E.	Lockwood, B.
Beaumont of Whitley, L.	Mackie of Benshie, L.
Bernstein, L.	Mishcon, L.
Blease, L.	Nicol, B.
Boston of Faversham, L.	Pitt of Hampstead, L.
Carmichael of Kelvingrove, L.	Plant, L.
Cledwyn of Penrhos, L.	Ponsonby of Shulbrede, L.
David, B.	[Teller.]
Dean of Beswick, L.	Raglan, L.
Donaldson of Kingsbridge, L.	Stewart of Alvechurch, B.
Elwyn-Jones, L.	Stewart of Fulham, L.
Elystan-Morgan, L.	Stoddart of Swindon, L.
Ewart-Biggs, B.	Stone, L.
Falkender, B.	Strauss, L.
Galpern, L.	Tordoff, L.
Gifford, L.	Underhill, L.
Graham of Edmonton, L.	Whaddon, L.
[Teller.]	White, B.
Houghton of Sowerby, L.	Wigoder, L.
Hutchinson of Lullington, L.	Willis, L.
Jeger, B.	Wilson of Rievaulx, L.
Kagan, L.	Winstanley, L.
Kilmarnock, L.

NOT-CONTENTS
Abinger, L.	Hives, L.
Airey of Abingdon, B.	Hood, V.
Alport, L.	Hornsby-Smith, B.
Auckland, L.	Inglewood, L.
Avon, E.	Kitchener, E.
Bauer, L.	Lindsey and Abingdon, E.
Belstead, L.	Long, V.
Blake, L.	Lucas of Chilworth, L.
Boardman, L.	McFadzean, L.
Brabazon of Tara, L.	Macleod of Borve, B.
Brougham and Vaux, L.	Margadale, L.
Caithness, E.	Marshall of Leeds, L.
Cameron of Lochbroom, L.	Merrivale, L.
Campbell of Alloway, L.	Milverton, L.
Campbell of Croy, L.	Monk Bretton, L.
Carnock, L.	Monson, L.
Cathcart, E.	Mottistone, L.
Cockfield, L.	Newall, L.
Colwyn, L.	Norwich, Bp.
Cork and Orrery, E.	Polwarth, L.
De La Warr, E.	Rankeillour, L.
Denham, [Teller.]	Renton, L.
Digby, L.	Rochdale, V.
Eden of Winton, L.	Sandford, L.
Elton, L.	Skelmersdale, L.
Ferrier, L.	Stanley of Alderley, L.
Fortescue, E.	Stodart of Leaston, L.
Gardner of Parkes, B.	Suffield, L.
Gibson-Watt, L.	Swinton, E. [Teller.]
Gisborough, L.	Trefgarne, L.
Glanusk, L.	Trumpington, B.
Glenarthur, L.	Vaux of Harrowden, L.
Gray of Contin, L.	Westbury, L.
Hailsham of Saint	Whitelaw, V.
Marylebone, L.	Wynford, L.
Harmar-Nicholls, L.	Yarborough, E.
Henley, L.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 83 [Investigation of complaints againt senior officers]:

Clause 86 [Supervision of investigation by Authority]:

10.2 p.m.

The Deputy Speaker

My Lords, I understand that the intention is not to move Amendments Nos. 153 to 161.

[Amendments Nos. 153 to 161 not moved.]

[Amendment No. 162 not moved.]

Lord Mishcon

had given notice of his intention to move Amendment No. 163: Page 77, leave out ("appropriate statement") and insert ("report by the Authority").

The noble Lord said: My Lords, in view of the discussion which took place on the other matter, and the vote, I do not intend to move this amendment.

[Amendment No. 163 not moved.]

Clause 87 [Steps to be taken after investigation—general]:

Lord Elton

moved Amendment No. 163A: Page 77, line 39, leave out ("determine") and insert ("consider"). The noble Lord said: My Lords, in moving Amendment No. 163A, I shall, with your Lordships' leave, speak also to Amendments Nos. 163B to 163G inclusive and to Amendments Nos. 165ZA to 165ZD inclusive. Amendment No. 163B: Page 78, line 1, after ("officer") insert—("(a)"). Amendment No. 163C: Page 78, line 2, leave out "(a)"). Amendment No. 163D: Page 78, line 5, before first ("that"(insert ("considers"). Amendment No. 163E: Page 78, line 15, leave out ("considers"). Amendment No. 163F: Page 78, line 16, before first ("that") insert ("determines"). Amendment No. 163G: Page 78, line I9, before first ("that") insert ("considers"). Amendment No. 165ZA: Clause 89, page 80, line 5, after ("Authority") insert—("(a)"). Amendment No. 165ZB: Page 80, line 6, leave out ("(a)"). Amendment No. 165ZC: Page 80, line 8, after ("so") insert ("to consider whether"). Amendment No. 165ZD: Page 80, line 10, leave out ("determine") and insert ("consider"). These are practical amendments. Clause 87 deals with the chief officer's consideration of a complaint investigation report. His first task is to decide when the report ought to be submitted to the Director of Public Prosecutions. The existing formula which first appears in paragraph (b)(ii) of Clause 87(3) requires the chief officer to determine first whether the investigation report indicates that a criminal offence might have been committed by one of his officers and, second, whether the offence indicated is such that the officer ought to be charged with it. If the chief officer's answer to both of these questions is, yes, he is required to send the report to the director. However, on consideration it seemed to us that, while it is proper for the chief officer to determine whether a criminal offence may have been committed, to require him to determine whether the offence is such that the officer should be charged is to usurp the proper function of the Director of Public Prosecutions. What we have in mind is that the chief officer should form a view on the matter rather than purport to reach a decision. This intention is much better met by the wording in the amendments. I beg to move.

The Deputy Speaker

My Lords, is it your Lordships' wish that I should put Amendments Nos. 163A to 163G en bloc?

On Question, Amendments Nos. 163A to 163G agreed to.

[Amendment No. 164 not moved.]

Clause 88 [Steps to be taken where accused has admitted charges]:

[Amendment No. 165 not moved.]

Lord Elton

moved Amendments Nos. 165ZA to Amendment No. 165ZD: [Printed above.]

The noble Lord said: My Lords, I beg to move Amendments Nos. 165ZA to 165ZD en bloc as consequential amendments.

On Question, amendments agreed to.

Clause 93 [Constabularies maintained by authorities other than police authorities]:

Lord Elton

moved Amendments Nos. 165ZE, 165ZE and 165ZG: Page 83, line 9, leave out subsection (1) and insert— ("(1) An agreement for the establishment in relation to any body of constables maintained by an authority other than a police authority of procedures corresponding to any of those established by or by virtue of this Part of this Act may, with the approval of the Secretary of State, be made between the Authority and the authority maintaining the body of constables."). line 16, leave out ("arrangements") and insert ("procedures"). line 17, leave out ("make such arrangements") and insert ("establish such procedures").

The noble Lord said: My Lords, in moving Amendments Nos. 165ZE, 165ZE and 165ZG, I shall, with your Lordships' permission, speak also to Amendments Nos. 165ZH to 165ZK inclusive. Amendment No. 165ZH: Page 83, line 18, at end insert— ("(2A) An agreement under this section may at any time be varied or terminated with the approval of the Secretary of State."). Amendment No. 165ZI: Page 83, line 28, leave out subsection (5) and insert— ("(5) Nothing in any other enactment shall prevent an authority who maintain a body of constables from carrying into effect procedures established by virtue of this section."). Amendment No. 165ZJ: Page 83, line 31, leave out from beginning to ("in") in line 32 and insert ("No such procedures shall have effect"). Amendment No. 165ZK: Clause 95, page 84, line 27, leave out from first ("any") to ("shall") in line 28 and insert ("of their functions under sections 81 to 94 above or regulations made by virtue of section 96 below").

These amendments discharge a commitment made by my right honourable friend in another place, and I ought, therefore, to explain it. It was pointed out there that, as the clause stands, non-Police Act forces such as the British Transport police and Ministry of Defence police would be able to enter into arrangements with the Police Complaints Authority only on matters which were directly related to the functions of the authority. There was therefore no provision for these forces to adopt the other new procedures established by Part IX of the Bill, for example in formal resolution.

My right honourable friend accepted this argument. Accordingly, the new subsection (1) of Clause 93 will enable agreements to be made between the Police Complaints Authority and non-Police Act forces to cover functions equivalent to any of those established in this part of the Bill. The power of my right honourable friend to establish by order such procedures when none are in force under subsection (2) is automatically extended also to cover all Part IX functions. The other amendments are consequential.

The amendment to Clause 95 ensures that the restrictions on the disclosure of information by the Police Complaints Authority will apply to information received as a consequence of such agreements also. These amendments achieve a valuable extension of the operation of the complaints system within police forces such as the British Transport Police. I beg to move.

On Question, amendments agreed to.

Lord Elton

moved Amendments Nos. 165ZH, 155ZI, 165ZJ and 165ZK: [Printed above.]

The noble Lord said: My Lords, if your Lordships will permit me, I shall move Amendments Nos. 165ZH to 165ZK inclusive en bloc as consequential on those just spoken to.

On Question, amendments agreed to.

Clause 96 [Regulations]:>

Lord Mishcon

moved Amendment No. 165A: Page 86, line 4, at end insert— (" (2A) Regulations made under subsection (2)(b) of this section may provide for the informal resolution of complaints by or with the assistance of a person (not being a police officer) appointed by the Secretary of State with the concurrence of the Chief Officer of Police and the Police Authority and any regulations made in pursuance of this subsection shall contain such incidental provisions for the remuneration and accommodation of and assistance for such person and such other consequential matters as appear to the Secretary of State to he requisite and appropriate. (2B) Regulations made in pursuance of subsection (2A) of this section may provide for the duty of a Chief Officer of Police:

1. (a) to receive a complaint; or
2. (b) to determine whether a complaint ought to be investigated formally or is suitable for informal resolution; or
3. (c) to cause to be informally resolved a complaint which he has determined is suitable for informal resolution;

to be carried out solely by him or by him jointly with or with the assistance of a person appointed by the Secretary of State as mentioned in subsection (2A) above or solely by such person provided that in the event of regulations making provisions for any one or more of such duties to be carried out solely by a person appointed as mentioned in subsection (2A) above the regulations shall contain such further consequential provisions as is necessary to require that person to keep the Chief Officer of Police fully informed of his actions.") The noble Lord said: My Lords, I set myself precisely the same limit in moving again an important amendment which I suppose is rather in the way of an alternative to the amendment upon which your Lordships have recently divided. That amendment was dealing, as your Lordships will remember, with the independence of the authority investigating complaints. For this amendment my noble friends and I are indebted to the Association of Metropolitan Authorities, and it is their considered view, as is set out in this amendment, that there should be local police ombudsmen who would deal mainly with minor offences and would endeavour to use the conciliation and mediation procedures wherever they could.

This, again, is based on the principle that I hope your Lordships will accept, and again as recommended by the noble and learned Lord, Lord Scarman; namely, that it should be seen by the public that their complaints are investigated, examined and reported on, not by the police —indeed, I believe the Police Federation take that view themselves—but by some independent authority. I beg to move.

Lord Elton

My Lords, this amendment would provide by regulations for the appointment of lay persons to be involved in the informal resolution of minor complaints. Clause 82 provides the basic criteria for a chief officer to decide whether or not informal resolution is the appropriate course in relation to any complaint he receives; and Clause 96(2)(b)> provides a regulation-making power for establishing necessary procedures.

We do not propose to make complex and restrictive regulations on this subject. Our intention, as our White Paper on complaints and discipline makes clear, is that the informal resolution of complaints should not be bound by fixed procedures. In practice it will be a matter for judgment and the circumstances of each case whether the chances of resolving a complaint are or are not likely to be affected by the involvement of a third party.

No regulations could cater properly for the many varieties of dispute which may arise between police and public. There will always have to be a large element of discretion in making such judgments. In our view the regulation-making provisions already contained in Clause 96 are sufficient for the purpose. These amendments deal with an independent role in the process of informal resolution. In fact, subsection (2B) would go further still, but as the noble Lord has not spoken to it at length, neither will I.

It seems to me that what the complainant must actually want is satisfaction at the way in which his complaint is dealt with. The decision as to whether or not informal resolution is an option must flow from a judgment on the seriousness of the complaint. It should not be allowed to precede or delay that judgment.

I fully accept that chief officers should be given considerable assistance and information about the setting up and maintaining of procedures for informal resolution, but the main source of this will be the guidance issued to them by the Home Secretary. This will be able to set out such matters in detail; and as your Lordships will know, this Bill will for the first time place the guidance on a statutory footing and require chief officers to have regard to it. Therefore I do not believe that what noble Lords opposite propose will either expedite the procedures we have in mind or make them more satisfactory to the people making use of them.

Lord Mishcon

My Lords, it is such a shame that the Government are resisting every single opportunity to do what the noble and learned Lord, Lord Scarman, recommended and which one would have thought was so obvious from the point of view of public relations with the police; that is to say, not just to set up a procedure of supervision, but to provide that laymen, or people certainly not in the police force, deal with complaints, even minor ones.

A great opportunity has been missed. I have had one Division and your Lordships have been kind enough to accept that and register your votes. It would seem useless to put your Lordships to that trouble again and in these circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 [Discipline regulations]:

Lord Elwyn-Jones

moved Amendment No. 166: Page 86, line 27, at end insert— ("(aa) for racially discriminatory behaviour to be made a specific disciplinary offence").

The noble and learned Lord said: My Lords, late though the hour is, I venture to say that this is an extremely important amendment. It arises from Clause 98 of the Bill, dealing with discipline regulations. It proposes that one of the regulations should be for racially discriminatory behaviour by the police to be made a specific disciplinary offence.

Racial discrimination is an evil in our society and indeed in any society, whoever perpetrates it. It is more so if policemen are the perpetrators. I believe that only a small minority of the police misbehave in this regard, but abuse of power, by even a small minority of police officers, can have a very damaging effect on relations, in particular between the police and the community.

One of the most trenchant passages in the report of the noble and learned Lord, Lord Scarman, on the Brixton disorders was at page 110, where he wrote: All the evidence I have received, both on the subject of racial disadvantage and more generally, suggests that racialism and discrimination against black people—often hidden, sometimes unconscious—remain a major source of social tension and conflict". He ends that paragraph by saying: There are already signs among some black youths, despairing of an end to white discrimination, of a disturbing trend towards a total rejection of white society and the development of black separatist philosophies. Pride in being black is one thing, but black racialism is no more acceptable than white". The passage ends: A vigorous rejection of discriminatory and racialist views is as important among black people as among white if social harmony is to be ensured". In my submission, and in the submission of those of us in Opposition, inclusion of this regulation among the discipline regulations of the police will benefit relationships between the police and the community around it. In particular, we believe it will inspire greater confidence on the part of the black and other minorities in this important task we are embarking upon in this Bill to provide a new statutory code on criminal evidence and police powers. The inclusion of this regulation among police regulations will, I submit, inspire confidence in what is being done, strengthen the position of the police in those communities where there are minorities and reinforce confidence in the police itself. I beg to move.

Lord Hooson

My Lords, from these Benches I would simply like to support the amendment. I raised this question on Second Reading and referred to the Scarman Report on Brixton. It seems to me to be very important that the fears of the black community in particular should be laid at rest.

A racially discriminatory offence by a police officer should normally be a matter for dismissal. This was suggested by the noble and learned Lord, Lord Scarman, in his report. Whether it is to be done by an amendment to the Bill or whether it is to be done by means of an inclusion in the code of practice so that a chief constable should regard it as an offence that warrants dismissal is a matter on which there could be argument. My view, which I share entirely with the noble and learned Lord who moved the amendment, is that in view of its importance it should be included in the Bill.

Lord Gifford

My Lords, some three weeks ago I had a happy experience which is instructive in relation to this amendment. I moved at the annual general meeting of the Bar that racial discrimination by barristers should be a specific disciplinary offence. That resolution was accepted by an overwhelming majority. The reason it was accepted was that, although a number of eminent members of the Bar present thought that it would be almost certain that racial discrimination would, in any case, be considered to be disreputable conduct, it was necessary and valuable to state it publicly. It was particularly necessary and valuable to do so because evidence had been brought forward to show that there was discrimination by barristers against black barristers seeking places at the Bar.

When we come to the police, the case is even stronger. The police have faced in report after report. both official and unofficial, the sustained allegation that there has been prevalent racism. They may say, and the noble Lord the Minister may say, that much racially discriminatory behaviour would in any case be the subject of disciplinary proceedings. But it is no less necessary and no less valuable to have it specifically stated in the disciplinary code that that should be so. It would do a great deal of good for race relations and relations between the police and the ethnic minorities.

10.21 p.m.

Lord Inglewood

My Lords, would it not be possible for some of us to think that discriminatory behaviour of that description is something that will be difficult to define? What we want is good supervision in our police service at sergeant and more senior levels. When men fall into wrong ways, it is up to those who supervise them to see that their general behaviour is improved. To say that the use of these or other words shall amount to an offence which will result in a man's being ejected straight from his force is wrong. To make this discriminatory behaviour something which becomes an offence is surely impossible in practice because it relies entirely on the supervision both at the early and at the more senior stages.

Lord Monson

My Lords, surely all forms of unfair discrimination, as well as all forms of rudeness, of which unfair discrimination is simply one manifestation, are to be deplored not only for the obvious reason that they are bad in themselves but also because it makes the task of other policemen—the majority—that much more difficult. Having said that, I see no reason why one form of discrimination should be singled out for disciplinary action to the exclusion of all others, and for that reason I fear that I cannot support the amendment.

Lord Renton

My Lords, I am in favour of the spirit of this amendment, and I do not see how anyone can be against the spirit of it. But I think that in practice it is likely to lead to a little bit more trouble than may have been envisaged. There are so many different degrees of discrimination. There can be the very slightest discrimination, consisting merely of cutting somebody whom one knows. On the other hand, there can be very wilful discrimination, coupled perhaps with harsh words and rudeness. But, as I understand it, this amendment is intended to cover the very slightest discrimination, as well as the more serious kinds. With that lack of definition, I feel bound to say that, although I agree with the spirit of the amendment, it could give rise to difficulties.

Lord Donaldson of Kingsbridge

My Lords, nobody who reads the PSI reports could think that this matter can be passed off lightly. The reports of discriminatory, or rather insulting, conversation, remarks and attitude are absolutely unanswerable. I think that it is essential to have a provision which is hard and firm making this something which one dare not do. If people do these things naturally, I think that there is a case for stopping them. There is clearly a difficulty of degree. Somehow or other one has to leave this one to the people who are enforcing the provision. But I think that to do nothing about the matter at all— which not to accept the amendment amounts to—would be entirely wrong.

With the hope that this provision can be properly applied, and in a reasonable way, I do not think that we have any alternative but to say that this is something which is going on every day, which everybody knows is going on every day, which is not getting less and which must get less, and therefore something rather drastic should be put into the Bill as at least a possibility for action by the authorities.

Lord Elton

My Lords, it seems to me to be central to our community relations policy and vital to our efforts to promote racial equality in this country that people should be treated as equals before the law in every respect. I am sure noble Lords opposite do not want to move towards an Orwellian concept of some being more equal than others. What in fact they want, as do we, is that members of the ethnic minority communities should be every bit as entitled to the courtesy and effective protection of the police as everybody else. That entitlement is 100 per cent. for them as well as for everybody else.

The Bill, as drafted, and the code of practice as drafted, ensure that any lapse by the police in this respect is already an offence and already carries a disciplinary penalty. The communities which the police have to serve are made up of an infinite variety of people. They may be descended from Asian, African, West Indian, Polish or Chinese stock. That is one band of criteria by which they are distinguished. But they may be men or women, and that is another. They may be members of the Conservative, Labour, Liberal or even Social Democrat parties, and that is a third. There are many more. Each person falls into some identifiable group. No matter what group he falls into, he is equally entitled to courteous treatment and effective protection from the police.

I hope noble Lords opposite will not treat the way that each of us reacts to this amendment as a kind of test of our loyalty to the concept of racial equality. That would be wholly misguided and dangerously misleading. I am sure noble Lords opposite would agree that any form of discrimination in the provision of the police service would be a serious breach of proper conduct.

If we look at the categories I mentioned a moment ago, ought not sex discrimination to warrant a separate motion if this one does? Also, how about politics? Is it not at least arguable that for the police to discriminate on the grounds of the political beliefs of the people with whom they deal would be at least as dangerous as for them to discriminate on racial grounds? If your Lordships doubt that, then hark back to the debates on the way we treat journalistic material and the way that some people think future Governments might behave. So—

Lord Donaldson of Kingsbridge

My Lords, I know the noble Lord does not like my interrupting him, and I know I always do. But we gave evidence. There is not the faintest evidence that there is sex discrimination in the behaviour of the police or political discrimination. There may be some political discrimination, but very little. However, there is a great deal of evidence that there is anti-black discrimination.

Lord Elton

My Lords, I enjoy the interruptions of the noble Lord, Lord Donaldson, because by knowing that he can resort to them he always makes his substantive speech so much shorter. The noble Lord says that a particular form of discrimination is at the moment, at this time in our history, more prevalent than are others. But history changes, and statutes are put on the statute book for a durable purpose.

I might also remind noble Lords that the PSI report—and I recall this well— certainly said that there were racial attitudes portrayed by the police. But they went on to say most positively that they did not follow through into racially discriminating behaviour. If you look at the analysis of the opinions that people hold of the police and at the extent to which they are protected by the police, I think you will find that large sections of the black community have a better opinion of the police than do large sections of the white community. So I think that argument falls.

Chief officers of police, and we believe the vast majority of the police service as a whole, fully accept that a relationship of mutual trust between the police and all sections of the community is not only desirable in itself, but is essential to effective policing, which is their professional job. The police service is doing a great deal by a variety of means, and with our full approval and support, to foster and improve the relationships between the police and, in particular, members of all ethnic minority groups. Many forces have established community relations departments and a number have appointed police community liaison officers whose specific tasks include that of developing contacts, both formal and informal, with leaders and members of the ethnic minority communities.

There have been other significant changes in the area of police training in community and race relations, following recommendations of a Police Training Council working party whose report was published last year. All forces have embarked on a full review of their training programmes and all police officers now receive training in community relation matters at various stages in their careers. Particular efforts are put into such training by forces in areas with a high ethnic minority population. For example, the Metropolitan Police now includes human awareness training on its initial training course, which seeks to develop in young officers skills for dealing sensitively with all sections of the public.

The Government, too, are playing their part. A new training support centre has recently been opened at Brunel University. It will have an important role in studying the relationships between the police and the community in general and in developing and evaluating community and race relations training for the police. I speak of this with some feeling because 1 had police responsibility for the first 12 months of my time at the Home Office, when a great deal of this policy was being generated.

All this is background to the amendment. The context of the measure is not Government indolence or police indifference but Government and police being acutely aware of the issues and acting on them. Conduct such as noble Lords are concerned with is wholly inexcusable but it is not different, as the noble Lord, Lord Monson, said, in kind from other forms of police misconduct.

The police discipline code, which includes such offences as discreditable conduct and abuse of authority, is wide and flexible enough to deal with racially discriminatory policing. I can think of no circumstances in which discriminatory behaviour would not be caught by the provisions of the existing code. I believe that to include this amendment would actually be harmful. It would belittle the importance of other forms of discrimination that can be very sinister and harmful. It would suggest that racial awareness and fairness should override every other consideration in the code of conduct and that political discrimination and sex discrimination were in some ways more tolerable. It would also provide for officers to be charged—this is a further point—with unfair treatment of some individuals on grounds on which they could not be so charged for unfair treatment of others. That is in itself a form of discrimination that does not seem to me even-handed between the different communities that make up our nation.

Moreover, the amendment provides for a framework of disciplinary charges which are, as I have shown, superfluous. And, finally and consequentially, it is not the case that support for this amendment is the acid test for a good race relations attitude. By segregating the ethnic minorities by means of special treatment in this way, I do not think that your Lordships will do anything at all to improve race relations or police public relations. The amendment is wholly superfluous but not, I think, wholly neutral in its effects. The danger is that it will make things just a little bit worse. I hope that your Lordships will not accept it.

Baroness Lockwood

My Lords, before the noble Lord sits down, may I ask whether he would be prepared to reconsider the view that he has put to the House that there is no difference between racial discrimination and other kinds of discrimination? There are two areas of discrimination which have been outlawed in certain respects by law—race discrimination and sex discrimination. The noble Lord the Minister has said that there is no difference between sex discrimination and race discrimination in the context.

Lord Elton

My Lords, perhaps the noble Baroness will permit me to interrupt her interruption, as I had sat down and we do not want to start a new debate after the ministerial reply; otherwise, I would have to make another speech. I would just say that I did not say, and had no intention of saying, that they were not different. I said that they were just as important and that if you put one into the Bill, then you should put in others. Other noble Lords would have other examples. Then you would have about 17. That would leave other examples that were not in the Bill, and people would think that they did not matter at all. That is a very slippery slope and I woud advise your Lordships not to step on it. I do not think that I should reply further.

Baroness Lockwood

My Lords, does the noble Lord not agree that, in relation to race discrimination, there is a very real distinction in the sense that the police are, and have been, involved in incidents of race discrimination. We have had riots where race discrimination has been involved. In no other context, such as sex discrimination or political discrimination, to which the noble Lord referred, has this occurred.

Lord Elton

My Lords, with your Lordships' leave, that point was very succinctly made by the noble Lord, Lord Donaldson, and I did reply to it in my substantive answer.

Lord Elwyn-Jones

My Lords, I confess to feeling a great sense of disappointment in the response of the Minister, who is normally sensitive about these matters, to the matters raised by those who support this important amendment. The sadness is that tonight, unfortunately, the noble and learned Lord, Lord Scarman, is not with us. That great man spent weeks investigating this very problem in Brixton, where race discrimination, race hatred. race disorder was at the very root of the tragic outburst of disorder there. What I have in mind to do, in view of the importance of this matter, is not to call on the House to make a decision on it tonight in the Division Lobbies but to come back to it again at the final stages of this Bill, on Third Reading. There is no comparison between sex discrimination and the humiliation and insult of racial discrimination. The people of Wales were discriminated against for centuries. They have made up for it, fortunately, since.

The black blight of racial discrimination has tarnished most of my lifetime. A great deal of my personal life has been spent resisting it, if I may be so vain as to say so. Now, in the relics that remain, there is some attempt by the National Front to raise discrimination on an anti-semitic level. But the elements that remain in many of the communities to which many of the immigrants have gone are more than relics; they are dangerous elements that are fomented there by evil people in the National Front and elsewhere, who take advantage of the situation. To inspire confidence we still need to take further steps.

We recognise and welcome the efforts that senior police officers and policemen up and down the country are themselves making in this field, but to include this in the code of discipline of the police themselves will, in my submission, be a valuable element, first of all, in so far as it is necessary, in reminding the police of this as a major duty in behaviour; and, secondly, in going for reconciliation with the community around them. Racial hatred and discrimination goes to the very heart of the difficulties and antagonism that the immigrant communities feel. We regard the matter as of such importance that we shall come back to it again in October. I hope that by then the Home Office will have had time to have second and better thoughts on this matter. In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.38 p.m.

Clause 99 [Representation at disciplinary proceedings]:

Lord Plant

moved Amendment No. 167: Page 88, line 29, at end insert— ("( ) Where an officer has so elected and has been acquitted of the charge or charges, he shall be reimbursed the cost of his legal representation from Public Funds.").

The noble Lord said: My Lords, it may help if I say that I shall be very happy indeed to accept the amendment of the noble Lord, Lord Renton, who during this long review of the Bill has been very helpful to the police. I should like to explain very briefly what is involved when a police constable, a sergeant, an inspector, or, indeed, a superintendent has cause to present himself to the chief constable or his deputy in relation to some disciplinary charge. These hearings are, of course, in camera. We are not talking about police disciplinary tribunals. They are not subject to any judicial scrutiny. The rules of evidence and natural justice are sometimes ignored, and the results of some appeals seem to give testimony to those assertions.

In another place, Members stressed the necessity for legal assistance where the charge might result in demotion, dismissal, requirement to resign or reduction in the ranks, and so on, and it was made perfectly clear that at that stage there could be legal representation— something for which the Police Federation had fought for many years. The Government have made provision for that assistance to be available.

Your Lordships may ask: what are the disciplinary charges? What do the police suffer? I shall not weary your Lordships with the long list of matters with which police have been charged and which in industry would not really be considered extremely serious. For instance, one constable was on a disciplinary charge which resulted in his losing £1,000 by way of, I suppose, demotion because his wife had not licensed her car. In industry I doubt very much whether a managing director would be treated in that way. Nonetheless, the police accept that this is part of their way of life.

I am not seeking a privilege for police officers. Many thousands of people who go to courts and tribunals today are having provision made for their legal help from public funds. Many diverse persons are affected. Chief constables get legal assistance. Convicted prisoners at prison hearings, visiting boards and at courts have legal assistance, and rightly so. Deserted wives and many other people, as your Lordships are well aware, use the legal aid scheme. They have had the right for many years, and the public purse has paid whether a person is guilty or not guilty.

The thrust of my amendment is to ensure that, where a police officer is arraigned on a disciplinary charge and ultimately found to be not guilty, he may have the costs of employing a solicitor, a barrister or whoever it may be, paid from public funds. I do not believe that the amount would be very much. I do not know how many people who have been charged have ultimately been found to be innocent. I know that there are a number, but I cannot tell your Lordships whether it is very many, because I just do not know. But at least there is a question here of fair play.

Of course, when it comes to police disciplinary tribunals the whole court is set up with a legal chairman. Public funds pay for the setting up of that court, and the legal representation of both sides is discretionary. This amendment in some ways would seek to avoid going to the police disciplinary tribunals, and, therefore, it would probably save money.

Legal representation in the chief constable's room is perhaps where it is most needed. Policemen who are innocent will naturally scrape the bottom of the family barrel to find the money to defend themselves, and their families will suffer. I am not here pleading on behalf of the guilty policeman. This amendment is a cry for your Lordships to be generous to the man who, because of his difficult job, is charged and then ultimately found not guilty. I think that the costs that he has borne out of the family purse should be reimbursed to him, and, indeed, chief constables have this right.

Of course, some fall into the disciplinary net by the way of misfortune, and some by mischief by the public. Disgruntled members of the public do make mischievous complaints about the police, and then there is a disciplinary charge. I do beg your Lordships to look kindly on this amendment because, after the very long debate which we have had on this police Bill, in which some of your Lordships have hammered the police, I think that generally the police are very grateful for your Lordships' generous attitude towards them. I think that they welcome this Bill and will welcome it even more if this very small amendment is carried. I beg to move.

Lord Renton

moved, as an amendment to the amendment, Amendment No 167A: Line 2, leave out ("shall") and insert ("may"). The noble Lord said: My Lords, I am glad to support the amendment moved by the noble Lord, Lord Plant, if, as I understand it, he is prepared to accept my amendment to replace the word "shall" with the word "may", which accordingly I shall also beg to move.

We must remember that the career and the reputation of police officers will be at stake in these proceedings. We should consider—and this is a fundamental point which I would ask my noble friends on the Front Bench to bear in mind—that since the Costs in Criminal Cases Act 1952, which has been replaced by the consolidation Act of 1973, criminal courts have had a discretion to award people accused of crime costs, which are to be paid out of public funds, when they have been acquitted.

Police officers see that happening regularly in the criminal courts and they would find it extraordinary and manifestly unjust if their costs could not be awarded after their acquittal by a disciplinary tribunal, provided always that it is a matter within the discretion of the tribunal, as it is always in the discretion of courts and tribunals whether or not to award costs one way or another.

We must concede that there may be cases in which, in spite of his acquittal, a police officer's behaviour has caused a great deal of trouble. He may not technically he guilty of a disciplinary offence, but through his behaviour he should be deprived of his costs, just as sometimes happens in the criminal courts. But to say that there shall be no power whatever to award costs is fundamentally basically wrong.

We hear the expression "natural justice" bandied about a good deal in various contexts, but I would say that this would be a breach of a simple rule of natural justice and it could not cost much. I gave notice to my noble friend's private office yesterday that I would ask how much the annual cost of this modest amendment would be likely to be, and I shall be interested to hear the answer. But, as the noble Lord, Lord Plant, has said, in the nature of things it cannot be much. Surely money should be spent, provided that it is within reasonable bounds, in the interests of justice and for the benefit of police morale, which is so important.

Finally, perhaps I may attempt to answer the principal argument used by my noble friend when resisting a similar amendment at the Committee stage of the Bill. He said that, if this were conceded, it would have repercussions throughout the public service. I think that he had in mind prison officers, firemen and ambulancemen. But the police are different from all those other sections of the public service because the police are more vulnerable to complaints from society as a whole, whereas prison officers are only at risk from the limited number of prisoners in their care or from the prisoners' families and friends—a much more limited scope. As for firemen, generally they have the goodwill of the public; unlike police officers, they are not vulnerable at all.

We know that we do not get many complaints against the fire service. I know that I speak from rather distant Home Office experience, but nevertheless it was long experience at the time. As to the ambulancemen, just the same applies. In all my 34 years as a Member of Parliament I never heard a complaint about an ambulanceman. If I may say so with deep respect, the Government should have a greater sense of proportion in this matter than was revealed by the reply which we received from my noble friend on the previous occasion. I beg to move.

Lord Elwyn-Jones

My Lords, I rise to support my noble friend Lord Plant's amendment, which has been supported so eloquently and powerfully by the noble Lord, Lord Renton. There is a grave injustice here which has not yet been remedied. Clause 99 provides for a police officer on a disciplinary charge to be represented at the hearing by either counsel or a solicitor. There is no suggestion that legal aid will be available; none whatsoever. There is a total dearth of any provision from any source of public funds for the police officer who, by virtue of the terms of my noble friend's amendment, is an innocent man. He has been acquitted of a disciplinary charge. As my noble friend and the noble Lord, Lord Renton. said, it is the case that inevitably the police are more liable to be in contact with the public, more liable by reason of the fact that they are enforcing the criminal law, to be in danger of confrontations, however well and carefully they may carry out their duties. We have been talking a great deal about police morale. I think the public will welcome a provision such as this. The public would be rather shocked that a man who has been wrongly charged and brought before the police authorities —and nobody is asking for him to be compensated for a false charge—does not have some provision by way of payment of his legal expenses.

Lord Renton

My Lords, I wonder whether the noble and learned Lord will allow me to intervene. The man may. on the face if it, have been rightly charged, but when the matter has been gone into it is found that he is clearly not guilty and is therefore acquitted. I felt that the noble and learned Lord would not mind my making that correction.

Lord Elwyn-Jones

My Lords, the difficulty about speaking quickly and shortcutting matters is that one truncates too much. I shall not take more of the time of the House on this matter. I support the amendment of the noble Lord, Lord Renton, and I expect that on further thought my noble friend Lord Plant will be disposed to do the same. I hope that this time the Home Office will be able to meet these reasonable suggestions.

Lord Donaldson of Kingsbridge

My Lords, from these Benches we fully support this proposal. It seems to be natural justice that if yu are put to expense in defending yourself against an accusation which is proved wrong—whether reasonably made or not has nothing to do with it—you should be entitled to compensation for your expenses in defending yourself. I have no doubt about this at all. I do not know much about what happens in courts of law, but I always understood that people who won cases got costs, and sometimes very good costs. It would be ridiculous to deny this to the police.

I do not want the noble Lord who is to reply to think that when the matter about prison officers comes up, as it will before so very long, I shall take any different view. My own view about the prison officer is that he is more likely to be wrongfully accused than even a policeman. But this point has not yet come up and there is no reason to face it until it does.

Baroness Macleod of Borve

My Lords, I should like to add my few words on this. I agree with everything that has been said. I think that society in general owe it to the police to pay them compensation if they are acquitted of any complaint. I agree entirely with my noble friend Lord Renton that this provision would help the morale of the police. By that I do not imply that the morale of the police is low—I am certain it is not—but on occasions of this kind any individual police officer's morale must be low and he must wonder what financial difficulty it will land him in.

I see that under Clause 99 legal representation is mentioned many times. I understand from that, and from what noble Lords have said, that legal representation is not free as it is for other people appearing before courts. I believe that has been aired in Committee. They should be entitled to free legal aid, which is another way of saying it, and compensation from public funds should be paid if an officer is acquitted.

Lord Hutchinson of Lullington

My Lords, I invite the Minister not to be inflexible on this. It took years to get the 1952 legislation through. Since it went through it has taken years to get the courts to exercise their discretion so that the successful defendant automatically gets his costs, unless he has brought them upon himself. It was thought that it implied criticism of those who brought the case. It has taken all those years to get justice for the ordinary defendant. Could the Minister not embark now on another 10 years of urging to get this for the police?

Lord Elton

My Lords, I recall the enthusiasm with which noble Lords all round the House raised this matter at Committee stage, and I recall that I said that I would go away and think about the arguments then implied, particularly by the noble Lord, Lord Plant, by my noble friend Lord Renton, and others.

The argument was that police officers should be treated in a special way because they do a special job and are particularly vulnerable, therefore, to accusations by members of the public. I accept entirely that the work of police officers brings them into many situations of conflict and that this may generate complaints from members of the public. If we are to be asked to protect them from the effects of those complaints, we must be clear what exactly those effects are and whether they have an influence on the way that the disciplinary system bears upon police officers that makes its effect upon them quite different from the effects upon other people of the disciplinary systems under which they work. That seems to be the thesis on which all noble Lords have approached this problem. It is because of the work that they do that they are exposed to greater risk of losing their job or their seniority. That is what distinguishes them from the rest of the community.

So what is our experience in this field? Our experience is that in practice only a tiny minority of complaints from the public lead either directly or indirectly to formal disciplinary proceedings. The Police Complaints Board received over 16,000 cases in 1983. In that year also, excluding discipline charges arising from an actual criminal conviction— which must be seen as leading to dismissal, anyway—173 officers were charged with disciplinary offences arising from formal complaints and the vast majority of these were either acquitted or received a caution, a reprimand or a financial penalty. We are talking of a force of about 120,000 men.

That does not suggest that the policemen, of whom, as I said, there are about 120,000, are desperately threatened on that score, or that they are more exposed to dismissal or loss of seniority than anyone else. They may be exposed to lesser charges. Indeed. this afternoon many of your Lordships have reminded me of how small they may be; how discourtesy infuriates some people, quite rightly; and a wrongly phrased sentence may result in a complaint. Your Lordships are asked to consider those serious cases which can lead to a loss of job or a loss of rank.

When my right honourable friend introduced this clause in another place, he did so on the clear understanding that the costs incurred by an officer who chose to be legally represented at a disciplinary hearing before his chief constable would be met by the officer concerned or by his staff association. The clause was introduced in recognition of the genuine concern felt by many police officers that they should not be at risk of losing either job or rank without having had the opportunity to retain a lawyer to present their cases for them. That is a privilege not extended as a matter of course to workers in other fields and it was certainly not because police officers facing disciplinary charges were in any sense disadvantaged compared with the majority of the working population that it was made.

Legal repesentation at an internal disciplinary hearing before an employer is still the exception rather than the rule, and the effect of this amendment providing representation for free for the police would be to turn a perfectly justifiable concession into a very marked privilege for members of the police service. It is the Government's view that public funding could not be justified for this purpose. Besides, my Lords, paid legal representation was no part of the case that the Police Federation originally presented so forcefully to my right honourable friend. They certainly argued the case for a lawyer to be present at the hearing of most serious charges. but they accepted that the cost might have to fall to their own funds. The present proposal therefore represents a distinct advance from that position and it does not suggest to me that the Police Federation is so firmly wedded to this particular principle, which they did not earlier advance, that their morale would be adversely affected if it was not granted.

The Police Federation has a long and honourable history stretching back to its establishment in 1919. It is well equipped and experienced to support and assist its members in this way. All officers in the federated ranks up to chief inspector are members. At the end of last year total membership stood at more than 119,000, with virtually every officer contributing. The annual subscription of each of those 119,000 or so contributing is £28. So we are not talking about an impoverished organisation unable to bear the financial burdens that legal representation would place upon it or one that would not be prepared to pay. I ask your Lordships not to think that you are standing up against a flinty Government on behalf of a policeman who would have to find these sums out of his own pocket. "The Government's resources"—I can hear my noble friend replying—"are greater still than those of the Police Federation".

Moreover, we have also said that we are talking about de minimis. My noble friend has argued that the sums of money are very small. They are quite small and they are smaller than they were in Committee because the original proposal in Committee has since been modified in the amendment of the noble Lord, Lord Plant, and further modified to provide a discretion rather than an obligation in the case of the amendment of my noble friend. I am most grateful to him for coming forward and seeking in this way to ease the path of the Government towards a compromise which it is always so agreeable to enter into.

Let us look a little further at the question of costs. In the first instance, we are talking only in terms of tens of thousands of pounds of costs directly incurred, as we are considering only those cases where the accused officer has been offered legal representation, has taken up the offer, and has been acquitted. But the implications go far beyond that, First. the provision of that advice must imply the provision also of legal assistance for the presentation of the case against the officer; and this of course will be at the public cost. That is only the beginning and we are already committed to it. But what concerns us now is that the decision of my right honourable friend to grant the possibility of legal representation has already placed police officers in a position which others see as privileged—certainly those in the public sector regard it as being privileged vis-à-vis their own positions. Prison officers do not have it. My noble friend suggested that they there would be no cry in favour of prison officers and others getting it if the police got it, but the noble Lord, Lord Donaldson. made it clear that such a cry would immediately follow.

I do not know whether my noble friend intends to intervene. He will respond later, perhaps. The ambulance crews do not have it; the firemen do not have it; civil servants do not have it. To turn a simple and coveted right to legal representation of police officers into a right to free legal representation would be to enhance the position of police officers far above these other groups, and would give rise to an immediate and strenuous pressure for similar concessions across the board—and in meeting it. everything I have shown your Lordships about the very small risk in which policemen actually stand would be thrown in our face. Your Lordships would have breached the essential principle and left us to take the consequences on the taxpayers' behalf.

Again, if, for lack of a principle, we were forced to concede, that would mean not just the cost of the lawyer representing the accused but the cost of a lawyer to present the case against the accused; and once we are talking in these terms, we are talking not in terms of tens of thousands but in terms of millions.

I will turn now, if I may, from the general proposition to my noble friend's helpful intervention. In doing so, I want to express my real appreciation for the efforts he has made to render the proposition more acceptable to us. Certainly it makes the proposal look at first sight a good deal more attractive. But it has two aspects that provide us with very great difficulty. The first, of course, is that it rests on the same basic principle as that which I have said we cannot find it in us to breach; but beyond this there is another. To provide a discretion about whether payment is to be made would clearly require a judgment on this aspect to be made in each case. I assume that my noble friend intends that judgment to be made by the disciplinary authority—and he referred to that authority as "the tribunal". That authority is usually a chief constable sitting alone. Even if he has legal advice, we do not think we ought to ask him to reach a definitive conclusion on whether or not the proceedings ought to have been brought before him. That. I suppose, must be the test. I am sure your Lordships will readily see that this would extend his role of deciding whether an offence had been proved on the evidence before him to judging whether the officer was morally culpable.

How would chief officers be expected to reach such a decision? On what criteria would they be justified in discriminating between one case or officer and another? In proceedings before the courts, this sort of decision is taken by an appropriate member of the Judiciary: but parallels between criminal cases and disciplinary proceedings are misleading, and we think it would be wholly inappropriate for chief officers to try to distinguish between more deserving and less deserving categories of disciplinary proceedings.

Regretfully, therefore, I must tell your Lordships that I cannot advise the acceptance even of my noble friend's very helpfully offered alternative.

I want to add only one thing (and I am discarding much, to your Lordships' universal relief and pleasure) and that is this. One or two of your Lordships have said: "This sort of thing is available in the criminal courts; it ought therefore to be available to the police". But, of course, the police are not debarred from the criminal courts, and if the police are brought into the criminal courts they have exactly the same relief and assistance anybody else has. So I think it is a dangerous parallel.

I make it quite clear that we cannot accept this amendment, even in its amended form. I hope I have not wasted too much time in trying to show your Lordships that this is not on any curmudgeonly basis. Police constables are not, in experience, so extremely at risk. They are backed by a very substantial organisation which treats them at least as well as the Automobile Association treats its members, and pays for their defence. Therefore, what your Lordships are proposing is a graceful and generous gesture; and if it was no more I would be the first to welcome it. But what I regret is that in its wake would come a whole lot of difficulties which your Lordships could not assist us in overcoming and which could be overcome only at the taxpayers' expense.

Lord Renton

My Lords—

Lord Inglewood

My Lords, before my noble friend sits down, may I ask one question? Where do the special constables stand in all this? My noble friend talks about an organisation with substantial resources and about police officers who pay regular contributions. There was also reference to prison officers, firemen and so on. and I just wondered where special constables, who are in the middle of all this, stood.

Lord Elton

My Lords, I know that my noble friend has a later amendment to try to remedy the absence of an organisation for special constables. As to the position of a special constable before a disciplinary authority, I think I may be able to add something to my answer when I start answering the question which my other noble friend is about to ask me.

Lord Renton

My Lords, with the leave of the House, I am not quite sure how I stand with regard to this matter. I wanted to ask my noble friend a question before he sat down, but my noble friend Lord Inglewood got in first. Have I a right of reply to the amendment to the amendment? I see that the noble Lord on the Woolsack nods his head. Therefore, if I may put my reply in interrogatory form, may I ask my noble friend this question? He said that there had been discussions with the Police Federation and I wonder whether he can clarify that, because in his long answer it was about the only point which impressed me. I am afraid that practically all his other points failed to impress me. But I would be impressed if he were to say—though it would be to my surprise—that the Police Federation had agreed that there should be no provision for these costs. If he could give us an answer on that, I think it would help to clear the air a great deal.

The other thing that I wish to do in my reply is to put the question that I would have felt bound to put before my noble friend sat down. I should like to ask him whether he is aware that I am afraid he misinterpreted what I said, when he gave the impression to your Lordships that I was suggesting that the other services would not make any such representations or applications for payment of their costs. I think that they would, but I say that the police have a very much stronger claim because of their general vulnerability.

Lord Elton

My Lords, if I can remember the questions I have been asked, and if your Lordships are content for me to answer them after my original answer, which I accept from my noble friend was long, I would say that the first question which my noble friend Lord Inglewood asked was whether special constables were subject to the disciplinary code. The answer is, yes. They are therefore in the same position, and I realise that this will relate forward to an amendment which he has later on. As to the Police Federation, it is certainly the case that the Police Federation said that they would pay for their members. I understand that in the development, as it were, of the present amendment they may take a different view, but the fact is that they are well able to do so.

Lord Plant

My Lords, I am disappointed with the noble Lord's reply. The hour is late, but I should like to try to deal with the points that the noble Lord has made. The Police Federation looks after its members. It has fought over many years to have a completely independent complaints tribunal. What the Government have done in this Bill is to go halfway. They have not met the federation's point of view. The Police Complaints Authority will not be completely independent in dealing with all complaints. The Police Federation would have liked the Police Complaints Authority to deal with all complaints and to take them out of the hands of chief constables. But the Government have denied that opportunity to the Police Federation. The Government said in another place that they would give to them the opportunity to be legally represented if the charge might result in reduction of pay or even dismissal. The cost of legal representation was not raised in another place.

The Home Office have had discussions with the Police Federation about the use of their funds for this purpose—and rightly so. Their accounts are presented to the Home Office, which very carefully scrutinises them. It would have been foolish for the Police Federation to say that they were not going to pay the legal costs of their members. Had they done so, they would have been completely out of step with most of the trade unions in this country, though I believe they would be offended if they knew I had called them a trade union.

The Police Federation are desperately anxious that the Government should be obliged to meet the costs of legal representation. I told the Police Federation that I did not believe the Government would give way on that score, but that it was just possible that they would give way over the payment of the legal expenses of a man who is proved to be innocent. That is why I withdrew my amendment and adopted the half-way house represented by the amendment of the noble Lord, Lord Renton.

We have heard a great deal about the firemen and the Civil Service. Whoever wrote the noble Lord's brief must have been a badly advised civil servant. I say that because I know something about the Civil Service. Civil servants can appeal to an independent tribunal if they are dismissed, or if other matters of that nature have to be dealt with. I shall not go so far as to say that they are legally represented, but civil servants do not suffer any loss of pay. I have never heard of a civil servant being dismissed or being charged, say, £1,000 because his wife had not licensed the family car.

Turning to the armed forces, if a serviceman is charged with an offence which leads to a court of inquiry, he is legally represented, free of charge. Some Members of your Lordships' House have represented members of the armed forces.

The noble Lord the Minister said that in order to meet what lies behind this amendment the costs of prosecution would have to be met out of public funds. I cannot accept that because the Government would be spending public money on prosecuting the accused, the accused should therefore be put at a disadvantage. I regard that as scraping the bottom of the barrel in order to find an argument.

I wonder whether the Government really wish to maintain the morale of the police service. I believe that on this occasion the Government could have shouldered something which would cost relatively little. Indeed, I would go further. I would try to persuade the Police Federation not to ask for any costs for a minimum period of two years until we see how the situation develops. But it should, of course, be in the Act so that there can be a fallback.

I think a great deal of discussion could take place on the police negotiating board, and I should have thought that this was an opportunity for the Government to demonstrate that some of the things in this Bill which the police do not like could be put right—things which the Police Federation have been fighting for. Admittedly, the Police Federation will back any member, but of course if it is a special constable, they will not be entitled in any question of legal expenses to bear them because the constable will not be a member of the Police Federation.

I think that the point of the noble Lord, Lord Inglewood, about the special constabulary is a good one, and we ought to consider it. I want to make a further appeal to the Government to give me some hope that they will reconsider this for the Third Reading stage, otherwise I have no option but to divide the House.

Lord Elton

My Lords, I do not think the rules of order or the mood of the House encourage me to make a lengthy further speech. The noble Lord raised a number of points, and I think I shall only mention, since he mentioned the civil servants, that a dismissed civil servant going to an appeal tribunal is no different from a police officer going to the Secretary of State on appeal. The latter, too, will have legal representation paid for out of public funds, so they are actually on an equal footing at present.

What the noble Lord is trying to do is to put one head and shoulders above the other. The Police Federation told us that they did not expect to be funded out of public funds for this purpose, which they were prepared to take on. There is no more I can say without annoying your Lordships still further by speaking longer.

The Deputy Speaker (Lord Aberdare)

My Lords, before the noble Lord, Lord Plant, decides what to do, the Question before the House is, That Amendment No. 167A be agreed to? As many as are of that opinion will say, Content? … To the contrary, Not-Content? … I think that the Contents have it.

Noble Lords

Not-content!

The Deputy Speaker

Clear the Bar.

Division called.

Lord Denham

Let the Question be put again, my Lords.

The Deputy Speaker

My Lords, the Question is, That Amendment No. 167A be agreed to? As many as are of that opinion will say, Content? … To the contrary, Not-Content? … The Contents have it.

Amendment No. 167A, as an amendment to Amendment No. 167, agreed to.

The Deputy Speaker

My Lords, the Question now is, That Amendment No. 167, as amended, be agreed to? As many as are of that opinion will say, Content? … To the contrary, Not-Content? … The Not-Contents have it.

Amendment No. 167, as amended, negatived.

Clause 103 [Arrangements for obtaining the views of the community on policing]:

11.28 p.m.

Lord Donaldson of Kingsbridge

moved Amendment No. 168: Page 94, line 10, at end insert ("and maintaining order in that area.") The noble Lord said: My Lords, if I may claim your attention for a minute, we have debated this Bill for nine days and apart from a couple of references on Second Reading, nobody has spoken about far the most important clause in the Bill; that is, Clause 103, which is described as: Arrangements for obtaining the views of the community on policing". There has been no comment on these arrangements because nobody wants to amend them. Basically, this is a clause with which we all agree. Knowing that on Report there is no Question that the part shall stand, the only method by which we could ensure some discussion on this clause was to submit a probing amendment and hope to have a proper discussion, so that the people who read Hansard in the years to come will not think that the Members who dealt with this Bill ignored, as I have said before, the most important element in the Bill. This is an effort to secure a short debate—and it has to be jolly short because it is half past eleven, and I will reduce what I intended to say by nine-tenths.

There must be some discussion of this clause, if only in honour of the noble and learned Lord, Lord Scarman, who did much in the first place to get the idea of community policing going. He is sorry he could not be here now but he assured me this evening that nothing had happened since he wrote his report to diminish his enthusiasm, and, in fact, much had happened to increase it.

I can illustrate that by a letter which was written by Canon Charles Walker, who was the chairman and is now the vice-chairman of the Scarman-inspired Community/Police Consultative Group for Lambeth. He wrote to The Times on 24th March this year and informed us that the L district of the Metropolitan Police, which is in fact Lambeth, have just made known the crime figures for the borough in 1983. Compared with 1982 they show a drop in street robberies"— mostly muggings— of 26.8 per cent. for the borough as a whole: for Brixton … the drop is 38.1 per cent. Violence has gone down by 21.4 per cent.; and there has been a considerable drop in car crimes. He points out that these striking improvements must be seen against high recent levels of crime, but they are nonetheless remarkable. He ends modestly by saying: The Community/Police Consultative Group for Lambeth, which has maintained a continuous dialogue between the police and the community throughout the past two years, can fairly claim to be part of this encouraging evolution". It seems to be quite clear that one cannot say that this dialogue caused the reduction in crime, but it certainly had a very great effect on that reduction.

I have been mixed up in this game as a layman for the past 30 years or so, and I think I can honestly say that this is the first piece of irrefutable good news that I have ever had about penal affairs in the whole of that time. It is the first instance of an attempt to reduce crime which seems in a modest way—and 25 per cent. is not entirely modest—to have succeeded. Nothing else in the Bill will do anything like that. This is the only measure in the Bill which could make a difference. So I ask noble Lords to stop for a moment, at 11.31 p.m., and discuss this question for a few minutes because it is absolutely fundamental to the future, certainly of our inter-urban and city problems, which are a serious worry to all of us.

I had much more I wanted to say, but I shall not say it. I ask only that your Lordships spend the next five or six minutes considering this. I do not want to press the amendment because, although I think it slightly improves the Bill, this Bill is quite good without it in this respect. However, I want to open up an opportunity for a general discussion. I beg to move.

Lord Hooson

My Lords, I should like to say a few words about this amendment because this clause seems to be potentially the most important in the Bill. It is the least precise in many ways, although there is the imperative command "shall" in each subsection. Nevertheless, the truth is that in most parts of the country the relationship between the police and the community is excellent, and has always been so. However, there has been a discernible trend over the past two generations to get the police driven into isolation, and there was a lack of community policing all over the country—particularly, perhaps, in Devon and Cornwall, where the original movement of community policing in its modern context began and was publicised. We have seen the trend which is now reflected in this clause.

We have been concerned in this House, in this debate, with law and order, and, as has been made clear, Members in all parts of the House, whatever view they have taken, are in favour of law and order, but in a civilised society. It is very important that that is emphasised. It is very important to the future of this country that there should be that confident relationship that should always exist between the police and the community at large.

The noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Elystan-Morgan, and I were brought up in different generations but on the same circuit, where there was always an extremely good relationship, discernible for all to see, between the police and community. In this Bill, which is, after all, codifying a good deal of the law, there is this provision which is potentially so important. I think that it is important that from this House should go out the message to police forces all over the country that generally we have the greatest respect for the work which the police do and their relationship with the community. We are concerned with what the noble and learned Lord, Lord Scarman, told us to be concerned with on Second Reading—the safeguards against the misuse of power. It should not be thought that the misuse of power is, as it were, common, but there are pockets of it in different places. We respect the police, but we are at the same time concerned to ensure the liberty of the subject. That is why this clause is so important.

Lord Elwyn-Jones

My Lords, I join in the expressions of enthusiasm for the clause. I note that the noble Lord, Lord Hooson, managed to place me in an elderly category when he referred to the generations—the three generations who saw life on the Wales and Chester circuit; and very happy days they were too.

This is a most important and, as has been said, the most heartening part of the whole of this review of the scene of the police and their operations. I am delighted that the initiatives that have been taken, and are increasingly being taken, in different parts of the country towards community policing should now be approved not only by the public at large but, of course, by the police themselves.

Lord Inglewood

My Lords, may I give my support to the noble Lord, Lord Hooson? I think that these few words which he is putting before us are very important. If we read them together with the rest of the first subsection of Clause 103, it seems exactly what the general public wants. I hope that the Minister will agree. There is always a little apprehension that he will tell us that chief officers of police are responsible for operations and that the maintenance of order in their areas is their responsibility. I understand that the chief officer is responsible for maintaining order, but I cannot see that it would be his responsibility to obtain the views of the community. I strongly support the noble Lord, Lord Hooson.

Lord Elton

My Lords, I am in complete agreement with noble Lords who have supported this amendment that the maintenance of order is a proper subject for local consultation, and that is the subject of the amendment. But I hope that they will accept my assurance that it is already covered by Clause 103(1). Keeping the peace is an important aspect of policing and as such it falls under the first part of subsection (1) which deals with, matters concerning the policing of the area". It could be argued that police action in crime prevention also falls under that definition, but it seemed desirable to include a separate reference to public co-operation in preventing crime because it goes somewhat wider than "the policing of the area" and may well include action by local authorities and other agencies, as well as co-operation by members of the public.

We should not forget that consultation arrangements now exist, in various stages of development, in almost all police areas. Where committees have been established, they have discussed a wide range of issues which seemed to them relevant, and public order is one of them. I understand that in West Yorkshire recently, for example, a special meeting of the Pontefract Division police-community forum was called solely to discuss the disorder in Hemsworth and other mining villages, and that it proved an extremely useful opportunity for the ventilation of views and feelings. Your Lordships will be much more familiar with examples nearer home; for instance, in the borough of Lambeth. It is not the intention of Clause 103 to prevent such discussions, and I am sure that noble Lords will accept that that is not the case.

I must say that when the noble Lord's amendment appeared I had not divined that it was to appear as an opportunity to deliver sentiments by a noble and learned Lord, who is not here, in a procedure on a Motion (that does not exist) that the clause shall stand part of the Bill. Therefore it may be that some of my replies have slightly failed to catch the points that noble Lords opposite made. But I think that our track record and that of the police in getting the community relations exercise off the ground, in both training and consultation, says more than anything that I can say from this Dispatch Box.

Lord Donaldson of Kingsbridge

My Lords, I am grateful to noble Lords who have supported the amendment and to the noble Lord, Lord Elton, for his reply. I should like to say only one thing, which is that the existing body run by, as it was, Canon Walker and Commander Marnoch of L District, seems to have been a model body. The way this sort of thing usually goes wrong is that other bodies are not half as good, due to personalities and one thing or another. There is a certain amount of evidence, with which I shall not bother the House now, that a certain number of other areas are not making anything like as good a shot at it as they are in Lambeth. I want to be sure that the Secretary of State will be properly advised through his own department by somebody who watches these matters and whose business it is to look after them. I would have made a longer speech on this matter had it not been so late. I have dropped it and perhaps we will talk about it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 [Amendments relating to Police Federation]:

[Amendment No. 169 had been withdrawn from the Marshalled List.]

Lord Inglewood

moved Amendment No. 169A: Page 97, line 32, after ("force.";") insert— ("(1C) There shall be a Federation for England and Wales and a Federation for Scotland for the purpose of representing members of the Special Constabulary in England and Wales and in Scotland respectively in all matters affecting their welfare and efficiency.";").

The noble Lord said: My Lords, I beg to move Amendment No. 169A on the Marshalled List. This amendment has a very simple purpose. We turned to the same issue during the Committee stage when it became apparent that the Special Constabulary had no organisation which represented their interests, their efficiency or their welfare. Unlike all other ranks in the police service, special constables have no such organisation.

We have ACPO, which represents chief officers of police and superintendents; and then we come to the federation. The federation covers special constables, if it can be so described, because the feeling of friendliness between those two bodies has not always been as warm and kind as it ought to be.

I should mention that not so very long ago, at the annual conference in Scotland, on the agenda for the Scottish federation was a motion that the Special Constabulary should be disbanded, I should not like to dwell long on this point at this time tonight. But it came out from the reply that the Minister was unable to help regarding the representation of the 15,000 special constables, such as we now have them, because there was no way whereby he could draw representatives together. However, I think it could be done. One way in which it could be done would be along the lines of the amendment which I have tabled. If the Minister does not like that way, perhaps he can give us another. I would not mind whichever way it was drafted. Volunteers who are at the moment a band of 15,000 men could easily be 30,000 if we had the right sort of feeling going through the country that sooner or later there must surely be some organisation which will look after their interests efficiently. I think it is the responsibility of Parliament to see that some such organisation exists.

It is not just for senior officers to say that they will look after it all in their time. That is not the way I see it at all. I would see it as a separate organisation. I hope the Minister will say that it is now the intention of the Government to do something of this kind. I beg to move.

Lord Elton

My Lords, I find myself agreeing with the motives of my noble friend in putting forward his amendment, but I wonder whether he will bear with me for a moment. The purpose of the Police Federations for England and Wales and for Scotland is to represent police officers and cadets who are earning their livings in the police service and who are prohibited by Section 47 of the Police Act 1964 from being members of a trade union. The role of the Police Federations is to represent their members on such matters as pay, conditions of service, welfare and discipline, in the same way as trade unions represent the interests of other groups of workers.

Special constables are part-time workers and they are volunteer workers. Most of them have full-time jobs elsewhere. They do not receive any pay and such conditions of service as hours of duty, leave, and overtime, which are of major concern to regular officers, do not concern special constables. Membership of the Special Constabulary does not affect their livelihood and, as volunteers, it is for them to decide what contribution they are prepared to make to the police service. They do not therefore need the same kind of representative body as that provided for full-time members of the police service because they do not need it for the same purpose.

I understand that my noble friend is after a body that can represent the Special Constabulary at national discussions. He told us so on the last occasion. But he will recall that the question of the representation of the Special Constabulary at national level in England and Wales was specifically considered by the Working Party on the Special Constabulary that reported in 1976. I rather think that I mentioned this in Committee. The working party included special constables, and it was advised by a representative group of 16 special constables from all parts of the country. Its conclusion was that national representative machinery for the Special Constabulary was not necessary. We are not aware of any subsequent widespread feeling in the Special Constabulary that this conclusion was wrong. If the special constables do decide, nonetheless, that they would like some representative machinery, they can set it up without the need for express statutory provision.

The statutory provisions for the Police Federations are necessary because of other provisions in the Police Act 1964, such as Section 47, which prevents police officers from joining trade unions. This makes it necessary to define the Police Federations' status and functions; but, so far as we know, the informal arrangements for representation of special constables in fact work well. I do not think I need to go further except to say one thing, because I trailed my coat on the discussion as to whether or not legal representation of policemen should be paid for by the federation. Of course, the principle concerning the federation is to protect members who are likely to lose their livelihoods. However, as special constables do not get their livelihood from their constabulary duties they are not at that risk.

I think I have said everything of substance that I need to say. If my noble friend will allow me, on reflection, to add anything on paper, I shall be happy to do so. But it seems to me that I have shown that, if such a body is needed, it is in the power of special constables themselves to provide it without statutory provision.

Lord Inglewood

My Lords, I put down this amendment because it was unclear at Committee stage what we should have in the way of an organisation and relationships between the Special Constabulary and their regular colleagues and others. We may have gone a little further tonight, but we have certainly not gone all the distance that we should have achieved. I would not want at this time of night to expand the debate. I would simply beg leave to withdraw the amendment at this stage, but I can promise my noble friend that there will be something on some paper somewhere trying to put this right.

Amendment, by leave, withdrawn.

11.48 p.m.

Clause 113 [Meaning of "serious arrestable offence"]:

Lord Mishcon

moved Amendment No. 170: Page 100, line 41, leave out paragraph (e). The noble Lord said: My Lords, I should like also to speak to Amendment No. 171.

Amendment No. 171: Page 100, line 42, leave out paragraph (f). By reason of the lateness of the hour, it really depends upon whether the noble Lord the Minister is able to accept these amendments as to the course that I shall take. I propose to deal with the matter briefly. To put it bluntly, this is an attempt by the official Opposition, with the support, I believe, of others in your Lordships' House, to rescue the Government from what really is an absurdity in the Bill. Through-out the Bill occurs like a golden thread (if that is the right adjective to attach to the thread) the matter of "a serious arrestable offence". Upon the definition of a serious arrestable offence depend very much the serious provisions of the Bill and the powers given to the police relating to it.

The definition is governed by Clause 113. Your Lordships will see the aburdity when it is found that three definitions are possible. The first is set out in subsection (2)(a) as an offence specified in Part I of Schedule 5 to the Act. Your Lordships will see, if you turn to Schedule 5—I give merely the first four examples—how serious are the crimes: murder, manslaughter, rape and kidnapping. There follow, as Nos. 5, 6 and 7, serious sexual offences. Then, there is an offence under an enactment specified in Part II of the schedule governed by subsection (2)(b). I merely read out examples: causing an explosion likely to endanger life or property, intercourse with a girl under the age of 13, possession of firearms with intent to injure, and, taking further examples, hostage-taking and hi-jacking. Your Lordships will then realise the serious nature of that definition.

The third one, in subsection (3), is: any other arrestable offence is serious only if its commission—

1. (a) has led to any of the consequences specified in subsection (6) below; or
2. (b) is intended or is likely to lead to any of those consequences".

If your Lordships will turn to subsection (6), again you will see very serious offences:

1. "(a) serious harm to the security of the State or to public order;
2. (b) serious interference with the administration of justice or with the investigation of offences or of a particular offence;
3. (c) the death of any person;
4. (d) serious injury to any person".

Then one gets to paragraphs (e) and (f), which we are seeking to delete in order, as I have said, to save the Government from an absurdity. Paragraph (e) refers to, substantial financial gain to any person", and paragraph (f) refers to, serious financial loss to any person", a matter within the subjective judgment of the police officer who is seeking to make the arrest.

We made the point at Committee stage. It does not do any good to repeat it ad nauseam or to exaggerate it. But what is, for example, in paragraph (f)— serious financial loss to any person"— which is to be judged by a police officer? I believe I gave the example before of the 5p. Being the age I am, I nearly said "a shilling". To somebody who is poverty-stricken, 5p is a serious financial loss. It has to be judged whether the miser, dressed in very shabby clothes but worth many hundreds of thousands of pounds, has had a serious financial loss when £500 is taken from him. The absurdity of this financial consideration meaning a serious arrestable offence, which, as I said, is so serious a matter in this Bill, speaks for itself. If the noble Lord the Minister is able to say that he has now taken these points on board and accepts the amendment, that disposes of the matter. If he is not, I shall have to take a certain course, having regard to the importance of this matter and the lateness of the hour.

Lord Monson

My Lords, as someone who, at the Committee stage, moved an unsuccessful amendment to paragraph (e), I should like to comment very briefly on this amendment. I agree entirely with the noble Lord, Lord Mishcon, that paragraph (e) is wholly unsatisfactory as it stands. But does not the sweeping nature of this amendment tilt the balance too far in the other direction? As I interpret the effect of this amendment, if it is passed it would alter Clause 113 to such an extent that a repetition of the Great Train Robbery, with millions of pounds stolen, would have to be classified as a non-serious arrestable offence. Surely this is not what any of us would wish.

Lord Elton

My Lords, I am obliged to the noble Lord, Lord Monson, for his intervention. The first amendment in this group would remove paragraph (e), which provides that an arrestable offence is serious if one of its consequences is, or is intended or is likely to be, substantial financial gain to any person". Noble Lords have a second amendment which would remove paragraph (f). It provides that their second criterion is a, serious financial loss to any person".

Your Lordships will remember that we debated similar amendments in Committee. Noble Lords then thought that the terms of these two paragraphs were too uncertain and subjective, but nevertheless they agreed that they could not simply be deleted. If they were, no offence of dishonesty, however great, as the noble Lord, Lord Monson, has just pointed out, could constitute a serious arrestable offence; and that would be absurd. So in rescuing us from one absurdity the noble Lord is perhaps plunging us into another, and a worse one.

After prolonged debate we came to the conclusion before Committee that paragraphs (e) and (f) are right as they stand. Paragraph (e) provides that a test of substantial gain as distinct from serious financial loss is necessary to cover serious crimes such as large-scale prostitution or drug dealing.

As to the word "substantial", it appears in a wide range of modern legislation, including Section 2 of the Rent Act 1968, Section 1 of the Restrictive Trade Practices Act 1956, and so on. In the leading case of Palser v. Grinling Viscount Simon made it clear that whether or not the test of substantiality was met in an individual case had to depend on the circumstances of that case. Linking financial gain to a specific financial sum whether or not it was indexed to the inflation rate would be arbitrary and artificial. Ever since that case the courts have been perfectly able to interpret the test of substantiality without recourse to arbitrary qualification and can decide whether a sum is substantial or not as one decides whether a knife is substantial or not—it depends on the circumstances.

I think that this must be a matter of common sense and that arbitrary limitations would only complicate and impede the work of the police and are out of place. If they exercise their reserve power in the case of an offence which does not, on a commonsense basis, involve a substantial gain or a substantial loss, they can be called to account for it.

As to financial loss, the Bill as drafted is saying in effect that an assessment of the seriousness of an offence cannot be made in the abstract where the offence concerns financial loss to a victim; the assessment has to take account of the circumstances of the individual case. This is not a new proposition. It has for long been a principle of sentencing in the courts that a sentence may properly reflect the effect of the offence on the victim taking into account his financial circumstances and income.

The anxiety underlying these amendments is, I believe, that coercive powers should not be used where the offence concerned does not merit this. I understand this anxiety, but of course the seriousness of an offence is only the first hurdle that has to be crossed before a reserve power can be exercised. Each of the powers has its own conditions built into it. In the case of Clause 55, to give only one example, delay in the notification of an arrest must be authorised by a senior officer and can only be authorised if the criteria specified in subsection (5) are satisfied. So the fact that a particular case involves a serious arrestable offence does not of itself mean that any of the reserved powers can therefore be exercised: rather, we should read the Bill as saying that none of them may be exercised unless the offence is a serious arrestable offence in the first place, and then go on to the other tests.

I could go on at greater length, but I think that what the noble Lord wanted to do was to elicit from me either an easy submission or an indication of hostility. I regret to tell him that he has not saved me from absurdity and I shall quote only one further source. If we were alone in our contention, I might feel a little nervous in the face of what were recently the massed ranks of the noble Lords of the Labour Party. But we are in fact in reassuring company. We arc supported in our conclusion that the clause is right on this subject by no less a person than the Shadow Home Secretary, who is also, I believe, a member of the same party.

In Committee in another place he said that there were in his constituency numerous cases —and I am taking care to paraphrase his words—of old ladies in their eighties having their houses burgled and their small savings stolen. The effect on their lives of losing perhaps £60 was shattering. To an elderly pensioner it could seem terrible. He urged us very strongly to see that police resources were deployed to the maximum to arrest the culprits in such circumstances and to try to prevent such things happening.

He actually acknowledged that the Government had right on their side in saying, for the purposes of the Bill, that the nature of the crime should be assessed on the basis of the impact upon the victim. He cited road checks as one of the means by which that sort of crime ought to be combated, and of course it could not be if it was not a serious arrestable offence. I shall not stay to glory in that happy discovery from col. 806 of the 24th sitting. I shall leave the noble Lord to savour it during the holiday.

Lord Mishcon

What a gift for the holiday the noble Lord the Minister has given me! I should never accuse him of hostility—that is a quality that he is quite unable to extract from himself. What I do find in that brief is a feeling that this is not a happy phrase. If the Shadow Home Secretary in another place pleaded on behalf of the poor victim, then that is something that I obviously respect; it is something that all of us would do. But in my judgment it has nothing to do with some of the points that I was trying to make before.

I also believe that there was a challenge—and it was a fair one—from the noble Lord that one ought to be able to produce an alternative, and obviously I how to the opinion that was so expressed in this short debate. I think that we ought to try to supply an alternative which I hope will be acceptable to the Government. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 171 not moored.]

Clause 117 [Extent]:

Baroness Trumpington

moved Amendment No. 172: Page 103, line 7, at end insert ("other than section 18 of the Pedlars Act 1871,").

The noble Baroness said: My Lords, this is a technical drafting amendment. I beg to move.

Lord Elwyn-Jones

My Lords, what a pity it is so late! I should love to know what is in the Pedlars Act, but it does not matter.

Baroness Trumpington

My Lords, I could tell the noble and learned Lord.

Lord Elwyn-Jones

My Lords, privately, perhaps, afterwards.

On Question, amendment agreed to.

Schedule 1 [Special procedure]:

[Amendments Nos. 173 to 177 not moved.]

Lord Elton

moved Amendments Nos. 178 to 180: [Printed earlier: col. 202.]

The noble Lord said: My Lords, Amendments Nos. 178 to 180 are consequential on Amendment No. 16. Therefore, I beg to move them en bloc.

On Question, amendments agreed to.

Schedule 2 [Preserved powers of arrest]:

Lord Elton

moved Amendment No. 181: Page 107, line 4, at end insert— ("1959 c. 37. Section 1(3) of the Street Offences Act 1959.")

The noble Lord said: My Lords, in moving Amendment No. 181, with your Lordships' leave I shall also speak to Amendment No. 187. Amendment No. 187: Schedule 7, page 124, leave out lines 41 and 42. In Committee my noble friend Lord Trefgarne gave notice of our intention to bring forward amendments to preserve the power of arrest for offences of soliciting conferred by Section 1 of the Street Offences Act 1959 and the power of arrest conferred by Section 13 of the Prevention of Terrorism (Temporary Provisions) Act 1984. I shall address the latter later.

Our general intention for this Bill is that miscellaneous statutory powers of arrest should be replaced with a clear and comprehensive scheme. We had therefore proposed that the offence of street soliciting, which is of course a non-imprisonable offence, should be dealt with in the same way as the generality of non-imprisonable offences under the scheme set out in Clauses 23 and 24.

But the law relating to prostitution is very complex and consists of a series of interlocking provisions. Changes in one part tend to have an effect in another. At present this whole area is being considered by the Criminal Law Revision Committee in its review of the law on prostitution and allied offences. The Committee is currently re-examining this subject in the light of the substantial amount of comment that it has received on provisional proposals in the working paper which it published in December 1982. It will, of course, be considering the question of the power of arrest specifically in the context of the problems arising from soliciting in the street.

Because this area of the law is now under such careful review, we believe that it would be wrong to make a substantive change in one part of it because this would pre-empt the final views of the Criminal Law Revision Committee. I would therefore ask your Lordships to adopt this amendment in order simply to preserve the present law on an interim basis, pending the final recommendations. I beg to move.

On Question, amendment agreed to.

Lord Elton

moved Amendment No. 182: Page 107, line 21, leave out ("section 12") and insert ("Sections 12 and 13").

The noble Lord said: My Lords, the omission of paragraph 13 from Schedule 2 is a simple oversight. I think that the need to preserve that paragraph as well as paragraph 12 is apparent. I beg to move.

On Question, amendment agreed to.

Schedule 4 [The Police Complaints Authority]:

Baroness Trumpington

moved Amendments Nos. 182A to 182H: Page 111, line 3, leave out ("office under this Schedule") and Insert ("an office to which he is appointed under paragraph 1(2), (3) or (6) above"). Page 111, line 5, leave out ("as a member of the Authority") and insert ("to such an office"). Page 111, line 7, leave out ("an office held under this Schedule") and insert ("such an office"). Page 111, line 10, leave out ("office as a member") and insert ("such an office"). Page 111, line 21, leave out ("members of the Authority") and insert ("persons appointed to office under paragraph 1(2), (3) or (6) above"). Page 111, line 23, leave out ("be a member of the Authority") and insert ("hold such an office"). Page 111, line 43, leave out ("becomes a member of the Authority") and insert ("is appointed to an office under paragraph 1(2), (3) or (6) above"). Page 111, line 44, leave out ("as a member") and insert ("in that office").

The noble Baroness said: My Lords, I beg to move Amendments Nos. 182A, 182B, 182C, 182D, 182E, 182F, 182G and 182H en bloc. The purpose of these amendments is to make good a procedural gap in the Bill. At present it contains provision for the chairman of the Police Complaints Authority to be appointed, but it contains no provision for him to serve either a specified term or for him to be removed under any circumstances. Hence these amendments make the chairman's terms of appointment and the means of his removal equivalent to those of other members of the authority. I beg to move.

On Question, amendments agreed to.

Schedule 5 [Serious Arrestable Offences]:

12.5 a.m.

Baroness Trumpington

moved Amendment No. 183: Page 114, line 15, at end insert (" . Treason."). The noble Baroness said: My Lords, in Committee there was general support for the proposal by the noble Lord, Lord Monson, that causing death by reckless driving should be added to Schedule 5 notwithstanding that any arrestable offence which leads to death is already covered by Clause 113(6)(c). There was also general support for the proposal by the noble Lord, Lord Gisborough, that treason too should be added notwithstanding Clause 113(6)(a). These amendments reflect the views of your Lordships in Committee and I commend them to you accordingly.

Lord Monson

My Lords, as we seem to be speaking to both amendments, may I say how grateful I am to the Government for having accepted the spirit of my Committee stage amendment and rephrased it in the correct form? I should like to think that the great majority of people in this country will also be grateful, and particularly the parents of young children, who are most at risk from reckless drivers. It this amendment deters even a few such people it will have been worth while.

On Question, amendment agreed to.

[Amendment No. 184 not moved.]

Baroness Trumpington

moved Amendment No. 185: Page 115, line 1, at end insert— ("Road Traffic Act 1972 (c. 20) 5A. Section 1 (causing death by reckless driving).")

The noble Baroness said: My Lords, I should have said that I was speaking to Amendment No. 185. I beg to move.

On Question, amendment agreed to.

Schedule 6 [Consequential amendments]:

Lord Stanley of Alderley

moved Amendment No. 185A: Page 116, line 14, at end insert— ("Dogs (Protection of Livestock) Act 1953 (c. 28) In the Dogs (Protection of Livestock) Act 1953 the following section shall be inserted after section 2— 2A.—(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

1. (a) that a dog has worried livestock within the meaning of section 1 above; and
2. (b) that that dog is on the premises specified in the application; and
3. (c) that any of the conditions specified in subsection (2) below applies,

he may issue a warrant authorising a constable to enter and search the premises for the purpose of examining the dog in question. (2) The conditions mentioned in subsection (1)(c) above are—

1. (a) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them;
2. (b) that entry to the premises will not be granted unless a warrant is produced.".")

The noble Lord said: My Lords, the purpose of this amendment is to allow a police officer to obtain a warrant to enter premises to search for a dog that is believed to have worried livestock. I shall not bore your Lordships by repeating the reasons. They were explained at Committee stage not just by me but by my noble friend Lord Gibson-Watt, and the noble Lords, Lord Elystan-Morgan and Lord Hooson, and of course prayed for by the noble and learned Lord, Lord Elwyn-Jones.

I must however answer the queries raised by my noble friend Lord Elton during that debate. First, my noble friend asked in col. 1026 whether this power would assist in tackling the problem, and in col. 1027 whether it would enable the police to bring more cases to court. My answer is, yes, but of more importance is the view of the Police Superintendents' Association of England and Wales, whose national secretary states in a letter to the National Farmers' Union dated 26th July: It is my view, and that of this Association, that the ability to obtain a warrant to search premises for an offending dog would be an advantage although probably the number of cases where such a power would be used would be limited.

Secondly, my noble friend Lord Elton asked me in col. 1027 to produce evidence of when this power contained in this amendment could have helped. My noble friend's smallest wish of course is my command, and I hope he will agree that the material submitted to him and to my right honourable friend the Minister of State at the Home Office and to my right honourable friend the Secretary of State for Wales by the National Farmers' Union and others has supplied this evidence.

Some of your Lordships may have received copies of some of the letters written to my noble friend. I hope that your Lordships will not ask me to read them all, because we should not get home this morning. My amendment will not solve the problem of livestock worrying. For that I await the White Paper of my right honourable friend the Secretary of State on dog licensing, but acceptance of this amendment will show that the Government really accept that livestock worrying by dogs is a serious and cruel matter. I beg to move.

Lord Elton

My Lords, I remember clearly our exchanges in Committee, and I undertook to consider any fresh evidence which might change our view, which was not in favour of my noble friend's amendment at that stage. Through the good offices of my noble friend and the National Farmers' Union we have now been able to consider various instances of livestock worrying where such a power might have been of value. I do not think that the availability of this power is going to solve this serious problem any more than my noble friend does, but we believe that it may offer some relief. We do not expect that relief to be very dramatic and we do not, therefore, expect the police to devote more of their scarce resources to this problem as the result of any grant of such power.

I am content, entirely as a result of the intervention of my noble friend and the NFU, to undertake to bring in an amendment at Third Reading that will provide a power of entry. The main benefit we expect to flow from this is a chance for the police to identify the miscreant animal and I cannot promise to provide for an extension of that power to include a power that went wider than that. But I do now think that this important right of entry may be of some assistance in combating the terrible scourge which some dogs have become to some flocks.

Success in these cases may bring home to owners of other dogs with similar vices that they must keep them under control and, indeed, bring home to still other people, by the example of successful prosecutions, that even the most docile and domestic animal can rapidly acquire a taste for running sheep if he is given the chance to do so. I hope that my noble friend will find this a useful concession and that some sheep farmers at least will, as a result, be spared the harrowing experience of having their in-lamb ewes hounded as mine once were many years ago.

Lord Elystan-Morgan

My Lords, we on these Benches greatly welcome the change of heart on the part of the Government. We believed on an earlier occasion that this was a necessary provision and I am sure that all who live in the countryside will feel that it is a very proper step for the Government to take.

Lord Stanley of Alderley

My Lords, I am delighted that the Government have accepted the seriousness of livestock worrying—in the words of my noble friend: the terrible scourge of some dogs to some flocks. If I may, I will make one ungracious remark and that is that I hope my noble friend Lord Elton will make quite sure that his right honourable friend the Secretary of State for the Environment places a similarly high priority on this cruel problem and that he will take the same line as my noble friend when he comes to future dog licensing.

I have reason to believe that many of your Lordships will agree with me that a ready identification of all dogs throughout the country is an essential part of any future legislation and control of the unhappy stray dog. I accept my noble friend's concern about the inspection of dogs by a police officer and putting extra work on the police force. My hope is that the White Paper will take day-to-day dog policing work away from the police. They have much better things to do. I believe that at the end of the day, in awkward cases, the police may have to be called in. I entirely accept my noble friend's point: I do not expect police officers to undertake stomach pumping of dogs to find out whether or not they have eaten a sheep.

I am extremely grateful to all noble Lords who have obtained this concession for me, but I am particularly grateful to my noble friend Lord Elton who has promised to bring forward an amendment at Third Reading. I hope that your Lordships will not think that I am over-icing the cake when I say that the trouble that the Government—and my noble friend on the Front Bench in particular—have taken over this minor amendment, in a Bill which has very much more important implications, reflects much credit on all concerned. In those terms, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Trumpington

moved Amendment No. 186: Page 117, line 13, at end insert— (" Theatres Act, 1968 (c. 54) 14A. In section 15(1) of the Theatres Act 1968 (powers of entry and inspection) for the words "fourteen days" there shall be substituted the words "one month".")

The noble Baroness said: My Lords, I speak also to Amendment No. 188: Amendment No. 188: Page 125, leave out lines 6 to 8. Page 125, leave out lines 6 to 8. There is a case for establishing as much consistency as possible between search warrant provisions. These amendments ensure that the 1968 Act warrants will be valid for as long as all search warrants. I beg to move.

On Question, amendment agreed to.

Schedule 7 [Repeals]:

Baroness Trumpington

moved Amendments Nos. 187 and 188: Amendments Nos. 187 and 188:

[Printed earlier: col. 768 and above.]

The noble Baroness said: My Lords, my noble friend the Minister spoke to Amendment No. 187 with Amendment No. 181. I spoke to Amendment No. 188 with Amendment No. 186. I beg to move.

On Question, amendments agreed to.

Lord Elton

moved Amendment No. 189: Page 125, line 27, after ("words"") insert ("at any time or times").

The noble Lord said: My Lords, I should like to speak also to Amendment No. 190: Amendment No. 190: Page 125, line 37, after ("words" ") insert ("at any time"). The entries in Schedule 7 relating to the Immigration Act 1971 and the Lotteries and Amusements Act 1976 repeal provisions which specify the period of validity of search warrants under the two Acts. Unfortunately, the entries in Schedule 7 do not repeal enough words, so that the 1971 and 1976 Acts as amended do not make sense. These amendments to Schedule 7 cure this fault.

These are the last amendments on the Marshalled List of a very long Report stage. Perhaps I may thank your Lordships for the very great patience you have shown, particularly during the fiasco on Amendments Nos. 167 and 167A during which I mislead your Lordships into milling about to no purpose for about three minutes. Seriously, your Lordships have been extremely patient on a difficult Bill and I am grateful to you for the work you have put into it. I hope that you have a very happy Summer Recess.

Lord Elwyn-Jones

My Lords, on behalf of the Official Opposition, and perhaps permissibly on behalf of all the Opposition, I reciprocate the greetings and the good wishes of the noble Lord the Minister and his colleague. They have both been patient and frequently kind. This is the eighth or ninth day of the proceedings on this Bill. It seems so much longer. May everybody, including the occupant of the Chair and the assistants here, have a very well-deserved and happy holiday.

Lord Renton

My Lords, lest it be thought that silence on these Back Benches be regarded as a lack of appreciation, may I make the comment that it has been said that genius is an infinite capacity for taking pains. By that standard, my noble friend is a genius.

On Question, amendment agreed to.

Lord Elton

moved Amendment No. 190: [Printed above.]

On Question, amendment agreed to.