Lords Sitting of 26 June 1984

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

European Air Fares
Lord Gainford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when the officials appointed by the European Council of Ministers to introduce greater competition into European aviation will publish their report.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, the working party of high level representatives of the member states and the Commission is due to report to the Ministers before the end of this year. Such reports are not generally published. We hope however that the Council will quickly take decisions on the report. Any such decisions will of course be made public immediately after the Council meeting in the normal manner.
Lord Gainford: My Lords, I thank my noble friend for his Answer. Considering the fact that in a lot of people's minds is the possibility of cheaper fares in and around Europe, is there any possibility of an announcement being made of further reductions in fares from this country to destinations abroad and inside the United Kingdom as well?
Lord Trefgarne: My Lords, my noble friend will perhaps have heard the recent announcement in connection with services between the United Kingdom and the Netherlands, which is a first step in that direction. As for a wider reduction in fares in Europe, that is something we should very much favour, but it depends upon agreements being reached between the governments concerned.
Lord Underhill: My Lords, can the Minister say how many bilateral agreements permit more than one British carrier on routes in Europe? Can he explain why independent airlines in this country are expressing great concern that the privatisation of British Airways might create something like a monopoly, which will injure those airlines?
Lord Trefgarne: My Lords, I do not think that it is true that a monopoly will be created by the privatisation of British Airways, because of course there is always competition not only among British carriers on a particular route but between British carriers and other national carriers. The noble Lord was quite right when he implied in the earlier part of his supplementary question that very few of the bilateral agreements permit the operation of more than one British carrier on routes to Europe. However,
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one of the results of the recent agreement with the Netherlands will be an end to that situation so far as flights to that country are concerned. The Government very much hope that that can be achieved in connection with other countries as well.
Baroness Burton of Coventry: My Lords, does the Minister's reply to the original Question mean that we shall know only of those recommendations which are accepted by the governments? If that is the case, is it not unfortunate, and would it not be better if we knew also of those which were unacceptable and the reasons for that?
Lord Trefgarne: My Lords, the deliberations in the Council of Ministers are not normally revealed in detail; but, going on past form, I would not be surprised if a good many of the proposals which do not see the light of day become known at least to the noble Baroness.
Lord Bruce of Donington: My Lords, following on the point that the noble Lord was good enough to make about the agreement with the Netherlands, may I ask him whether he agrees that that agreement for reduced fares reveals the extent of the cartelised racket in air fares in Europe at the present time? On reflection, does he also agree that, instead of leaving this matter to his noble friend Lord Bethell to deal privately with the European Court, it might have been a good move if the initiative had come from the Government themselves?
Lord Trefgarne: My Lords, there has been no shortage of initiatives from the Government in this matter, starting when this Government came to power, and not least during the time when I had some responsibility for these matters in 1981. But the noble Lord is quite right to imply that progress in these matters has been lamentably slow. The Government very much regret that and are doing all that they can to speed things up.

Shoplifting Offences
2.41 p.m.
Lord Gridley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many offences of shoplifting were recorded in 1983 in England and Wales.
Baroness Trumpington: My Lords, the police in England and Wales recorded 236,000 offences of theft from shops in 1983.
Lord Gridley: My Lords, I thank my noble friend for that Answer. But is it not a fact that the rigid policies in force fail to distinguish between the menace of the deliberate shoplifter and, say, the confused shoplifter who may be an elderly person of pensionable status, and additionally someone who may go in for shoplifting who is mentally unstable? Has any Government policy guidance been given to authorities on these categories of people?
Baroness Trumpington: My Lords, in answer to my noble friend Lord Gridley, the Attorney-General has issued to the police guidelines on the factors to be taken into account when considering whether to prosecute. The guidelines apply to cases of alleged shoplifting, as to other offences. They set out the criteria for prosecutions applied by the Director of Public Prosecutions. The age and mental or physical health of the offender are taken into account. These points have been drawn to the attention of the associations representing the retail trade, but it must be remembered that the final decision is taken by the shop.
In answer to the second point raised by my noble friend with regard to old age pensioners and mentally confused persons, dishonesty is an essential ingredient in the crime of theft. An elderly person who absentmindedly forgets to pay for goods taken in a supermarket without intending to evade payment has a defence to a charge of theft. I would add that magistrates are well aware that theft is not always the intention. Where there is doubt, social and medical reports are sought and these can often uncover the reason behind a seemingly illogical action.
Lord Elystan-Morgan: My Lords, would the noble Baroness confirm that Her Majesty's Government have no intention at present of depriving any defendant charged with shoplifting of the right of election of trial by jury? Although the amounts involved are very often small—if not trivial—for a person of hitherto good character a conviction upon a charge of shoplifting can have very grave and weighty consequences.
Baroness Trumpington: My Lords, I confirm that the Government have no intention of taking any action other than what the noble Lord suggested.
Lord Elystan-Morgan: My Lords. thank you.
Lord Sainsbury: My Lords, may I ask the Minister this question. In view of the fact that the Metropolitan Police Commissioner has indicated his willingness to take over prosecutions for shoplifting if he is given the resources so to do, do the Government have any intention of providing those resources? Secondly, what are the Government's intentions regarding the proposals for an independent prosecution service in the White Paper, Cmnd. 9074?
Baroness Trumpington: My Lords, the second part of the noble Lord's supplementary question is another matter. If he cares to put down a Question on it I am sure that he will get an Answer.
Regarding the first part of his supplementary, the present policy of the Metropolitan Police in prosecutions for theft from shops is that stores should not be discouraged from mounting private prosecutions. In practice this means that the great bulk of shoplifting cases in London are prosecuted privately and that the police involvement is confined to the purely formal aspects of the process. Thus the position in London differs from that elsewhere in the country, though as a matter of practice some large stores in provincial cities routinely undertake private prosecutions for shop theft.
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However, there is no question of the police in London compelling the stores to undertake private prosecutions. Where a store specifically ask, the police will normally undertake the prosecution. As the noble Lord said, the commissioner has recently indicated that, as a matter of principle, he is not reluctant for the Metropolitan Police to take on the responsibility for these prosecutions. Any reservations are not of principle but are based on the very considerable resource and organisational implications for the Metropolitan Police. Discussions continue between the Home Office and the Metropolitan Police. I feel sure that in saying that to the noble Lord I am teaching my grandmother how to suck eggs.
Baroness Sharples: My Lords, can my noble friend say how many of those charged with shoplifting last year claimed diplomatic immunity?
Baroness Trumpington: My Lords, no. I cannot tell my noble friend that. Again, that is another Question.
Lord Swansea: My Lords, can my noble friend say how many of those who have been prosecuted were resident in this country and how many were overseas visitors?
Baroness Trumpington: My Lords, I think that comes under the heading of not being part of the original Question but goes in with the other question that has just been asked.

Unemployment: Women
2.46 p.m.
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will give the number of women of all ages unemployed for each year from 1979.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, the figures for unemployed female claimants of all ages in the United Kingdom were 323,800 in 1979 and 923.300 in 1984. I will, with your Lordships' permission, circulate the full information in the Official Report.
Following is the information referred to above:
The figures for unemployed female claimants of all ages in the United Kingdom in May each year from 1979 were:

1979

323,800

1980

396,400

1981

628,100

1982

737,000

1983

849,900

1984

923,300

Lord Dean of Beswick: My Lords, I am grateful to the noble Minister for that reply. Does it not indicate that, in the timescale that he has quoted,

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unemployment of women in this country has trebled? Is is not a paradox that under the first woman Prime Minister of this country more women have been made unemployed than since before the war? Taking into account that since the war women have become in many families a major factor in earning money to advance the quality of life for their families and themselves, is this not an unacceptable trend? Can the Minister tell us when this trend will be reversed?
The Earl of Gowrie: My Lords, no, I cannot say when the trend will be reversed because the Government do not accept, as the noble Lord and his party suggest, that the Government can control the overall level of unemployment in this country. I may say that the noble Lord's party. when in office, were singularly unsuccessful in putting that into effect.
There are two things that I think are encouraging. One is that women's unemployment remains considerably lower than men's—that is to say, 9.4 per cent. compared with 15.6 per cent.—and the other is that the latest MSC labour market quarterly report shows an increase in part-time employment accounting for the increase in total employment. Every 24 hours some 20,000 find jobs in the labour market. As I said in answer to a supplementary question on an earlier occasion in your Lordships' House, Britain has a very high proportion of its labour force in work.
Baroness Seear: My Lords, does the noble Minister not agree that those figures greatly understate the extent of female unemployment because a very great many women are not entitled to benefit and therefore do not register, and others have given up all hope of getting a job? Would the Minister also confirm the possibility that in view of the desirable increase in part-time employment—and we are glad to hear that it is increasing in some areas—the Government should take the lead in finding ways within the Civil Service and in encouraging ways in local authorities to employ more women on a part-time basis, particularly in basic, domiciliary services provided by local authorities, which have been cut at a time when they need to be greatly extended?
The Earl of Gowrie: My Lords, I am most interested in the noble Baroness's supplementary question. This very morning, as a Civil Service Minister, I have been working on this issue of part-time posts which, not exclusively but largely, involve women. It is not an easy issue. Many of the services required by the public need full-time workers. However, we are seeing that wherever possible we devolve jobs to people on a part-time basis.
Baroness Lockwood: My Lords, will the Minister also agree that the figures he has given are an underestimate of the number of women unemployed because such a high proportion of women are in part-time employment? Even if they were to register as unemployed, they would not be entitled to benefit because of their part-time status. Is the Minister prepared to look at this? Will the Government recognise that part-time employment must qualify for unemployment benefit?
The Earl of Gowrie: My Lords, the answer to the latter point would an unequivocal, "No". It would, in my view, be an insane thing for the Government to do. Employment is employment, and unemployment is unemployment. We are highly grateful for any employment we have at the moment in the Western economies, part-time of full-time.
Viscount St. Davids: My Lords, as the noble Earl has stated that the number of those in the workforce is increasing, particularly the number of women, would it not be of interest if, besides giving the number of women unemployed at various dates, he also gave, in order to compare them similar figures for women who have obtained jobs during that period?
The Earl of Gowrie: My Lords, not for the first time I am grateful for the perceptions about the very fundamental and, in my judgment, permanent changes that have taken place in the labour market, which have been drawn to the attention of the House by the noble Viscount. In fact, there is no evidence that women are suffering disproportionately from the problem that affects everyone. The employment figures show that in June 1983 the number of men in work was 88 per cent. of the number working in June 1979. The corresponding figure for women working full time—this includes the part-time issue—was 90 per cent., while the number working part-time has actually increased in real terms. While that is of no satisfaction to women who are seeking jobs and who are not able to find them, the overall picture is not as gloomy as the Question suggests.
Baroness Lockwood: My Lords, I wonder whether the Minister misunderstood my question. The point I was making was to ask whether the Government are prepared to recognise that women who have been working part-time and have become unemployed are, as unemployed, entitled to a benefit even if they are prepared to take up only part-time employment if part-time employment is available.
The Earl of Gowrie: My Lords, I am grateful to the noble Baroness for her point of clarification. It is a little wide of the original Question. I shall look at it and let her know.
Lord Dean of Beswick: My Lords, while taking account of the points that the Minister has made in reply to various questions, may I ask him whether he is aware that, as a result of the economic situation and of unemployment among men, in innumerable households the woman has become the breadwinner? Despite the figures that he has given, the number of women becoming unemployed is increasing substantially. Does he not appreciate that where this happens and the woman who is the breadwinner is made unemployed, we are creating on a still increasing scale families of despair? When is this going to alter?
The Earl of Gowrie: My Lords, I have two points to make about this. The first is the statistical one. I am aware of the aridity of statistics in relation to individual suffering. However, from this Dispatch Box one has to look at the picture overall. There is no statistical

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evidence that women are suffering disproportionately. In fact, on balance, they have done a little better than men. That, as I say, is no consolation for those seeking work and unable to find it.
The other point is that the vast majority of people are in work. Those people who are in work, if they really care about unemployment, must look to their own condition and their own good fortune in terms of wage demands and the rest if their concern for those who are out of work is to be meaningful.
The Earl of Lauderdale: My Lords, will my noble friend not agree that the current very sad coal strike threatens employment in many parts of the economy through the blockage of supplies to power stations and steelworks, and that it is therefore incumbent on everyone to try to get a solution to it?
The Earl of Gowrie: My Lords, I agree wholly with my noble friend. There are knock-on effects for people working in traditional areas of female employment. The fact is that, each day the coal strike continues, jobs go out of the economy, not simply for the duration of the coal strike but permanently.
Lord Cledwyn of Penrhos: My Lords, the noble Earl has answered questions very skilfully. Is it nonetheless true that female unemployment has increased more quickly than male unemployment since 1979? Is it not the case that well over 3 million men and women are out of work at present? Will the noble Earl be good enough to tell the House, coal strike or no coal strike, what positive and constructive steps the Government are taking to alleviate the serious employment problem?
The Earl of Gowrie: My Lords, as I have said on many occasions, the only way in which any Government can create permanent sustainable employment is for this country to become more competitive both internationally and domestically. It is to that end that the Government's policies are precisely directed. Anything else would be purely short term, as the record of the Labour Government demonstrates.
Lord Jacques: My Lords, will the Minister bear in mind that there is a contrary view? There are certain things that need doing in this country, and it is better to do them when we have people unemployed than when we have full employment.
The Earl of Gowrie: My Lords, I would be the first to agree that much needs to be done in this country. Usually, at this point in questions about unemployment, there are suggestions that the Government should put more money into capital expenditure. However, in relation to the original Question on the Order Paper, there are very few female jobs in most large-scale capital construction projects.
Baroness Seear: My Lords, is the Minister not a Minister in a department that is trying to encourage women into non-traditional jobs?
The Earl of Gowrie: My Lords, yes. We are trying to encourage people to get the basic training to allow them to have a far wider series of choices than did their predecessors. That, as I think the noble Baroness will be aware, is a general and encouraging trend in the economy. Young men and women have a greater range of choice if they get such training. That is why training is so important.
Lord Leatherland: My Lords, does the Minister not think that it would be good idea for the Government to promote a campaign in favour of marriage, and then the men could keep them?
The Earl of Gowrie: My Lords, I am not quite clear of the point that the noble Lord, Lord Leatherland, is making. Sometimes, from that corner of the House, there come suggestions that the overall employment picture would be better if women did not go out to work. That is the view that I have consistently and from personal experience resisted.
Baroness Ewart-Biggs: My Lords, will the Minister say whether there are any opportunities for job-sharing among women? Many must be well situated in terms of family responsibilities to take up any such opportunity.
The Earl of Gowrie: My Lords, when I was a Minister at the Department of Employment I looked carefully at opportunities for job-sharing. They exist, and as a Minister in the Civil Service, I have tried to encourage them. I am afraid that job-sharing can only help, probably, at the margin. It might interest the noble Baroness to know that the overwhelming number of new jobs being created in the American economy are through very small businesses and through the franchising to small businesses of business arrangements created by larger businesses. It seems to me that this is a most profitable and encouraging direction, which we should follow.

British Rail: Wage Negotiations
3 p.m.
Lord Taylor of Gryfe: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will state what directives they gave to the British Rail Board in recent negotiations with the trade unions and whether this represents a departure from the Government's declared policy of nonintervention in the management of nationalised industries.
Lord Lucas of Chilworth: My Lords, the wage negotiations were the responsibility of the British Railways Board. Naturally, the chairman kept my right honourable friend the Secretary of State for Transport informed of the progress of the negotiations and, in his turn, my right honourable friend kept his colleagues informed. This is because the Government need to know—and if necessary to comment on—the implications of wage negotiations for the finances of

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the nationalised industries, for the taxpayer and for the public interest. On the recent pay settlement, the Government were content with the Board's proposals. There were no directives to British Rail and there was no departure from the Government's normal practice.
Lord Taylor of Gryfe: My Lords, I should like to ask the Minister if he will confirm that a letter was sent from the Prime Minister's office to his department, which stated:
"British Rail should increase its pay offer to keep negotiations in play",
and that the Department of Transport, quite rightly, made its views known to the chairman of British Rail. In the light of this precedent, would the Minister now state whether they are prepared to suggest to the British Rail Board that it proceed under civil law to prevent the railway unions disrupting coal and iron-ore supplies at Llanwern and also at Ravenscraig?
Lord Lucas of Chilworth: My Lords, so far as the first supplementary of the noble Lord, Lord Taylor of Gryfe, is concerned, I would say that certainly there was an exchange of letters, and this would not be unusual between Ministers who have overlapping responsibilities in these matters. I feel that the noble Lord's second supplementary is somewhat wide of the original Question.
Lord Underhill: My Lords, is it not a fact that the letter to which the noble Lord, Lord Taylor of Gryfe, referred has not been denied? Is the Minister also aware that a Written Question was asked of the Secretary of State for Transport, as to whether he had discussed wage levels in the railway industry with the chairman of British Rail? On 9th April, in a Written Answer, the Secretary of State said that wage levels in British Rail are for negotiation between the British Railways Board and the unions. Yet the letters to which we are referring were on 2nd April. This Written Answer was on 9th April. Has the Minister any suggestion of a permitted parliamentary terminological expression to explain that sort of conduct?
Lord Lucas of Chilworth: My Lords, I should hope that all of us, in all quarters of the House, would deplore and condemn the theft of documents and any breach of confidence between Ministers and their officials. Those who leak papers such as those to which the noble Lord refers must accept that they damage the reputation of the entire Civil Service and betray. the trust they owe the Government.
In reply to the earlier part of the question by the noble Lord, Lord Underhill, it would be strange indeed—would it not?—if Ministers in charge of nationalised industries did not discuss with the nationalised industries' chairmen various matters of common interest. Of course that interest would include wages and wage settlements. But I repeat: there was no direction whatsoever from my right honourable friend the Secretary of State for Transport to the British Railways Board with regard to the negotiations to which the noble Lord has referred.
Lord Jacques: My Lords, is the Minister aware that if the Government were quite candid and said, "We represent the owners of these industries, and, when intervention is necessary, we will intervene", there would be no need for any breach of loyalty?
Lord Lucas of Chilworth: My Lords, the noble Lord, Lord Jacques, suggests in his question something which is slightly misleading. He will recognise, and I am sure all noble Lords will recognise, that Her Majesty's Government are accountable to Parliament for the nationalised industries. It stands to reason that they must provide those industries with a broad framework within which to work, and that means discussing with them the implications of wider Government policies.
Lord Teviot: My Lords, in returning to this Question, I should like to ask if it is not a fact that last October the Government set the chairman a clear and achievable set of objectives for all its businesses? Is it not a fact that the Government have accepted in full the grant claim for £837 million submitted by British Railways for grant in 1984? We have not heard very much from noble Lords opposite about that fact.
Lord Lucas of Chilworth: My Lords, certainly on 24th October last my right honourable friend the Secretary of State set out objectives for British Rail. Those objectives were accepted by the chairman, Mr. Bob Reid. I confirm the figure that my noble friend has quoted. I should add that the Government have also approved £134; million-worth of investment in British Rail since last October, since those objectives were set down.
Lord Ezra: My Lords, would the Minister not agree that there is growing uncertainty in the public mind about the relations of government with nationalised industries, and that the time has come when this situation should be clarified in the form of a White Paper or by other means, as previous governments have done?
Lord Lucas of Chilworth: My Lords, I am afraid that I do not agree with the noble Lord, Lord Ezra. I do not think there is any confusion in the mind of the public. I have stated quite clearly, and on other occasions noble friends alongside me have stated, the relationship between government and the nationalised industries. I should have thought that the noble Lord, Lord Ezra, himself, would have full knowledge of what are those kind of relationships.
The Lord Bishop of Peterborough: My Lords, would the Minister thank me if I suggested that his reply might be on the lines that, if there is a possible chance of putting the tiniest bit of sense into the heads of the managements of these nationalised industries, and the unions, there is no reason in divinity, morals or politics why the Government should not have a go at it?
Lord Lucas of Chilworth: My Lords, I think I should thank the right reverend Prelate for his comments
Viscount St. Davids: My Lords, will the noble Lord comment on the remarks being made about the duty of the Government to interfere in nationalised industries, on the basis that they own them? Will he agree that what has been going on is that the Government have been interfering much too much in the nationalised industries, and that this is the cause of most of their present troubles? Is it not one of the very good reasons why we should denationalise these industries so as to keep the Government's fingers out of them?
The Lord President of the Council (Viscount Whitelaw): My Lords, I think the answer to the noble Viscount is, not this afternoon. It is 31 minutes since we started Questions, and the noble Viscount's point is rather wide of the original Question. Perhaps he would come back to it another day.

Business
The Earl of Swinton: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Police and Criminal Evidence Bill will be adjourned for dinner at approximately 7.30 p.m. for a little over an hour. During this adjournment the Committee stage of the Trade Union Bill will be completed.

Police and Criminal Evidence Bill
3.8 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Elton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Power of constable to stop and search persons, vehicles etc.]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 1:
Page 1, line 7, after ("constable") insert ("in uniform").
The noble and learned Lord said: Clause 1 of the Bill, as your Lordships will see, gives power to a police constable to stop and search any person in any public place—other places are mentioned as well—for stolen or prohibited articles if he has reasonable grounds for suspecting that he will find such articles. The clause does not require the constable to be in uniform. The amendment that I move proposes that he should be in uniform.
The powers that are given to the police to stop and search the citizen are considerable, and the statistics for their enforcement show that last year, in London alone, there were over a million stops and searches. If that were projected through the country as a whole one would see the wide extent of this activity affecting millions of our fellow subjects.
The vast majority of those suspected will have shown themselves to be wholly innocent. One of the difficulties is that if the person concerned is young or part of the minority of coloured people, he will be liable to be searched more often than the average citizen. So here is a power which is liable to bring the police certainly—putting it neutrally—into contact with the ordinary citizen, and, as we submit (and it is the purpose of the amendment to avoid this), into a state of conflict through misunderstanding with the ordinary citizen because it would involve a plainclothes officer in a coat approaching at night a citizen on his lawful passage, stopping him, interfering with his liberty of free passage and producing an immediate state of potential confrontation.
In such a situation the fact that the officer was in uniform would immediately indicate to the passer-by the rightness of the police in stopping and questioning him. But the danger of this being done by the plain clothes policeman is first to create the possibility of conflict and at the very least to produce a state of apprehension. Alas! there is a good deal of mugging going on in our cities. There is plenty of aggravation in our society already without adding to it unnecessarily as we believe this power given to the plain clothes policeman to stop and search the subject is liable to do.
Identification of the person stopping the citizen on his lawful passage is of vital importance. It is essential that we must avoid confrontation between police and public as much as possible. We believe that this amendment, if approved, would be in the interests not only of the public but of the police themselves.
In our view the coercive power that is given to the police to interfere with the liberty of the subject should only be exercised by a constable who has an overt manifestation of his office—that is to say, his uniform and the number by which he can be identified. Our objection to what is proposed is first one of principle. We believe that if the police are given coercive powers, as they are in this clause, it is essential that those powers should be exercised only by officers clothed in uniform, thereby showing the authority that they lawfully possess.
It is very interesting that the Royal Commission reported on this matter in paragraph 3.22 of their report and said:
"We considered whether the power to stop and search persons should be available only to a constable in uniform, and one of us favours this. Clear identification as a police constable is necessary to avoid misunderstanding, friction, and, later, disputes".
It is right that I should continue to read. It goes on:
"We accept this as a principle"—
and that we assert as a matter of importance—
"but do not believe the wearing of uniform essential to its attainment in practice. The police officer should take the necessary steps to ensure that the person whom he has stopped has his name and number".
and no doubt the Minister will refer us (as I willingly do) to Clause 2(2)(ii) which requires the constable so to inform the citizen who is stopped. That would be too late a step to take for the avoidance of confrontation. The immediate reaction is the important one to consider.
I go from the argument of principle, which the Royal Commission approved, to the argument of practicality. There is a danger that if you extend the power to stop and search to a constable not in uniform, that situation could well be exploited by someone masquerading as a plain clothes policeman. Indeed, there have been a number of such cases. The masquerader might be a robber or a miscreant of some other character. If the existence of plain clothes policemen were to be known, the citizen might initially be taken in and the first seconds in which he decides whether to resist or to run away could be very crucial for the citizen in that situation. Therefore, that is the practical objection to what is proposed. If the constable has to be in uniform there would be no room for the masquerade to succeed or for the misunderstanding to arise.
The vast majority of these stops and searches result, in practice, in a total failure of successful apprehension in any event. We believe that here we are in the presence of giving the police a power which, instead of giving them strength and authority, will give them nothing but room for danger in their relationship with the public. It has been said many times already during the Second Reading of the Bill that what is essential to fight the losing battle against crime (which has grown greatly in recent years) is total confidence between the police and the public; what is proposed in the Bill might well seriously undermine that confidence. I beg to move.
3.18 p.m.
Lord Hutchinson of Lullington: I should like to support the amendment. I suggest that it is an important amendment, perhaps one of the most important amendments which have been put forward to the Bill. Your Lordships will appreciate that the extent of the power which is being given to the police in Part I of the Bill is very great indeed. I imagine that the purpose of this amendment is to limit that power. The argument will no doubt be put forward by the noble Minister that this power has already been wielded by the Metropolitan Police Force and other police forces in certain municipal areas for very many years. I am anxious that the Committee should appreciate that in my submission that is simply not so.
The purpose of this power, which was originally granted right back at the beginning of the 19th century in 1839 under the Metropolitan Police Act, was to deal with goods in transit at a time when your Lordships will appreciate that London and other big cities were a prey to vagabonds, rogues, thieves, and so on, who were moving around. As a result there were the Peel reforms and the police force was created. The whole purpose of the original Act under which this power arose was—to use the words of the original Act—that:
"any person reasonably suspected of having or conveying in any manner any stolen or unlawfully obtained goods"
could be stopped and searched by a police officer. But it did not create any offence at all. It went hand in hand with another section in the Act, which was to bring that person before the magistrates the next day. That person then had to give an account to the magistrates and justify his possession of the property found on him, guilty or innocent as that person might be. It was
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only then that an offence arose. The onus was on the person to give an explanation in regard to the property.
That was the origin of this power. It had absolutely nothing whatever to do with stopping people in the street, as it is now used—stopping young people in the streets or blacks in Brixton—to see whether they have anything on them which may be stolen, and so on. Of course, the second part of the Act which I quoted was repealed in the 1970s because it put the onus on the defendant to prove the point, which was of course entirely against modern thinking.
But this particular section was not repealed. As is perfectly clear from the PSI report, and from many other reports—and as is now universally acknowledged—its use has been entirely abused in the Metropolitan district. As is made perfectly clear in the PSI report, over and over again in the majority of cases the police do not have any reasonable suspicion whatever. In fact, they act on a hunch; they act on the appearance of the person they stop; they act bearing in mind the area in which the person is found.
There is no doubt—is there?—that this section of the Act gives rise to more problems, more harassment and more fear among the young in the big cities than any other single piece of legislation. I submit to the Committee that it is of crucial importance that this power is limited in some way. As has already been said by the noble and learned Lord, Lord Elwyn-Jones, as the power deals with street offences, it should be the officer in the street who deals with the matter. Surely that is the first way in which to limit the power: the officer in uniform should deal with the matter.
In addition to what has already been said, if this power is given to plain clothes officers, to detective officers, abuse would be too easy for words. What also arises from these researches is that the great majority of stops and searches are not reported at all. There is no reason to report them. In this Bill there are provisions for reporting, for recording and for telling the person stopped various things. But unfortunately the whole experience of dealing with this matter shows that it is the simplest thing in the world either to avoid reporting a stop or telling the person stopped what he ought to be told and giving an ex post facto account when you return to the police station to record what happened. It happens over and over again.
If plain clothes officers are involved in this, it would be the easiest thing in the world to continue the abuse which has followed over the years and which gave rise to the abolition of the suspected person legislation. If one is in plain clothes, one can stop someone and effect the search, and so on. One can give any information one likes because it is completely untraceable; there is no way of confirming that one is from a particular police station. The great thing about limiting this power to the uniformed officer is that the person stopped can see the number on the officer's uniform and will be able to take up the matter. The suspected person legislation gave rise to exactly the same problem which I would suggest will arise over this matter. Under the suspected person legislation the officer had to establish that the person concerned became a suspected person loitering with intent to commit some offence, and the suspicion was simply in the mind of the police officer. Therefore, many hours

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were spent in magistrates' courts, and so on, dealing with the question whether or not the suspicion was justified.
If this power is left to plain clothes officers, I suggest that exactly the same problem will arise all over again, and that all the trouble which arose under the suspected person legislation will arise again; whereas, if this power is limited to the uniformed officer, at least we shall have gone quite a long way to control the situation. These are enormous powers and I hope that the Committee appreciates how broad they are and how much broader they are than the powers under the original Metropolitan Police Act. Under this part of the Bill it will now be possible to stop and search people for all matters which are set out in the Bill, including the possibility of possessing an offensive weapon. If there is to be some limitation, this surely is the clear and obvious way of limiting that power.
Lord Inglewood: It seems to me that we have revealed a principle in the very first few words of this very long Bill. It reveals the nature of the power which, under the Bill a constable is empowered to wield—a power that can be in the hands of the youngest constable the very first hour of his service after he has been sworn in. I give general support to this clause, and without doubt I think that we should have some power (such as we are now considering) which is now made uniform throughout the whole of England. The recent situation has been very unsatisfactory where a similar power has existed in London, on Merseyside and in certain other areas.
However, in looking at this Bill, I am not sure that we have sufficient clear words to show what is intended. The amendment says that a constable, in order to be identified, shall be a constable "in uniform". But it does not say what papers he should carry, whether he must show his warrant card and what happens if he has left it at home. Yet on the other hand he may find himself in a position where he ought to take action because he has seen something suspicious.
When we talk of police constables we are concerned mainly, with the members of the police forces which generally come under the Home Office but there are other larger and smaller forces in this country. Are we satisfied—and no doubt the Minister will tell us—whether more words should be inserted in the Bill or whether we have enough to make the meaning clear! We have the Ministry of Defence Constabulary and the Royal Parks Constabulary. We even have a much smaller force in Kew, which I believe is a separate force—I am not sure about the Customs and Excise—and we have the British Transport Police and the Prison Service. How many of these constables fall within the provisions in the Bill?
I do not want to split hairs but we ought to satisfy ourselves generally that the language is what we need. I am very interested in the role of the constable and his duties, which will come up for discussion from time to time as we proceed through the Bill. However, I should like to think that we ought not go any further without being given a clearer idea of who are these constables. They are not referred to as "police constables" in the
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Bill. They are referred to simply as naked "constables". Now they are not to be naked, but they are to be clothed in uniform. The Bill does not even say that they need any identity papers or whether they need to belong to a service which is the direct responsibility of the Secretary of State for the Home Department.
Lord Plant: During the Second Reading I made it clear that I endeavoured to speak on behalf of the Police Federation. I have discussed this amendment with the three police organisations, and they are bitterly opposed to it. If a detective, a CID man, is not in uniform he will not be able to stop and search if this amendment is carried. I think that is stupid. I know that many libertarians are opposed to some things that this Bill does in relation to stop and search. But whose side are we on? Is it the side of the police, the public or the criminal? We must be clear at the outset whose side we are on.
It is not in the interests of the public to agree to this amendment. I believe that it is in the interests of the criminal. I do not think there is any conflict, or any apprehension on the part of the law-abiding members of this country. The two speeches we have heard from this side have not convinced me at all of the need for this amendment. The Royal Commission did not come down in favour of an outright recommendation. Certainly it discussed this issue.
What you are attempting to do here is to see that 15 per cent. of the police force whose job it is to detect crime, the CID, shall not have the powers to detect crime; that is, to stop and search. You are going to handcuff the most effective detecting force that you have. Why are you going to handicap them? It is only the criminal who is going to benefit. These are the men who are detecting crime, and you are going to say that 15 per cent. of the police force shall not have the right to stop and search. It is one of their main jobs. I shall not go into detail about the prosecutions that have followed from stop and search by CID men. The figure is high. The Bill provides elsewhere sufficient safeguards for the individual for us to have no fears whatsoever about this first line of the Bill remaining intact.
Lord Mishcon: The noble Lord—
Noble Lords: Lord Denning!
Lord Mishcon: I am so sorry. I defer at once to the noble and learned Lord.
3.33 p.m.
Lord Denning: This is an important amendment. At common law there was no right in a constable, or anyone else, to stop and search a person or a vehicle. It was introduced in the metropolis and in other great cities by statute. Now fortunately the power is to be regulated by this statute and made clear for all. What form should it take? Quite clearly it is right that the constable should be in uniform, because when the man is stopped and searched he then knows at once that it is done under proper authority.
But imagine the feelings of an innocent person when he is accosted, and maybe accosted by an individual in

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plain clothes. He is stopped, and it is said, "I want to search you". Clearly there would be the greatest resentment at once unless there is some safeguard and abuse can be controlled. This Bill suggests a way. It suggests that the police constable must produce his warrant card, he must explain his suspicions and why he wants to search the vehicle, and he has to make a record at once of what he has found, and the man is entitled to a copy of it. The whole question is whether those safeguards in the Bill are sufficient.
My mind has wavered to and fro even as the arguments have gone on in this Committee. But on the whole I think that I would not favour the amendment. On the whole, the safeguards which are provided later in the Bill by the individual having to justify himself, to produce his warrant card, and before he searches or anything to give his explanation of what it is he wants, are just sufficient safeguards to warrant the Bill going forward as it is without this amendment.
Baroness Gaitskell: I should like to know how the policeman who stops and searches knows that he is searching for something? Will anybody tell me what the policeman knows that makes him stop and search a person suddenly in this way? It seems to me that there is something wrong about that, too.
Lord Mishcon: May I say at once that I was so happy that I deferred, as I always would, to the noble and learned Lord, Lord Denning, so that he could make his contribution to the Committee. My only wish is that I might have interrupted the speech before the last sentence while he was still wavering, and hope that something that I might say might make him waver on the right side in favour of the amendment.
I really rise in order to deal with the point made by the noble Lord, Lord Plant, so that at least when we conduct these debates we know precisely where we are. If I may say so—and I say this, I am sure, with the concurrence of my noble and learned friend Lord Elwyn-Jones, and my noble friend Lord ElystanMorgan—the noble Lord, Lord Plant, asked: whose side are we on? I can tell him frankly from the Opposition that we are on the side of law and order, and we shall maintain that position throughout this Bill.
At the same time as being on the side of law and order we are also on the side of other things. One of the principles that we shall be defending and protecting is the rights of the citizen, and I am talking about the innocent citizen, and I am talking about the citizen who has been charged but not yet found guilty. But the main thing that we are on the side of is the proper relationship between the community, with all its multifarious parts in this country, and the police. The one aspect that has been emphasised time and time again throughout this House is that the police need the co-operation and the confidence of the community; and the community need to have complete and absolute confidence in their police.
There will be no criticism on this side of the Committee of the police force as a whole. There may be doubts because every single organisation, any one that you can think of—if I may say with deference even your Lordships' House—has its good members and bad members, and that applies to the police force.
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The one point that my noble and learned friend made abundantly clear in the way he moved this amendment was the limitation upon the confidence that the community might have in the police force even if you have a half safeguard of somebody making a record afterwards—and the provisions of the Bill do not make it necessary on all occasions that the record is made at the time—and one also has to imagine the atmosphere in which this is conducted.
If I may say so, one has to imagine one of your Lordships in this position—not some horrible criminal, but a perfectly innocent person—and an officious policeman coming up, not in uniform, and asking you, "Please, I am now going to stop and search you for certain reasons". You are outside Harrods, right in the middle of Knightsbridge, and this is being done in the view of goodness knows how many people who may well indeed recognise one of your Lordships, and done by somebody in plain clothes. It is something that all of us have to think about as carefully as the noble and learned Lord, Lord Denning, was thinking in regard to this amendment. I hope that the contribution I have made, small though it is, makes him and others of your Lordships feel that if there is any doubt it ought to be in favour of the amendment.
Baroness Macleod of Borve: I shall be brief because I am not well versed in the law: I am only a common citizen who might be stopped. I would prefer to be stopped by an officer in uniform. An officer in uniform carries more weight and much more authority—not perhaps to somebody of my great age, but I am thinking specifically of the young. They need to have confidence in the people who might in the future stop and search them. It is important that the young person involved should be able to see the number and know, because of the uniform, that there was a perfect right to stop and search them. That is followed by confidence, and in turn will be followed by communication between the two. That will do both sides a very great deal of good, and I would be with the movers of the amendment.
Lord Gifford: The experience that I have had indicates that this question of plain clothes officers intervening to stop and search or to arrest people in the street is productive of an enormous amount of misunderstanding and conflict. It is not easy immediately to make oneself known convincingly as a policeman. One can produce, or flash, a warrant card. One may or may not be believed, and may or may not be understood. It is not just the person who is the object of the stop who may fear that he is being stopped, not by an officer of the law but by one or, as it often is, two or three people who are out for no good at all, who are footpads or thugs: it is other people'who may pass by.
I recall one case where a schoolmaster saw three of his pupils, young boys of 14 and 15 years, apparently being accosted by three rough-looking types who looked for all the world like members of the National Front. Police officers in plain clothes quite deliberately dress to be inconspicuous; not to appear to be officers of the law, but to merge with the general rough appearance of the area they are policing. In that case gross misunderstanding took place leading to arrests,

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prosecutions and eventually to payment of compensation to this schoolmaster who had quite genuinely thought that his pupils needed protection from thugs.
Of course, plain clothes officers in the course of their duties will come across situations where they suspect that crimes are being committed. They will see people stealing, or with weapons. Nothing in the amendment takes away the right of an officer in plain clothes to make an arrest. But this clause deals not so much with the making of an arrest as with the prevention of crime.
Officers patrolling and using their powers to stop crime before it is committed—that is, those involved in the prevention of crime, using their powers to stop people carrying offensive weapons or prohibited articles—ought to be conspicuous and ought to be in uniform. If the power to stop and search is not limited in this way, I fear that it will be productive of frequent conflict, let alone abuse.
Lord Auckland: I intervene in the debate as a mere member of the general public who is not a lawyer and is not versed in the law. It seems to me that the amendment hinges on the use of the word "constable". In the armed services a member of the Royal Corps of Military Police has, as I understand it, to be in uniform himself or herself if an arrest of a serving soldier is made. That is one corollary.
It is clear that if the officer concerned is of the rank of sergeant or below, he should be in uniform. It commands very much more authority. Of course, the most important aspect of the whole matter is that a warrant card is carried. If no warrant card is carried the arrest cannot be valid.
There is one point here. If an off-duty policeman, who clearly will not be in uniform, sees a felony of a serious nature being committed, it is then possible that in the interests of the general public he may have to take action.
I believe that this amendment also helps the magistrates' courts. After all, magistrates have to deal summarily with cases which are brought to arrest. Subject to what my noble friend the Minister says—and I look forward to hearing from him—I must say that, particularly in view of what my noble friend Lord Inglewood has said about the various grades of constable, I am very much inclined to support the amendment.
Lord Hooson: During the Second Reading debate of this Bill I ventured to cast doubt on the test of balance as being a suitable test for deciding one's view on this Bill. It so happens that on this part of the Bill the question of balance is important. One can appreciate that there is a need for the police to have the power to stop and search. We all regret it, but it is necessary. Our concern largely arises because it is well known that there are many instances, particularly in London, of the misuse of this power. Research has been done on it, and the latest piece of research which I have read is by Dr. Vorhaus, who did some research in Middlesex, in the London borough of Hillingdon. Her findings on this were that the vast majority of young people who
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were stopped were resentful of the police thereafter. The only ones who did not object to being stopped were those who were guilty; but the vast majority of those who were stopped were innocent, and it coloured their view of the police thereafter.
We have to use our common sense and judgment on this matter. Like the noble and learned Lord, Lord Denning, I wavered about this provision, but, unlike him, I have come down firmly in favour of the amendment. With the greatest respect to the noble and learned Lord, he described the safeguard provisions in Clause 2 as adequate, but I do not think he was addressing his mind to the circumstances in which a stop and search takes place. It is likely to be at night, very often in the rain, in a dark corner—in that kind of situation. How can one produce documentary evidence, and how can that be suitable?
It is correct that the powers given under this part of the Bill are exceptional powers. The noble and learned Lord and my noble friend Lord Hutchinson gave a history of this matter which has gradually been expanded until we have the proposals in the modern Bill. It is contrary to the common law and is quite an exceptional power, but it is by no means the main power for dealing with crime.
I listened with interest to what the noble Lord, Lord Plant, said about this matter. I hope he will not use the kind of emotive language that he used in objecting to this amendment—"Whose side are we on?" It is a reprehensible question. I should have thought that we are all in favour of law and order in a civilised society. Law and order in a non-civilised society is very easy. One gives draconian powers to the police and that is all there is to it. Of course, I can perfectly well understand the attitude of the Police Federation. There must be many cases that it has in mind where it would be an impediment to the discovery of crime if a police officer in plain clothes could not exercise this power. That is, as it were, a minus to the amendment.
On the other hand, we have to put against that the knowledge we have that many young people are stopped who are entirely innocent. We have the knowledge that there is very considerable resentment and that it tends to colour the attitude of people towards the police. There is the obvious problem, to which the noble and learned Lord, Lord Elwyn-Jones, referred, of the misuse of this power by felons, and it is obvious that this can be done. To put the whole thing in perspective let us ask ourselves sensibly the question: are the safeguards in the Bill to which the noble and learned Lord, Lord Denning, referred, adequate for this situation? I do not think that they are.
3.52 p.m.
Lord Elton: I think I am on safe ground when I say that all your Lordships agree that a power to stop and search is necessary for the enforcement of law and order and for the protection of law-abiding citizens and their property. The question to which your Lordships are addressing yourselves is the circumstances under which that power can be given to the police for their exercise, the extent to which it should be controlled and the limits within which it should be exercised.

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It is quite clear from the report of the Royal Commission, and I think implicit in what your Lordships have so far said this afternoon, that the purpose of having a stop and search power is not merely to bring to light evidence of offences but also to prevent that being done in a more antagonistic way than necessary. Your Lordships have throughout the debate properly addressed yourselves to the question of the relationship between the stopper and the stopped. If I may at this point refer to the noble Lord, Lord Gifford, for whose experience I have a considerable regard because it is so apposite to the subject we are debating, I do not think it is a sufficient justification for the limitation or the removal of part of this power to say that it can be replaced by a power of arrest. As the report of the Royal Commission said, a power to stop and search is. in part, in order to make it unnecessary to take people to a police station to search them; that is, to arrest them.
Leaving that on one side, I come to the nub of the matter—the dangers implicit in the power. I do not seek to belittle or conceal them. I am aware of them not only officially but, as it were, also anecdotally. I have friends who have undergone the sort of experience that some of your Lordships have described. What they have told me has been an experience to which, in my view, they should not have been submitted. That means therefore that it is necessary to place a restriction on the power. That is why the Bill is drafted as it is and why I have an amendment down for a later part of the Bill to make possible an even closer regulation of what is done.
Before I turn to that, I reinforce what has been said by the noble Lord, Lord Plant. I am sure he did not wish to express it in confrontational terms and I would not be asking your Lordships to take sides between the police and the public—which is what I think your Lordships' inferred to him. I think he asked: on whose side are you, the police or the criminal? However, that is a triangular description because there are the police, the innocent public and the criminals. We should not therefore use confrontational terms.
The noble Lord said, if I recall correctly, "You are asking the police to do a job which is to detect crime, and suggesting that 15 per cent. of the police force, whose job it is to do that, shall be deprived of one of the most important means of doing it." The noble Lord speaks with authority, but I would add to that a more precise picture that is at the back of my mind. In the market place, where there is persistent and valuable pilferage going on, it is not possible for a uniformed constable to patrol constantly without enabling the criminals active in this field to conceal themselves from him. Are your Lordships saying that the bobby must always be in uniform in all crowded places where an offence is likely to take place so that the offence then does not take place within his sight? That would be to restrict the powers of the police. It would also make it quite evident to the criminal public where the police are deployed at any one time and where, therefore, it is safe for them to pursue their nefarious activities.
Then again, what about the chance encounter? My noble friend Lord Auckland asked a very pertinent question. He referred to the commission of a felony—I
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think a felony no longer exists on the statute book—but we are talking about suspicion. If a constable returning home, having left his uniform at the station house, or is off duty for the weekend, encounters someone who, all the circumstances suggest, has stolen property in his pockets or is concealing a prohibited article in the form of a offensive weapon, is he to say, "Good evening, will you wait while I change back into uniform?". That is a ridiculous proposition and I do not think my noble friend suggests that. The noble Lord, Lord Donaldson, on the other hand, wants to tell me what my noble friend really meant, so I will let him.
Lord Donaldson of Kingsbridge: It was suggested earlier that there is a course which, in relation to comparatively certain suspicion, is available to a plain clothes policeman. He can arrest the man and take him to the station. If the policeman is wrong, he has to make a very strong apology. However, quite honestly, we do not want the plain clothes policeman to arrest people on suspicion that is less strong than that which really enables him to make an arrest. That seems to me to be the point.
Lord Elton: I can see both sides of that question. Let us consider that we are outside Harrods with the innocent noble Lord, Lord Mishcon, and a constable who is not in uniform picks on us and not him because we look less innocent and guileless than the noble Lord habitually does. I said we, because I am not imputing this to myself alone. If I were among that suspect group I would rather be asked to turn out my pockets on the spot than to go off in an unmarked van to Kensington police station. Therefore, I think there are two sides to that question. The point I want to make is that power is needed. My examples may have been insufficient or controversial, but we are dealing with an important means by which the police are empowered to protect us and all other innocent citizens.
I now return to the focus of our concern—that this should not be done in a provocative or an extravagant way. We shall later be discussing the terms of Clause 2 but I remind your Lordships that the constable who is not in uniform is required to produce what I think the noble and learned Lord, Lord Elwyn-Jones, referred to as an overt manifestation of his identity in the form of documentary evidence—which is yet another form of saying, nine times out of 10, a search warrant—and, what is more, whether or not he is in uniform. So all this applies to the constable in plain clothes. Before he does anything in the way of searching, he has to give his name, the name of the police station to which he is attached, the object of the proposed search, to say the grounds on which he is proposing to make it and to say that he will be making a record which will be available if the person searched wants it at any time in the next 12 months. I am advised that the record will normally be made on the spot in what is charmingly and, to my mind, novelly described as "multiplicate". In other words, it will be possible to tear off from the pad a copy of the report of the account of the search and have sufficient copies left over for subsequent use.
In addition to all that there is the fact that the searched person knows who is searching him; knows first of all that he is a constable; knows which constable

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he is; knows from which police station he comes; knows why he is being searched; and also has a record of this to which he can refer when he wants to make a complaint or inquiries. If that is not enough—for we are aware of your Lordships' disquiet about this and are not riding roughshod over anxieties—we are bringing in an amendment. As your Lordships will see, Amendment No. 156 will provide both a power and a duty for the Secretary of State to create a code of conduct for this sort of behaviour and, of course, under Clause 64, it will be enforceable under the disciplinary code. You cannot say in the Act on the statute book that policemen shall behave themselves in a courteous and restrained manner, but you can say it in the code of practice.
I think we do have here a sufficient balance in favour of the protection of the individual. I always find it both encouraging and depressing to be supported by the noble and learned Lord, Lord Denning. I am encouraged because broadly he is saying that I am right; I am depressed because he has said so more convincingly, more lucidly and more quickly than I could ever hope to do it. I pray the noble and learned Lord in aid.
I do not think that I should dilate on other matters that have been raised, unless your Lordships wish to prolong this debate. I think I have made it clear that the Government are sympathetic to the anxieties of the public, recognise the dangers, believe that they are sufficiently controlled by what is in the Bill and by what is proposed for the Bill and believe that without them the police would be significantly weakened, which is something that should not be done.
Lord Donaldson of Kingsbridge: Before the noble Lord sits down, will he give the Committee the number of the amendment which he quoted? I cannot find it in the revised list.
Lord Elton: It is Amendment No. 156.
Lord Donaldson of Kingsbridge: In the revised list?
Lord Elton: On the list which I have, which I take it is the revised list. I will check, while other noble Lords are speaking.
Lord Inglewood: Before the noble Lord sits down, could he give me a quick answer to my question about whether the term in the Bill which we are discussing covers all the various police forces which we have in this country, which together add up to quite a considerable number?
Lord Elton: In answer to the noble Lord, Lord Donaldson, yes, it is Amendment No. 156 on the Marshalled List (225-II), which I think was printed last night. It occurs on page 27 about halfway down.
As to the question of my noble friend Lord Inglewood, Parts I and IV do apply to constables in general, and that includes the British Transport Police and constables maintained by authorities other than police authorities. I think the definition is in Clause 90. But their powers are not available in all circumstances. That depends on their local Act. The provisions under
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Part IX for the complaints system do not apply to these constables directly, but under Clause 90 the complaints authority may make arrangements to have complaints against these constables dealt with.
Baroness Wootton of Abinger: I cannot understand why the noble Minister thinks it necessary to make possible searches by ununiformed police, with all this elaborate performance of producing documentary evidence and so forth, when a perfectly simple way around that is that they should be in uniform. This sidetracks all this unnecessary paraphernalia. Why does he want to enlarge the scope by bringing this in?
Lord Elton: The brief answer to that question is that not all policemen wear uniform. A lot of policemen do their work not in uniform. The Criminal Investigation Department for instance habitually do not wear uniform on duty. They would then be inhibited from doing this essential duty on duty as well as off it as the rest of them would be if the amendment was passed.
Lord Somers: I should like to ask the noble Lord one question. I think the thing that most of us are anxious about is the possibility of the wrongdoer masquerading as a plain clothes policeman. Do the general public as a whole know what a search warrant looks like? Would it be possible for the wrongdoer to produce a forged one which the person he was searching did not recognise or had to take as being the official one?
Lord Elton: The possibility of fraud and forgery are always with us. It is possible to have a faked uniform just as it is possible to have a faked warrant card. The penalty for impersonating a police officer is severe. In a moment or two I shall be able to tell the noble Lord what it is.
Baroness Vickers: May I refer to what the noble Baroness Lady Wootton said? If what my noble friend the Minister said takes place outside Harrods, surely a crowd would gather in no time? I would much sooner go to the police station straight away and have the thing done quietly there.
Lord Elton: It will be open to my noble friend to say, "I refuse to be searched. Get lost", and be taken to the police station.
Noble Lords: No.
Lord Elton: That is not entirely a frivolous thing. If a person wishes to be searched in private, he can say that he does not wish to be searched in public.
Lord Elwyn-Jones: We are getting into rough water in telling police officers, "Get lost". If ever you are going to be in a confrontational scene, then you will get it from the average constable. I am not reassured to learn from what the noble Lord the Minister has said that these powers are also available to plain clothes railway policemen at Victoria station or wherever it may be. That gives me no comfort whatsoever.
We have traversed the arguments pretty well. We do not want to engage in this long Committee stage for the sake of extending it by any means. The submission

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which I think has come out overwhelmingly in the discussions we have had so far is that, whatever limited value there may be in plain clothes policemen engaging in stop and search, damage is caused to the relationships between the police and the public and therefore the ability of the police to function in our society—an ability which depends to a very high degree on the willing co-operation of the public—is gravely endangered by the stop and search practice by plain clothes constables.
The overwhelming majority of those who have been searched have been wholly innocent people. We have created hostages against the police and against the public interest in maintaining law and order in our society. I hope greatly therefore that, after giving further consideration, the noble Lord may, after all, be disposed either to agree to this amendment, or even to join us in the Lobby in support of it.
Lord Elton: The noble and learned Lord invited me to consider further. I do not know whether in fact that was a way of putting the Question. I do not want to delay that. I merely want to say that it was perhaps an unfortunate turn of phrase when I suggested to my noble friend Baroness Vickers that she should tell a policeman to "Get lost". I regret that. What I say is that, if the noble Baroness refused to be searched, she might well put herself in a position where she would be courteously arrested and delicately taken to the police station.
Lord Elwyn-Jones: I think the time has now come for the Committee to make a decision on this matter.
4.8 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 119.

DIVISION NO. 1

CONTENTS

Airedale, L.

Collison, L.

Amherst, E.

Cooper of Stockton Heath, L.

Ampthill, L.

David, B.[Teller.]

Ardwick, L.

Davies of Penrhys, L.

Attlee, E.

Dean of Beswick, L.

Auckland, L.

Diamond, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Banks, L.

Elwyn-Jones, L.

Barnett, L.

Elystan-Morgan, L.

Birdwood, L.

Ennals, L.

Birk, B.

Swart-Biggs, B.

Blyton, L.

Ezra, L.

Boston of Faversham, L.

Fisher of Rednal, B.

Bottomley, L.

Foot, L.

Bowden, L.

Gaitskell, B.

Briginshaw, L.

George-Brown, L.

Brimelow, L.

Gifford, L.

Brockway, L.

Gladwyn, L.

Brooks of Tremorfa, L.

Graham of Edmonton, L.

Bruce of Donington, L.

Grey, E.

Buckmaster, V.

Grimond, L.

Caccia, L.

Hale, L.

Caradon, L.

Hampton, L.

Carmichael of Kelvingrove, L.

Hatch of Lusby, L.

Chitnis, L.

Hemingford, L.

Cledwyn of Penrhos, L.

Hooson, L.

Coleraine, L.

Hunt, L.

802

Hutchinson of Lullington, L.

Rochester, Bp.

Irving of Dartford, L.

Rochester, L.

Jacques, L.

Ross of Marnock, L.

Jeger, B.

Sainsbury, L.

Jenkins of Putney, L.

Seear, B.

John-Mackie, L.

Seebohm, L.

Kaldor, L.

Simon, V.

Kilmarnock, L.

Stallard, L.

Kinloss, Ly.

Stedman, B.

Listowel, E.

Stewart of Alvechurch, B.

Llewelyn-Davies of Hastoe, B.

Stewart of Fulham, L.

Lloyd of Kilgerran, L.

Stoddart of Swindon, L.

Lockwood, B.

Stone, L.

McCarthy, L.

Strabolgi, L.

McGregor of Durris, L.

Strauss, L.

Macleod of Borve, B.

Swann, L.

MacLeod of Fuinary, L.

Taylor of Blackburn, L.

Mais, L.

Taylor of Gryfe, L.

Mar, C.

Taylor of Mansfield, L.

Merrivale, L.

Tordoff, L.

Milford, L.

Underhill, L.

Mishcon, L.

Vaizey, L.

Monson, L.

Vickers, B.

Morris, L.

Wade, L.

Mulley, L.

Wallace of Coslany, L.

Nicol, B.

Wedderburn of Charlton, L.

Northfield, L.

Wells-Pestell, L.

Ogmore, L.

Whaddon, L.

Oram, L.

White, B.

Phillips, B.

Winchilsea and Nottingham, E.

Ponsonby of Shulbrede, L. [Teller.]

Winstanley, L.

Porritt, L.

Winterbottom, L.

Rathcreedan, L.

Wootton of Abinger, B.

Reilly, L.

NOT-CONTENTS

Ailesbury, M.

Greenway, L.

Airey of Abingdon, B.

Gridley, L.

Alexander of Tunis, E.

Halsbury, E.

Allerton, L.

Harris of Greenwich, L.

Avon, E.

Hatherton, L.

Balfour of Inchyre, L.

Henderson of Brompton, L.

Bauer, L.

Hertford, M.

Belhaven and Stenton, L.

Home of the Hirsel, L.

Beloff, L.

Hood, V.

Berkeley, B.

Hunter of Newington, L.

Blake, L.

Hylton-Foster, B.

Brookeborough, V.

Inglewood, L.

Brookes, L.

Kaberry of Adel, L.

Broxbourne, L.

Killearn, L.

Cameron of Lochbroom, L.

Kilmany, L.

Campbell of Croy, L.

Kinnaird, L.

Carnegy of Lour, B.

Lane-Fox, B.

Cathcart, E.

Lauderdale, E.

Cockfield, L.

Long, V. [Teller ]

Constantine of Stanmore, L.

Lothian, M.

Cork and Orrery, E.

Lovat, L.

Cox, B.

Lucas of Chilworth, L.

Cullen of Ashbourne, L.

Lyell, L.

Dacre of Glanton, L.

McAlpine of Moffat, L.

Daventry, V.

McAlpine of West Green, L.

Davidson, V.

Mancroft, L.

Denning, L.

Marshall of Leeds, L.

Dilhorne, V.

Masham of Ilton, B.

Drumalbyn, L.

Maude of Stratford-upon-

Effingham, E.

Avon, L.

Ellenborough, L.

Mersey, V.

Elliot of Harwood, B.

Milverton, L.

Elton, L.

Molson, L.

Energlyn, L.

Mottistone, L.

Faithfull, B.

Mountgarret, V.

Fraser of Kilmorack, L.

Mowbray and Stourton, L.

Gainford, L.

Murton of Lindisfarne, L.

Gibson-Watt, L.

Newall, L.

Glanusk, L.

Nugent of Guildford, L.

Glenarthur, L.

Onslow, E.

Gormanston, V.

Orkney, E.

Granville of Eye, L.

Pender, L.

Gray of Contin, L.

Peyton of Yeovil, L.

803

Plant, L.

Strathcarron, L.

Portland, D.

Sudeley, L.

Radnor, E.

Swansea, L.

Renton, L.

Swinton, E. [Teller.]

Rochdale, V.

Taylor, L.

St. Aldwyn, E.

Terrington, L.

St. Davids, V.

Teviot, L.

Sandys, L.

Thorneycroft, L.

Savile, L.

Tranmire, L.

Selkirk, E.

Trefgarne, L.

Sempill, Ly.

Trumpington, B.

Sharples, B.

Tryon, L.

Shaughnessy, L.

Ullswater, V.

Skelmersdale, L

Vaux of Harrowden, L.

Somers, L.

Vivian, L.

Stamp, L.

Ward of Witley, V.

Stodart of Leaston, L.

Whitelaw, V.

Resolved in the affirmative, and amendment agreed to accordingly.
4.19 p.m.
Lord Gifford Lord Gifford moved Amendment No. 2:
Page 2, line 6, leave out ("or vehicle").
The noble Lord said: In this amendment I seek some clarification of the powers which are contained in Clause 1(2) of the Bill. Clause 1(2) says that:
"a constable—

(a) may search—

(i) any person or vehicle;

(ii) anything which is in or on a vehicle, for stolen or prohibited articles; and

(b) may detain a person or vehicle for the purpose of such a search.".

As to detaining a person who may, if not detained, go in the opposite direction, one understands the reason for that to be spelt out expressly. My amendment seeks to delete the words "or vehicle" because I cannot see the relevance of the concept of detention to a vehicle. I ask myself how in fact do you detain a vehicle? Do you put upon it one of those extraordinary clamps which are now commonly seen in London? Do you stand in front of it? Do you leap into the vehicle and stop the driver from driving it or do you remove it to a police station? I know not. Surely the most adequate way of bringing about the power to search would be to detain the person who might otherwise drive away the vehicle, and that is of course part of the powers of the Bill.
To be able to detain a vehicle seems also to conflict with the provisions of Clause 2(9)(b) at the bottom of page 4 of the Bill. That clause states that nothing in the powers conferred by Clause 1 authorises a constable not in uniform to stop a vehicle, and yet here we have a power for any policeman to detain a vehicle. There seems to be some conflict. Purely on the question of clarification and simplicity, it seems to me quite adequate for a person to be subject to the power of detention. Once you get into the possibility of detaining a vehicle, I am far from clear as to how it is intended to be operated or whether it is necessary at all. I beg to move.
Lord Elton: This amendment would remove the power to detain a vehicle for the purpose of a search under Clause 1. The power to stop a vehicle for such a search is, of course, conferred by Section 159 of the Road Traffic Act 1972. I think that it is common ground that there should be a power to search a vehicle on reasonable suspicion; indeed the noble Lord has
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not tabled an amendment to remove it and has not suggested it in his speech. Clearly there will therefore be a need for a power to detain a vehicle for the purpose of such a search, just as there will be a need to detain a person in order to search him. The police cannot search a vehicle which is being driven away from them. The only question, therefore, is whether Section 159 of the 1972 Act is sufficient on its own to permit a constable to detain a vehicle for the purpose of a search for stolen or prohibited articles or whether specific provision should be made in the Bill.
The predecessor of Section 159 of the 1972 Act was Section 223 of the 1960 Act and in Regina v. Waterfield and Lyn the Court of Appeal declined to rule on whether that section conferred a power to detain as well as a power to stop. In that case, the court decided that the circumstances surrounding the case were such that the police had no right to detain the vehicle they had stopped and that therefore, if the Act did provide a power to detain vehicles, it had been exercised invalidly. This case must, I think, cast doubt on whether the 1972 Act does, in fact, contain a power to detain a vehicle as opposed to a power to require its driver to stop only. If your Lordships accept this amendment, the Bill will clearly bestow a right to detain a person but it will still be silent as to the power to detain vehicles. I think that the Bill as drafted dispels an uncertainty and I am grateful to the noble Lord for revealing the purposes of its being drafted as it is.
Lord Gifford: I thank the Minister for his explanation. It would still seem to me to be quite sufficient to have the power to detain the driver in order to stop him from driving away the vehicle. But the noble Lord has referred to a number of provisions and cases which I shall be happy to look up and study and, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hooson Lord Hooson moved Amendment No. 3:
Page 2, line 9, leave out ("he has") and insert ("there are specific circumstances giving him").
The noble Lord said: It seems to me that the greatest single safeguard that we could have in this part of the Bill would be a code of practice and I am very much in favour of such a code. But there is one specific safeguard which is required in the Bill itself and my noble friends and I have drafted in this amendment what we think is the simplest form of that safeguard. If I read subsection (3) with the amendment in, it immediately reveals what we have in mind. It reads:
"This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless there are specific circumstances giving him reasonable ground for suspecting that he will find stolen or prohibited articles".
Although the test "reasonable grounds for suspecting" is said to be an objective test, in fact it is extremely subjective. In the main, the problems that have arisen—and they have largely arisen in the Metropolitan London area and not outside in the provinces—have been caused by the variation in what are reasonable grounds for suspicion among different constables. I regret to say that, as the Bill is drafted at the present time, the great majority of officers would

805
interpret the subsection to mean that they are entitled to search anyone whom they regard as generically suspicious; and we all know from the statistics of those who are stopped and searched that, if you have long hair, if you wear a certain kind of clothes and if you are young, you are suspected. I remember being extremely suspicious of them until my children went away to college and university and found that most of their friends accorded with the description that I had always found suspicious. But the truth is that police officers, by their very nature, tend to be short-haired and to look with great suspicion upon the non-orthodox, the non-conforming and so on.
What this amendment seeks to do is to concentrate the mind of the officer on the fact that there must be specific circumstances giving him reasonable suspicion. I hope that the noble Lord the Minister will be able to accept this amendment because it in no way detracts from the power or the duty of the officer, and yet it concentrates the officer's mind on the fact that it is not his prejudice that matters, nor the fact that he simply does not like a man's face, his colour or the way he cuts his hair and so on. The officer must direct his mind to specific circumstances that give him reasonable grounds for suspicion. I beg to move.
Lord Hutchinson of Lullington: May I support this amendment, because once again the purpose is to try realistically to limit these extensive powers. It was very heartening to hear the noble Lord the Minister saying a few moments ago that he conceded that it was necessary to impose restrictions upon this very wide power. In the Second Reading debate the noble and learned Lord, Lord Scarman, enjoined us all to put our minds to the safeguards in this Bill. He said that he was very troubled by the safeguards and on the phrase "reasonable grounds" he asked rhetorically the question: who is to judge what is reasonable? He suggested that as time went by the police view of what is reasonable would take over.
This amendment attempts to grapple with the question raised by the noble and learned Lord by limiting the grounds for suspicion to the circumstances of the stop itself. Instead of a police officer, as the noble Lord, Lord Hooson, has just said, judging the situation by the area, the type of person, the clothes he is wearing and the fact, in certain circumstances, that he may or may not be a homosexual, and so on, he will have to find his reasonable suspicion from the circumstances of the stop and search itself. There will have to be something there which causes the reasonable suspicion.
It alarms me, and I hope that it will alarm noble Lords, that during the Committee stage in another place two different Ministers both said that a reasonable suspicion could arise, for instance, from knowledge of a person's previous criminal record. I would, with the greatest of respect, submit that that is basically against everything the criminal law stands for and the way we conduct our affairs. If a police officer sees a person whom he knows has a previous conviction for having received stolen property, or for having stolen, or for having burgled a house, that that in itself would justify the police officer going up to that person and stopping and searching him must surely be wrong. It is precisely because of that suggestion, used
806
during the Committee stage in another place, that we have put forward this amendment. It would cut out that kind of mischief—the hunch, to which the PSI report refers, which most police officers act on when they stop and search people—and would tie it into the actual circumstances of the offence.
We must, must we not, try to stop random searches, of which the great example was the swamp search in Brixton, in which no fewer than 940 people were stopped and searched, 868 of whom were totally innocent. That is an example of how, obviously, the reasonable suspicion cannot have been based on anything other than the fact that they were young, black people in a certain area who might at some time commit an offence. I submit to your Lordships that this amendment meets the concern of the Royal Commission on this point.
Your Lordships may remember that the Royal Commission report states:
"Some of us think that because of the wide range of weapons and the necessity to prove intent the power will bring with it the danger of random and discriminatory searches. If this power is allowed, it must be covered by stringent controls, otherwise it will give rise to abuse".
Your Lordships will remember that senior officers were enjoined to watch out for signs that searches were being carried out at random. If this amendment is accepted, all that will be looked after.
Lord Monson: I warmly support the amendment. It is intolerable that people wearing jeans or men wearing their hair long should be at risk of being stopped and searched merely because their outward appearance gives the police the idea that they are the kind of people who might well be up to no good.
Some years ago a relation of mine had a job which kept him in central London until quite late in the evening. On one or two nights a week he used to play bridge at a club: on those days he used not to leave London until the small hours of the morning. Every night, at about midnight or 1 a.m. on the average night or two or three hours later on his bridge-playing evenings, he would drive back to Dulwich, where he then lived. He never had any difficulties until the moment when he decided to grow a beard (I should explain to the Committee that this was in the 1960s, not in the 1970s when beards became rather more prevalent). From that moment on his problems started. He was constantly stopped by the police and asked what he was doing out at that time of the morning, and he was frequently asked to open the boot of his car.
There was another point which may interest the Committee: it is not strictly germane to this amendment, but it is germane to Part I of the Bill as a whole. Whereas the older policemen were invariably courteous and tactful, the younger constables—those of his own age or younger—were frequently rude and often clearly enjoyed throwing their weight about. This confirms stories one has heard elsewhere. If this kind of thing can happen to somebody who has demonstrably been to a public school, how much worse must it be for somebody who has demonstrably not been to a public school?
Lord Denning: I am against the amendment. Throughout the law there is the test whether the person had reasonable grounds to believe or, in this case, reasonable grounds for suspicion. If the matter eventually comes to a civil court, it is often left to the jury or to the judge. The person has to show that he had reasonable grounds, so he has to state the circumstances which show that he had reasonable grounds for suspicion. It is the police officer himself who has to make a decision on the spot. It is his reasonableness which should be judged subjectively, not objectively. This amendment would suggest specific circumstances other than his own state of mind. The Bill as it stands corresponds to quite a number of similar tests in the law. Therefore, it is quite sufficient to let the Bill stand as it is.
Lord Elystan-Morgan: I have been very greatly impressed by the case put forward by the noble Lord, Lord Hooson, and by the noble Lord, Lord Hutchinson of Lullington. I venture to suggest that it is an amendment which the Government can readily accept, for it seems to me that it achieves everything which the Government seek to bring about in this connection.
The Government wish to achieve two end products. The basic end product is a stop and search, lawfully carried out by a police officer who has genuine, specific reasons for suspecting that a person is carrying stolen goods, or an offensive weapon, or a chattel for use in connection with theft or obtaining by deception, et cetera. The second end product is dealt with in Clause 3(6)(a)(ii) of the Bill: that the officer should be able to set out genuinely the grounds for making that search. With the greatest respect for the argument put forward by the noble and learned Lord, Lord Denning, it seems to me that no officer can achieve those two end products or work in such a way as genuinely to have a chance of achieving those two end products unless he has applied his mind to specific, as opposed to general, circumstances.
In the circumstances, I ask the rhetorical question: what at all would the Government lose by accepting this structure? It may well be said that in accordance with the argument put forward by the noble and learned Lord. Lord Denning, a certain amount of certainty would be lost, on account of the fact that the turn of phrase "reasonable cause" is well known to our law. I can see that. Nevertheless, bear in mind that we are dealing here with what the Royal Commission called—and it is their term, not mine—"coercive powers" and that therefore there is a high onus upon this Committee to make quite certain that every adequate safeguard that it can reasonably build into the system shall be so created.
We must never forget that there is a high duty towards not just the public in general but towards the very high percentage of people who will be stopped and searched under these provisions and who will be completely innocent. It is worth remembering what the Royal Commission said in paragraph 26, in that part of the report dealing with investigation and prosecution of criminal offences in England and Wales and with the general procedure. It said this:
"Comprehensive statistics on the exercise of powers to stop and search are not collected centrally except in the case of searches for
808
controlled drugs under the Misuse of Drugs Act, 1971. Statistics on the use of this power and its results are in Appendix II. In addition, at the Royal Commission's request, the Metropolitan Police provided information from its own records of the number of stops of persons and of vehicle made under Section 66 of the Metropolitan Police Act 1839. In two one-month periods in 1978 and 1979, over 40,000 and 35,000 such stops were recorded respectively. The numbers of arrests which resulted were over 5,000 and 4,000, giving arrest rates of 13 per cent. and 12 per cent.".
Those were arrest figures. We do not have the figures for the number of arrests which eventually led to prosecutions and what percentage of those were successful prosecutions.
I have read somewhere—and no doubt someone will tell me exactly where this is published—that the broad figure for the number of successful prosections arising from stop and search exercises is generally 5 per cent. So one can say that, of 100 suspects, probably 85 at the very least would be completely innocent. There would be a question mark over certain of the others but only a third of that remaining 15 per cent. would eventually be successfully prosecuted.
The last point I seek to make is one well-known to the Committee. There is no general balance as between persons who are stopped and searched. Young people are 11 times more likely to be stopped and searched than persons over the age of 23. As far as coloured people are concerned, it seems from a broad view of the available statistics that they are about five times more likely to be stopped and searched than caucasians. It is in the light of all those matters that I urge the Minister to say that nothing will be lost by accepting this amendment but that there would be a very considerable gain in so far as the necessary safeguards for this provision are concerned.
Baroness Macleod of Bone: The noble Lord who has just spoken referred to coloured people. Surely the statistics will depend on the area in which one lives and whether in that area there is a preponderance of coloured people. One cannot say, for instance, that in Hillingdon or any area such as that there will be more coloured people stopped and searched than anywhere else. Perhaps it is to do with that.
I feel that this amendment is unnecessary. The police must have a certain amount—I stress those words—of flexibility. The word "specific" is too narrow when, in Clause 3(6) as the noble Lord has stated, the reasons which a constable shall have for stopping and searching are specifically laid down. As the noble Lord observed, the term "reasonable grounds" has stood the test of time. Perhaps in the eyes of certain young people it is not quite so good, but we shall come to that point later in the Bill. I personally feel that the word "specific" is too narrow and is unnecessary.
Baroness Wootton of Abinger: If one lives in an area where coloured people are, as a result of circumstances at present and in the recent past, more likely to commit offences than others, then there is a purely reasonable assumption that colour alone creates a probability and enhances the probability of an offence. That difficulty will be avoided if we use the term "specific circumstances". Reasonable suspicion alone will not do in this context.
4.45 p.m.
Lord Elton: Subsection (3) requires a constable to have reasonable grounds for suspecting that stolen goods or prohibited articles will be found before he may exercise the power to stop and search a person or a vehicle. In moving the amendment, the noble Lord suggested that this criterion should be expanded to refer to the specific circumstances that gave rise to this reasonable suspicion.
I accept that there has been in the past misuse of the power to stop and search and that it has on occasion been used without sufficient grounds—that is to say, without reasonable grounds—for suspecting that the constable conducting the search would find stolen or prohibited items. I agree also that that calls for a change in practice, and that a change in practice is best brought about by a change in the law. Thus far, I can travel on the same road as the noble Lord. Where we differ is on what the change in the law should be. It does not seem to me as it does to him that those failures which there have been in the past have sprung from any defect in the use of the phrase "reasonable suspicion". Certainly mere suspicion of someone ought not to provide sufficient reason to search him. There must be some concrete basis for that suspicion and it must relate to the individual concerned. I presume that is what the noble Lord seeks to achieve by this amendment.
The noble Lord wants a specific reason or reasons for the suspicion that the constable feels—and reasons, moreover, which the court would accept as such. But the requirement for that specific reason is already established in the phrase "reasonable grounds for suspecting" in subsection (3). This is the phrase used and tested in the courts—as the noble and learned Lord, Lord Denning, has said—in such existing legal powers as Section 23 of the Misuse of Drugs Act, 1971 and Section 47(1) of the Firearms Act, 1968; the examples are my own.
There must already be some concrete basis for the officer's belief. It must already be related to the individual peson concerned and be able to be considered and evaluated by an objective third person. That is the requirement of the law as it now stands and as it has been frequently tested in the courts. If this concrete basis is lacking, the suspicion cannot be reasonable. A mere suspicion—a hunch or instinct, or a glimpse of long hair—which cannot be articulated or offered for objective scrutiny does not suffice.
An officer who has such a hunch or instinct may well be justified in continuing to keep the person concerned under observation but additional grounds which raise mere suspicion to the level of reasonable suspicion are needed before the constable may exercise the power to stop and search. Therefore, if there is a defect, it does not lie in the definition. The words which this amendment seeks to include are not needed and we must look elsewhere for our remedy.
Such suspicion may arise from the nature of the property being carried, together with factors such as the time, the place, and the behaviour of the person concerned or of those with him. Reasonable suspicion cannot be supported on the basis simply of a higher than average chance that the person has committed or is committing an offence—I believe that that was the
810
point on which the noble Baroness, Lady Wootton of Abinger, sought reassurance—or because that person belongs to a particular group within which offenders of a certain kind are relatively common, or because of a combination of factors such as those. It is certainly clear that young black people, for instance, should not be stopped and searched simply on the basis that they have a higher than average chance of being involved in arrests for certain types of offences. Nor is the mere fact that a person is carrying a particular kind of property, is dressed in a certain way, or has a certain hairstyle of itself sufficient grounds.
The question of course remains of how to ensure that reasonable suspicion means in practice what it says. That is what we are concerned with. There are two practical ways of doing that. The first involves a change in the law. It concerns the new requirements to give and record information contained in Clauses 2 and 3. These requirements were designed by the Royal Commission—from which the noble Lord, Lord Elystan-Morgan, quoted—for the purpose of seeing that the test of reasonable suspicion was not diluted in practice. They compel officers to subject their beliefs to the disciplines of articulation and transcription, and they also allow senior officers to supervise the exercise of those powers, because they will have copies of the reports as well. The PSI report on the Metropolitan Police confirms the case for these requirements, and I commend them to your Lordships.
The second way is to provide the police with better guidance about the requirement of reasonable suspicion. Your Lordships will see—and I have already mentioned—that we have given notice of an amendment to require the Home Secretary to issue a code of practice under Clause 63 for the exercise of powers of stop and search. This will provide an opportunity to make the points which I have been emphasising this afternoon and which can be driven home in the course of the full training programme on the Bill's provisions, which is now being prepared and behind which of course will stand the code of discipline.
I think that these two provisions render random searches which are provocative outwith the law. All the examples given in this debate have related to the effects of the law as its stands. I sought to describe to your Lordships how the law as we now draft it will remedy those defects. I hope that your Lordships will agree that the message that we are trying to get across about reasonable suspicion is essentially one of guidance and training. The constables have to get it right. It ought not to be necessary for it to be put right by the courts.
As I have sought to show, the words that the noble Lord proposes to use in the statutes would not achieve the effect that he desires, and nor do I believe that they are necessary to emphasise the importance of this matter, which is already well perceived. The concept of reasonable suspicion appears in other places in the Bill and in many other statutes. It would introduce an undesirable element of uncertainty if it were qualified in this context in the way proposed but not in the others and in other statutes. For all those reasons—
Lord Elystan-Morgan: Although I fully accept the general argument put forward by the Minister about reasonable suspicion, and the way that that term has been used in other Acts, does he agree that the combined effect of Clause 1 and Clause 3(6)(a)(ii) is to create a test which goes beyond reasonable suspicion? All that the amendment does is to acknowledge the totality and reality of that situation. To put it another way, does the Minister think for a moment that it would be right either for a court or a senior officer to tolerate a situation where an officer, in relation to the grounds for the making of a search, would put down, "general grounds of suspicion" or "reasonable general grounds of suspicion"? In my submission, all that the amendment does is to acknowledge the situation that has been created by the Bill.
Lord Elton: The noble Lord has very ably illustrated in terms that I did not choose myself that the amendment is at most superfluous. I thought that I heard him agree that the Bill already made it unacceptable for a person to be stopped and searched on grounds of general suspicion. That is what the noble Lord tells us his amendment is intended to bring about. If he says that that is already the effect of the Bill, he is saying what I have said.
I have said in addition to that that, if you add a gloss—the noble Lord called it an acknowledgement—such as the noble Lord seeks to put in his amendment, you are saying that the use of the term in this Bill differs, by whatever degree that gloss represents, from the use of the term not only elsewhere in the Bill but elsewhere on the statute book. That would cast doubt on what hitherto has been plain. Again, I must ask your Lordships not to accept the amendment.
Lord Mishcon: There was one interesting observation that the noble Lord the Minister made, and I think that it has affected some of our minds. In regard to dealing with the fear that we have that police officers may be constrained by the wrong motives when dealing with those of a certain colour or a certain eccentric appearance, the noble Lord said that, if we looked later into the amendments, we would find that the Government had now put down an amendment which deals with a code of practice which covers the very clause that we are talking about. The noble Lord the Minister and other noble Lords will know that we have put down an amendment calling for such a code of practice, it being, I believe, Amendment No. 28. I am impressed by the fact that, following upon that amendment, and an undertaking to look at this when it came to your Lordships' House (that undertaking having been given in another place), this code of practice is to be set up.
Can the noble Lord help us further by saying that in regard to that code of practice he will undertake that there should be included provisions which will cover the very fears that we are talking about, and possibly therefore make wording unnecessary in this particular Bill, because very firm guidance will be given in the code of practice? If he could give us that assurance, I think that there are many of us who would feel happier.
Lord Elton: Yes. I am grateful to the noble Lord for his courteous acknowledgement, and I might add my own courteous acknowledgement of the pressure that there has been for this from his friends. We are at one in believing that there should be a code of practice. The opportunity will be taken to clarify this matter in the text of the code.
Lord Hooson: I do not intend to press this amendment to a Division because, first, I have not had time to consider the effect of the code of practice. I hope that before the Report stage, it might be possible for us to see the code of practice.
Lord Elton: I should be less than frank if I did not tell your Lordships that I am not encouraged to expect the code to be ready by then. I am engaged in trying to expedite this work, but your Lordships will know that the undertaking was recently given; the work has started, but the drafting of the code of practice has to be as carefully done as the drafting of the Bill.
Lord Hooson: I am grateful to the noble Lord for that indication. As I said in my opening remarks, I think that the code of practice is the most important thing with regard to Part I of this Bill. I do not intend to press the amendment to a Division at this stage. I reserve my position until the Report stage.
I should just like to deal very shortly with one or two points that have arisen. I have the greatest respect for the opinions of the noble and learned Lord, Lord Denning. If ever I had to be tried in this country for any offence, I should want to come before him. But I am quite certain that when this matter goes to the court, and a judge has to interpret the words "reasonable grounds", he will immediately look at the specific circumstances surrounding the stop and search. As far as a judge is concerned the words are surplusage. That I would accept. But I was not concerned with the very rare case that comes before the courts. I was concerned with the general guidance to a police officer—the young constable; what should be riveted in his mind, when he, as it were, indulges in the exercise of stop and search. I am concerned with the kind of thing which is never normally reported but of which hundreds of cases occur every week. It is that matter that I have in the back of my mind in dealing with this amendment.
Your Lordships will appreciate that I am not satisfied that the safeguards are sufficient. All I can say is that at the moment I am not certain that it is necessary to proceed with this amendment. I should like to see the safeguards at the end of our discussions with regard to Part I of this Bill. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 4:
Page 2, line 33, at end insert—
("( ) After seizing any such article a constable shall either—

(a) inform the person who had possession of it that he may be prosecuted for an offence relating to his possession of it; or

(b) arrest him for such an offence.

( ) Any article so seized shall be returned within 28 days to the person who had possession of it, unless within that time a prosecution has been instituted against him for an offence relating to his possession of the article.").
The noble Lord said: Happily I can tell the Committee that I can be extremely brief in regard to this Amendment No. 4. We are talking in terms of rights of the police and their duties. If the Committee will look at page 2 of the Bill, and in particular to subsection (6) of Clause 1, they will find that in reference to a search, be it of a person or of a vehicle, if a
"constable discovers an article which he has reasonable grounds for suspecting to be a stolen or prohibited article, he may seize it".
A little lower down "an article" is defined. I will not trouble the Committee with reading the whole definition but I will refer them only to paragraph (b) of subsection (7), at the bottom of page 2. There your Lordships will see the wide definition given to "an article":
"(i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies"—
if I may say this in parenthesis, that means such things, obviously, as burglary or theft—
"or
"(ii) intended by the person having it with him for such use by him or by some other person".
That sounds extremely learned but I ask the Committee merely to consider two items: a pair of scissors, and a spanner. The police officer having decided—it may be perfectly properly—that he has rights under subsection (6), under that sub-paragraph he has the right to seize them But the citizen, the person deprived of that article, has no right at all. For all one knows, it may be a very necessary article to use in the course of his employment, quite apart from one necessary in the course of his toilet, if I talk in terms of the pair of scissors. However, there the section briefly and abruptly ceases and the poor citizen has no right at all; but the police officer has the right to seize it.
I therefore now ask the Committee to look at the perfectly simple rights which are given under this amendment, Amendment No. 4:
"After seizing any such article a constable shall either—(a) inform the person who had possession of it that he may be prosecuted for an offence relating to his possession of it; or (b) arrest him for such an offence".
Then,
"Any article so seized shall be returned wthin 28 days to the person who had possession of it, unless within that time a prosecution has been instituted against him for an offence relating to his possession of the article".
Can I just cease this submission to the Committee on this particular amendment by saying that if the period is the only matter that stands between the noble Lord the Minister and myself, and he says that 28 days is not long enough and it ought to be longer, he has an accommodating—I would always hesitate to use to him the word "opponent", but I promise him an accommodating reaction on this side. What we are trying to do at the Committee stage is to get the principle of the amendment home. I beg to move.
Lord Gifford: In support of this amendment, may I seek to point out that there seems to be a gap in the provisions of the Bill at this stage. The Bill says that the article may be seized. Absolutely nothing is said thereafter as to what should be done with the article once it is seized. This stands in marked contrast to the provisions of Clause 21 of the Bill.
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Clause 21 of the Bill contains provisions about what happens to articles which have been seized under Section 19. If one looks at Section 19 one sees that it refers to articles which have been seized after a search of premises. After a search of premises there are certain rights which the police have to retain the article and certain rights which the citizen has to get it back. That is all regulated and we can debate in due course as to whether or not it is the right regulation.
However, so far as articles seized in the street are concerned there is no such regulation. I am afraid that this will lead to confiscation without any due process of law, that articles will just be taken from the unfortunate person who is stopped or searched whether or not the articles were intended as, let us say, offensive weapons or are stolen goods. There will be no legal process to follow that up unless the person searched has the wit to go to a court and bring an action for trespass to goods or unlawful detention of goods. There should be provisions in this part of the Bill as there are in the other part of the Bill.
Lord Hutchinson of Lullington: May I say a word to the noble Minister about this amendment? Here is a situation where someone has been stopped and searched. Let us presume that he is in possession of an article totally innocently and the police officer seizes the article and that is the end of the incident. That person who is totally innocent will not have been told that he may be prosecuted; he will not have been warned; he will not have been cautioned; no record will have been made of any explanation which he might wish to give and so on. He will be in a worse position than the position of the people who are stopped every day, all over the country for road traffic offences, where if the officer is going to take any action about it the person committing the offence must be warned that he may be prosecuted. Surely what appears in the Road Traffic Act ought to appear here. It is a much more serious matter for someone to have property taken away fom him and then later be charged with being in possession of it knowing that it is stolen, or some similar charge.
Lord Elton: I find it very agreeable to say that the Committee is broadly right. The noble Lord, Lord Mishcon, has asked me not to pursue the detail of this amendment but the principle. Therefore, I will not draw out the perhaps unexpected consequences if his approach was to be accepted. However, as he has suggested, Clause 1 should indeed make provision for the retention of seized articles and the return of them, but the appropriate way of achieving this is to apply to seizures under Clause 1 the provisions of Clauses 20 and 21, which apply to articles seized in other circumstances. They already make adequate provisions for the length of time articles may be retained and require the police to grant access to them on request.
These clauses were added to the Bill during Report in another place and through an oversight they do not as yet govern articles seized under Clause 1. So I am very grateful to the noble Lord, Lord Mishcon, for drawing this to our attention and to the noble Lord, Lord Gifford, for pointing us roughly in the right direction to get what he wants.
Lord Mishcon: May the gratitude be reciprocated from this side of the Chamber to the noble Lord the Minister. He has been most gracious and I am glad that we have at an early stage succeeded, for a second time now, in improving this Bill.
Amendment, by leave, withdrawn.
5.8 p.m.
Lord Gifford Lord Gifford moved Amendment No. 5:
Page 2, leave out line 36.
The noble Lord said: with this amendment it may be convenient to take also Amendment No. 7 because both amendments deal with the provisions in the Bill by which offensive weapons are included as a category of article to which the stop and search powers apply.
Amendment No. 7: Page 3, line 10, leave out subsection (9).
My amendment seeks to delete offensive weapons from the Bill.
Let us first of all be quite clear that the power introduced in the Bill for the police to stop and search people on suspicion that they may be holding offensive weapons, is a new power. It does not exist at the moment. It needs to be justified. The benefits that it will bring must be balanced against the detriments which it will cause. It is that balance which I will be submitting is not weighted in favour of a change in the existing law.
Let me say at once that the carrying of weapons for aggressive purposes is wholly unacceptable. We have the Prevention of Crimes Act which makes it an offence to carry such weapons in a public place. There are some circumstances, it has to be said, where one has the greatest sympathy with those who carry a weapon for a purely defensive purpose, such as a woman walking in an area where there have been rapes or a member of a minority group in an area where there have been severe racial attacks. Not every carrying of every weapon must be viewed with the same standard of censure. But, of course, there is a problem, and it must be confronted. It is that weapons are carried as offensive weapons. That should emphatically be regarded as a crime.
At present those who carry offensive weapons commit a crime, and they are frequently arrested. There are two circumstances, in particular, when they are arrested; first, when the weapon is being carried openly and the officer therefore sees that it is being carried and can arrest the carrier; and, secondly, when weapons are used in fights and police come on the scene and arrest the users, or threatened users, and charge them with carrying an offensive weapon. All that is part of our law. There is some qualification on the right to arrest which I understand is being removed by a repeal at a later stage of the Bill.
The new power therefore is for a different purpose. It is to stop and search those whom the police believe may be carrying concealed weapons. That raises completely different considerations. It is impossible to know whether someone who is carrying a concealed weapon is carrying it because it is concealed. Therefore, the fear, or rather the certainty—here we come to the detriment side—is that this power will be used against types of people in types of situation where this fear is expressed by the police. One example given
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to the Royal Commission was football crowds—the fear that young people going to football matches might be carrying weapons. So far as they are concerned, there is no need for this power in the Bill. Many football clubs, I understand, in co-operation with the police, do not let young people into their grounds if they are carrying offensive weapons or if they do not co-operate with the police. A football ground is a private place where the football club can exercise its own controls with the co-operation and aid of the police.
Other types of people who will be the subject of the stop and search power are likely to be those who are thought to be of a group or of a type who may carry weapons—a gang of people. For the moment, it does not matter whether they are white or black, although I fear particularly for those who are black. Therefore, a lot of people are going to be stopped. In order to consider whether we should have this power, we must look at the experience with the existing power to stop and search for other causes. That experience is very chilling. First, it tells us that the existing stop and search powers for drugs and stolen goods are used very widely. Figures were given in a parliamentary Answer on 27th July 1983 for one metropolitan district alone—E District in Camden—showing that between 1979 and 1982, between 24,000 and 32,000 people were stopped a year of whom 8 to 9 per cent. were arrested as a result of the stop. Those are the same kinds of figures that were produced by my noble friend Lord Elystan-Morgan.
Those percentages are reflected in nearly every study that has been made, including the Home Office's own study made by Miss Carol Willis in which it was found that, in Kensington and Peckham in London and in Watford and Luton outside London, 8 per cent. in London and 2 per cent. outside London were the subject of prosecution after being stopped. Among all the other people who are stopped without having done anything wrong and without carrying anything illegal, there will be resentment and alienation in different degrees. The study, quoted by the noble Lord, Lord Hooson, made in Hillingdon shows this. That is on the detriment side. The more there are of these powers, the more young people particularly will be caught in them. In the Hillingdon study, it was found that 52 per cent. of the sample of juveniles between 14 and 16 had the experience of being stopped and questioned or searched by the police. So the first detriment is conflict and alienation.
The second detriment that I fear is a considerable amount of injustice to the innocent. So far as offensive weapons are concerned, the definition is given in Clause 1(9) of the Bill. Offensive weapons are not just weapons that are obviously made for causing injury. They are articles
"intended by the person having it with him for such use"—
that is to say, for causing injury. Once someone has been stopped and found to have something in his possession that could be an offensive weapon—the kinds of articles that have been alleged to be offensive weapons and found in the past to be offensive weapons include African combs, bunches of keys and the tools in a motor-car—the temptation of the officer who has made the stop is to assume that the article that he has

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found was carried with the intention of its being used as a weapon. The sort of questions that will be asked are illustrated in a case recorded by the National Council for Civil Liberties where a workman carrying tools in his car was asked, "Would you use this tool to defend yourself if attacked?" That is a very difficult question to answer. Many honest people, if carrying a tool and asked if they would use it on being attacked, may answer, "Yes". They immediately lay themselves open to the possibility that they will be suspected of carrying an offensive weapon to injure someone and then have to go through a trial and seek to resist the prosecution on the grounds that they had not the intention required by law.
Finally, on the detriment side, there will be abuse. I was glad to hear the noble Lord, Lord Elton, accept that there has been misuse of the stop and search powers that exist already in the law. It is almost inevitable that there has been, and that there will be. It is so easy a power to use and therefore to misuse. It is much more serious to abuse the power of arrest because all sorts of consequences follow. The man or woman has to be taken to a police station. That has to be recorded. There is the possible danger of a false imprisonment action and that the station sergeant will get on your back if you have not got the grounds, et cetera, whereas stop and search that takes place in a matter of a few minutes in the street is so easy to abuse. That is all on the detriment side.
Let us look and see what benefits this new power will give. I shall, of course, listen with care to what the noble Lord, Lord Elton, says. It will be said that no doubt, in some cases, even if it is only the normal 8 or 10 per cent., weapons will be detected that are being carried for an illegal purpose. One has not only to balance that as a benefit against everything that I have said. One must also consider whether there are not other means by which the use of such weapons can be prevented. If the police see a gang of youths, 10, 20 or 30-strong, going down the street and they think that they may have knives in their pockets, one way of dealing with it is to use the stop and search power, to stop and search the lot of them, and so cause a great deal of aggravation, tension and conflict and possibly use a great number of officers.
The other thing to do is to keep an eye on them, to follow them discreetly, and to alert other police officers that they are in the vicinity and if it is clear that they are going to fight, to arrest them. But if, in fact, they are just a group of young people leaving a football ground or a cinema, and quite innocently dispersing to their own homes, then there will be no cause at all to intervene. There are other ways of dealing with the danger to public order of people who are thought to be carrying weapons than going in with legal powers which require the exercise of force. This is often a very unnecessary and damaging way of exercising police powers.
For all those reasons, I submit to the Committee that this new power needs far more justification than anyone has given it; is not, in fact, necessary; will cause conflict and injustice; will be abused; and the dangers are not worth running for the sake of the benefits which can be secured in other ways. I beg to move.
5.22 p.m.
Lord Inglewood: I was astonished to hear some of the things which the noble Lord, Lord Gifford, has just been saying. I thought he was very naïve and altogether too innocent at a time when most of us would believe there is much carrying of knives and other weapons on the streets of London. I do not know how the noble Lord would feel if he and his friends were out tonight in uniform and if he saw a knife blade, or if he had had knife wounds before and was wondering what was going to happen the next time. He might also be wondering whether his wife, too, was going to be widowed.
The problem that we have to face in London is a very serious one. It is not easy to define what is an offensive weapon. Every one of us has in the kitchen of our home a good knife, and any member of the family could pick it up, put it in his pocket, and go. I believe there are a great many young men who like carrying a weapon of some sort, because it is partly smart, or partly manly, or partly self-defence. It is a problem to which, at the moment, we have not got serious answers.
I should like to see all these amendments being withdrawn, and, if necessary, looked at again. I could not think of supporting amendments like these, which would expose all constables, those supporting them, and others, to people who frequently are out on the streets with weapons and are intending to use them.
Lord Milverton: I, too, feel I could not support this amendment. It must be made clear to all people, whatever their creed, whatever their colour, whatever their group, whatever their culture, that we do not have any time for any person who carries an offensive weapon. If a person is carrying an offensive weapon, the question is, "Why?" Invariably it will be because he is prepared to use it. No, I could not go along with this amendment.
I believe that instead of helping the police we are in danger of doing the opposite. It must be made clear that there are many of us who will not stand for the sort of thing that my noble friend Lord Inglewood has been talking about—the impression among young people that because someone carries an offensive weapon he is a great big he-man. We will not stand for it. Those of us who have children, who have daughters, feel very strongly about this. No, enough is enough.
Baroness Hornsby-Smith: There is not a Member in the whole of your Lordships' Committee who is not appalled by the increase in crime, particularly amongst younger people, over the last 10 years and indeed in more recent years, involving young children who can only be put into care. According to reports, they have committed brutal attacks on elderly and old people, who seem more and more to be the victims.
I cannot reconcile the comment of the noble Lord, Lord Gifford, that in private premises like a football ground it is all very fine that people should be searched for offensive weapons. The majority of people who go to a football game are fit and healthy. What about the old ladies who are clobbered going into their flat in a fairly lonely street, or returning from the post office with their weekly pension? Surely to goodness our job

819
is to prevent crime and not wait until it is committed and then try to find the criminals.
Lord Elystan-Morgan: The Committee has heard powerful speeches for and against this amendment. As I understand it, the issue, very shortly, is whether "offensive weapon" should, for the purposes of this Bill, be limited to weapons offensive per se, or whether it should be a wider definition and include not only weapons that are offensive as such but also anything that is adapted for use as an offensive weapon—something that in itself is inherently innocent but which, due to the motivation of the person carrying it, is automatically converted to the status of an offensive weapon.
I for one—and I am sure that in this I speak for my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Mishcon—find that the argument is not as straightforward as, with the greatest respect, any one of the speakers who preceded me have suggested. The argument for the wider definition is a very clear one. In the Prevention of Crime Act 1953 the two limbs appear. Section 10 of the Theft Act 1968, in its definition of aggravated burglary, dealing there with a weapon of offence, employs again, by analogy with the Act of 1953, very much the same definition—either a weapon that is a weapon of offence as such or a weapon that is a weapon of offence by motivation.
Although I have not statistics to prove it, the general impression I have is that the vast majority of injuries caused by weapons of offence are caused, not by weapons that are weapons of offence per se, but by weapons of offence carried for that particular purpose. Therefore, there is a clear argument for the wider definition.
But to my mind the argument for the narrower definition is also a substantial one. It is this. Where a police officer has to decide whether or not a weapon is an offensive weapon, if the definition were the narrower one it would be a very simple task. He would use his eyes; he would use his experience; he would ask himself, "Is this"—I almost said, "a dagger that I see before me?" He would ask himself, "Is this a flick knife that I see before me?" If the answer is, "Yes", there it is; it is, per se, a weapon of offence. No value judgment is necessary.
But what if what he finds in the vehicle is not a flick knife or a dagger but a rounders bat, or a cricket bat, or a metal comb? It opens a wide vista of doubt and uncertainty. It is the very width of that area, and the depth of that area of uncertainty, that contains the further potential for fomented relationships between police and public.
Everything that I say has been said, and, in my submission, said very much better by the Royal Commission, at paragraph 3.21 of its report. We are not given the figures for the way in which the membership of the commission divided upon this matter. The words of the commission are:
"Some of us consider that because of the wide range of articles that can be classified as 'offensive weapons' and the necessity to prove intent, this extension of the stop and search power brings with it a risk of random and discriminatory searches, which can further worsen the relationship between the police and young people, particularly black youth.".
820
However, in the end, the commission, by a majority, came down in favour of the wider definition and they justified their choice in these words:
"The police have a duty to protect members of the public from violent attacks. If there is imprecision in the definition of the offence, the remedy for the difficulty perceived by our colleagues lies in removing that imprecision rather than in refusing the police the power to search".
With the greatest respect, I do not agree with the reasoning of the Royal Commission. It is not the imprecision in defining the offence that is the evil. I do not believe that we can define the offence better than it has been defined in the 1953 Act and the Theft Act 1968. The imprecision lies in the very nature of the complicated exercise that we impose upon the police officer.
It is for that reason that my colleagues and I, with a feeling of humility and of uncertainty in the matter, say that on the whole we believe that it would be better to have a narrower definition. All the powers in relation to the arrest of persons carrying offensive weapons which exist under the 1953 Act would still remain.
Lord Hutchinson of Lullington: On behalf of those who sit on these Benches, I should like to add that we agree with what has just been said. It was a great relief to hear the tone in which the noble Lord, Lord Elystan-Morgan, put forward his views, because I think that we have all agreed that we do not want to conduct this Committee stage on an emotional basis.
I should like to support the amendment from practical experience and on very much the same basis as that which the noble Lord, Lord Gifford, has put forward. Those of us who are involved in the criminal courts are involved on both sides. There must be innumerable occasions upon which I, personally, have prosecuted people for being in possession of offensive weapons. It is not an emotive matter. The trouble is that the definition of an offensive weapon is extremely complex. There is no way in which a police officer can have a reasonable suspicion that an article that he believes is in somebody's possession will be used with intent to injure someone unless, of course, it arises from the circumstances which he sees. Otherwise, it is really almost a contradiction in terms to ask a police officer to have an honest, reasonable belief in relation to a man who is walking along a street and is in possession of a nail file, or whatever it may be, that that man will have this intent. It is far too complicated for a police officer to be expected to do that.
I know that the noble Minister has avoided, and will continue to avoid, the point that I made on Second Reading and that I have already made again in Committee. I am referring to the question of the reasonable suspicion arising from a person's record. If one combines the possession of an article which, on the face of it, is harmless—and many lists have already been given—with the knowledge that the person in whose pocket it is contained is someone with a previous conviction, then one throws open wide the power to arrest almost anybody in certain areas. If we combine those two thoughts, then an officer could say, "I know that that fellow walking along the road" (whatever his colour may be) "has had a conviction for

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violence of some kind", or for assault, or something more serious. "I bet", or "I have seen", or "I have reason to believe because someone else has told me"— that is, somebody who wants to get this fellow into trouble; in other words, an informant —"that he has in his pocket some scissors which he is going to use later on; and so I can go up to him because of his record and because of what I have been told". That situation will give rise to infinite trouble, infinite harassment, infinite fears and infinite problems, and that is surely what we all want to avoid, although we want to protect the public as much as anybody else.
I submit for the consideration of your Lordships that this definition is far too complicated and that, in addition, there are defences which the lawyers will appreciate and which the laymen will also appreciate because it is common sense that, if one is charged and it is suggested that one's scissors or one's nail file is an offensive weapon, one can put forward various defences. For example, one could say that one had it for a lawful reason or for a good reason, or that, as has been said, one was frightened because one had been threatened, and so on. How on earth can a police officer resolve that type of question on top of the complication of the definition? For those reasons, I would urge the Committee to support the amendment.
Lord Harris of Greenwich: I should like to speak for the first time on this Bill. That being so, I will do my best not to make a Second Reading speech, which I am sure Members of the Committee are relieved to hear. I should declare an interest at the outset in that I am a trustee of the Police Foundation. I do not propose to say that on every occasion as regards every amendment, but I declare it now so that it is part of the record. That being so, it did not seem to me appropriate that I should speak in any way as a party spokesman during the Committee stage of this Bill, and I speak therefore now, as I shall for the rest of the Bill, entirely for myself.
I am entirely opposed to this amendment, and I propose to vote against it. I propose to vote against it partly for the reasons given by the noble Lord, Lord Inglewood, a few moments ago. I draw on my experience, not as a Home Office Minister but as chairman of the Parole Board. I am particularly glad that the noble Viscount the Leader of the House is present, because I suspect that he will have taken a similar view following his experience as Home Secretary.
What became increasingly obvious to me as chairman of the Parole Board was the increasing number of young men who went out with their friends carrying knives. When they put the knives into their pockets they did not necessarily intend to use them. But very often they went to a pub, a disco or something of that nature; they drank far too much; and later that night they became involved in an argument with somebody —somebody they had probably never met before in their lives —and at some stage they stuck their knife into the person concerned, sometimes causing his death. That is a fact. It is also a fact that there is an increasing number of young men who do just that.
I certainly do not have the benefit, like my noble friend Lord Hutchinson and others, of a substantial
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experience at the Bar. All I can say is that in those circumstances, and given the recommendation of the majority of the Royal Commission —and unlike the noble Lord, Lord Elystan-Morgan, I tend to agree with the majority of the Royal Commission on this matter —it is, in my view, wholly reasonable that this power should be on the face of the Bill.
I shall come to the argument put moderately and persuasively by the noble Lord, Lord Gifford, when he proposed the amendment. He said that if we do not have this amendment there is a danger of alienation. Indeed, there is such a risk —of course there is. The police could in the future, as now, sometimes misuse their powers; that is undoubtedly true. But we also have to bear another matter in mind, and that is whether the majority of our fellow citizens, at a time when they are preoccupied with increasing levels of violence, would think that Parliament was behaving reasonably if it denied the Government the powers which are contained in this clause. I do not believe that they would regard us as behaving reasonably, given the degree of serious public anxiety which in my view is justifiably raised by this issue.
The noble Lord, Lord Gifford, then came to the football ground argument. He said that there is no real problem as regards football grounds —and I hope that I do justice to his argument —because football grounds are private property and many football clubs insist on searching, or allowing the police to search, people when they arrive at the ground on a Saturday afternoon. Therefore, there is no problem because the search can take place on private property.
However, with great respect to the noble Lord, Lord Gifford —and I say this as a supporter of Chelsea football club, which I fear has a particularly unenviable reputation in this regard (my noble friend, Lord Hutchinson, is rather shocked at that admission and I apologise to him and to the Committee for admitting it) —one of the problems about football ground violence is not what happens in the ground, it is what happens outside the ground. That is the problem. The scale of violence in the streets surrounding some of our largest football grounds in this country is deeply disturbing. In my view, to say that there is no problem because a search will take place at the ground, simply ignores the reality of the situation.
I could continue the argument, but I hope that I have put it as moderately and reasonably as I can. As I have indicated, for the reasons that I have put forward, I propose to vote against this amendment.
5.42 p.m.
Baroness Macleod of Borve: I am very pleased to be able to follow the noble Lord, Lord Harris of Greenwich. I served under him as a member of the Parole Board, but it is perhaps my experience of 30 years adjudicating as a magistrate on which I draw, and I am particularly keen that this series of three amendments should not go forward. For years and years I have wanted this part of the Bill to be enacted because, as all noble Lords know from the press if not from their own experience, more and more young people are carrying offensive weapons and more and more older people are carrying offensive weapons with

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intent to rob post offices, with intent to burgle and with intent to injure other people. Perhaps I might draw noble Lords' attention to subsection (9) of Clause 1 on page 3 of the Bill which defines an "offensive weapon" as an article "for causing injury".
As the noble Lord, Lord Harris, said very eloquently, not all people go out taking an offensive weapon with them with the intent to cause injury, but injuries are caused, not only because some people lose their tempers but because they have too much to drink. The number of people who have been killed —and I am talking of children; and probably we do not know of them in your Lordships' Committee —is too many. The Home Office will know the statistics. They are the people who are being killed as a direct result of young people carrying offensive weapons. They stab and they kill.
I agree with the noble Lord, Lord Gifford, that this is a stinging nettle, but it is high time that this stinging nettle was grasped and that something was done to deter people from going out armed with offensive weapons. I think that this Bill does it.
Lord Donaldson of Kingsbridge: I very much hope that the noble Lord, Lord Gifford, will not press his amendment but will give us time to think about it further. I have never heard a series of more contradictory remarks from this House, nearly all of which are difficult to refute. This is an extremely difficult situation. Clearly, we do not want young men to roam about the streets carrying knives —no one would want that. Therefore, to that extent, in so far as a knife is a recognised offensive weapon, we are all right.
However, when it comes to substitutes for offensive weapons. which are made into offensive weapons by the intention of the persons carrying them, we find ourselves in an area of the law which lawyers may understand but which I certainly do not. I hope that the noble Lord and his noble friends will withdraw this amendment now and introduce something which is clearer at a later stage. All the noble Lord has done is to take something out. I think that we must put something in as well. I very much hope that that will be the noble Lord's decision.
Lord Plant: In my view, to take out this important part of the Bill will make for confusion, and I believe that the public and the police will be very upset indeed and wonder how it is that we are getting into a position where we are not saying anything about the carrying of offensive weapons. I shall certainly vote against this amendment.
Lord Elton: Perhaps I might intervene at this stage and try to bring the debate together. The noble Lord, Lord Gifford, will correct me if I am wrong, but I understood that he was grouping Amendments Nos. 5, 6 and 7. However, I think that he has addressed himself to Amendments Nos. 5 and 7.
Lord Gifford: Yes, I have, and I should like to speak shortly but separately on the other question of articles which have to do with theft.
Lord Elton: The pleasure with which we look forward to that will be heightened by the word "shortly" in the noble Lord's remark. The debate has turned on three issues. Behind it all and I suspect behind all the debates on this clause and perhaps on many others, is the aggravation which we are anxious to avoid at the points where there is contact between the police and suspects. I do not want to weary your Lordships with a recitation of what is already in the Bill to alleviate that danger. I have spoken of it twice already on two major amendments, and some of your Lordships have been kind enough to say that one part of what we propose, which is the introduction of guidelines, is very reassuring. It is worth bearing in mind that the aggravation which causes noble Lords, such as the noble Lord, Lord Gifford, to table this sort of amendment will not be the same after this Bill is implemented as it now is. I say no more on that aspect.
The second point to make about the amendments to which the noble Lord has spoken is that there are two of them and he addressed them separately. The first was to take all forms of offensive weapons out of the Bill and therefore out of the power of a constable to search for them. That was greeted with justifiable incredulity by some of my noble friends and by noble Lords, such as the noble Lord, Lord Harris of Greenwich, and others sitting on the other side of the Committee. On that I should say that the powers are not new and there is a very strong case for conferring them. As the noble Lord, Lord Gifford, has said the possession of prohibited articles in a public place is already an offence; and I remind the Committee that the Royal Commission expressed its recommendation as follows:
"If Parliament has made it an offence to be in possession of a particular article in a public place the police should be able to stop and search persons suspected on reasonable grounds of committing that offence".
At present, if a police officer suspects a person in a public place of carrying a prohibited article —say, an offensive weapon —he may arrest the person for the offence of carrying an offensive weapon if the person fails to give his name and address or if the officer believes arrest is necessary to prevent the use of the weapon in an offence. That will still broadly be the position under the new arrest scheme in Part III of the Bill and that power is, as I say, not used. But it seems to us, as it seemed to the Royal Commission and as it seemed to the noble and learned Lord, Lord Scarman, in his report on the Brixton disorders, that there should be another less drastic power, short of arrest, which can be used quickly to confirm or disprove the officer's suspicion. An officer who has reasonable suspicion of this sort must act. If he does not, he would be failing in his duty to protect the public. I am sure that noble Lords opposite will agree with that.
However, the effect of the noble Lord's amendment would be to force him to fulfil that duty, either by arresting the subject or, as the noble Lord suggested (in I imagine parenthesis), following him about all night to see whether he commits the crime. What this clause, as drafted, does is to allow him to do something less intimidating than arrest and something which would normally take less time. This clause, together with Clauses 2 and 3, ensures that he does it properly regulated and supervised and that he is accountable for it.

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The arguments for a power to search for offensive weapons are I think obvious. The carrying of such weapons is a very dangerous practice. There may be argument about the detail of the definition of the term "offensive weapons" but there can hardly be doubt that the power is needed and will be useful in deterring the carrying of weapons. I really rely on my noble friend Lady Macleod of Borve rather than reciting further reasons for this.
I do not think that I ought to have too much trouble in convincing the Committee that a need for specifically offensive weapons to be in the Bill remains, and I take it that what the noble Lord, Lord Elystan Morgan, needs persuasion on is the others, where he thinks there should be a limit on the definition. The noble Lord, Lord Gifford —and that is Amendment No. 7 —has suggested that if offensive weapons must be included, the subsection should refer only to offensive weapons per se. The Prevention of Crime Act 1953 creates the offence of carrying such a weapon in a public place. To limit the power in the Bill to weapons which are offensive per se would impose an artificial and I think dangerous limitation on police powers.
It would be artificial because Parliament has already decided that the offence should cover not only flick knives or bayonets, which are obviously offensive weapons per se, but also, for example, razors or bicycle chains intended to be used to cause injury by the people carrying them but intended for shaving and riding bicycles by the people who made them. The limitation would be potentially dangerous for simple reasons. In many cases where a police officer reasonably suspects that an offensive weapon is being carried he will not know whether it is offensive per se or not. He does not have X-ray vision.
He cannot see whether the bulge in the pocket is a kosh (which is offensive per se) or a stick of Brighton rock, which is the same shape and size. In such cases the limitation proposed would not in fact affect the power to search. There would still be reasonable grounds for suspecting that an offensive weapon per se was being carried. But where the police officer did have reasonable grounds to suspect that a weapon was being carried, intended for use, which was not offensive per se, the power to search would not exist.
What of the constable on a dusky night who sees a large and menacing figure emerging fairly steadily out of a public house in which brawls are common into a street which is full of people with whom he may have differences, slipping something shiny into his pocket? That is exactly the position we are putting the constable in. He cannot know whether it is going to be offensive per se or not until it has been taken out of the pocket and shown to him.
Where the officer had reasonable grounds to suspect a weapon was being carried, intended for use, which was not offensive, the power would not exist, and that could happen where it was known that a particular gang made a practice of going around with pepper pots, for instance, and throwing pepper into the eyes of ladies whose handbags they wanted to snatch, or who favoured a particular kind of razor. It does not matter to the victim of an attack whether the weapon that caused his injuries was offensive per se or not. What
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matters to the victim is that the injuries have been caused.
It is just as important to protect the public from injury from bicycle chains as it is from blackjacks; from razors, which can do as much damage as knuckle dusters. We all know that virtually any article can be used to cause injury, but the idea that we are liable to be lawfully searched at any time is, as I sought to say earlier, fanciful. I do not believe that the risk of arbitrary or unreasonable searches under the provisions which we propose in this Bill is such as to justify confining this useful power to offensive weapons per se. I am certain that every single person who has been set about with a bicycle chain or a broken bottle, or any other adventitious weapon, carried with intent but not designed for that purpose, would be in the Lobby with me if they were entitled to vote.
Lord Gifford: This has been a serious debate conducted seriously by everyone who has spoken. I hope I made it clear —and I say this particularly in answer to the noble Lord, Lord Inglewood —when I moved this amendment that I did not do so in ignorance of the real fears that people who have been, or may be, attacked in the street live under. Nor do I move it —and I say this about any amendment that I move —in any spirit of being anti-police. I am only anti-laws which give the licence to irresponsible or bad police to abuse them unless there are safeguards.
Having said that, I am willing to respond to the appeal which the noble Lord, Lord Donaldson, made that this amendment should be withdrawn for further consideration. I am impressed particularly by two matters. First, as my noble friend Lord Elystan Morgan indicated, there may be a middle way by which we can limit the power to stop and search for offensive weapons without altogether leaving it out of the Bill. At present I think I am right in saying that my amendment seeks to delete reference to offensive weapons from the Bill altogether. There is not before the Committee an amendment which goes along the middle way that my noble friend indicated, and that is something we can consider for another stage.
When we reconsider it —and this is my second point —I hope that we shall have available at least a first draft of the code of practice. The agreement to introduce this code of practice has been a major step forward. It will be difficult to take final decisions about matters like this on Report stage unless we have a first draft. One knows that in these matters they go through successive drafts, and it may be that this House on Report can improve on the draftsman's imagination if we have some fruits of his first labours when we come to this on Report. We can then see how it is proposed that this new power —and it is a new power —should be exercised.
I hope that the noble Lord, Lord Elton, is right when he says that there will be less scope for abuse under the new law than there was under the old. Before moving from this amendment, I wish to make a plea that the use of these powers to stop and search be a restrained use; be used from time to time when the circumstances warrant it, and not be used, as they seem to be at the moment, as some kind of general probe through the

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pockets of people who happen to be about the streets in particular areas at particular hours.
Lord Elton: As this is Committee stage, and the noble Lord is kind enough to allow me to intervene, I want to emphasise with the greatest emphasis at my command that one of the main purposes of the Bill is to stop this sort of abuse of police powers, to bring it under control. Not only is there to be a code of practice; not only are there requirements in Clause 2 of the Bill which are themselves efficacious; they will not only bite on the behaviour of the constable actually on the spot when he is doing the search but they will enable his supervising officer to see what he has done in every case, to detect the different practices of different constables, and for senior officers to detect the different practices of constables at different police stations and police districts. That is why we are legislating. The noble Lord can be reassured at least on that point.
Lord Gifford: I wish I could be so reassured. What is needed is not a change in the written terms of the law, it is a change of attitude on the part of those who enforce such laws as there are. I accept that that change of attitude may be effected by a code of practice which reflects the consensus of opinion as to how these powers should be used, and that is why I am so anxious that all the codes of practice should be before us. It is not enough just to change the law and produce the paper safeguards; it needs a change of attitude. Having made that plea and that point, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Gifford Lord Gifford moved Amendment No. 6:
Page 2, line 36, leave out from ("weapon") to the end of line 9 on page 3.
The noble Lord said: This focuses on the definition of a different kind of prohibited article: that which is used for either burglary or theft, taking motor vehicles or obtaining property by deception. In this case this is very much a probing amendment, and one which I do not wish to press to a Division. It seems to me that we have the same problem: that this power can go too wide. I am not so much worried by articles which are designed for use in burglary or theft, for there is already an offence of going equipped to steal and various people wandering around the streets at night with jemmies in their bags are, I believe, stopped, questioned and arrested by police officers, and rightly so. But when we bring in offences of obtaining property by deception and taking motor vehicles, one fears that keys, credit cards, cheque books and all other kinds of innocent articles might easily be suspected of being prohibited articles.
This power could be overused. It may be a matter which the code of practice would clarify; but I should like to have the Minister's present thoughts about the scope of this power and how it will be used. I beg to move.
Lord Elton: There is a need for this power to search for other kinds of prohibited articles than those which
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we discussed earlier. Housebreaking implements come first to mind, and these arguments are just as strong. A police officer on patrol sees somebody looking round one, two or three houses in a street, studying the locks or looking at the windows, perhaps. He must take steps to follow up his suspicion that the man is sizing-up the house to burgle. He can ask him questions. That requires no power, and it may resolve his doubt. But if it does not, then his only power at present is the power of arrest. Again, what we want is something less draconian. Where the person searched has on him housebreaking implements, then an arrest may follow; but if what he has in his box bears out the fact that he is a painter and decorator looking for a job, the matter is different. The man is innocent; and should the officer have had to rely on the power of arrest and been forced to exercise it prematurely, his suspicion will turn out to have been not well founded.
The power to stop and search would also be useful in cases of suspects obtaining property by deception. Suppose that a person tries to use a forged credit card in a shop. The assistant calls the police, but the person leaves the shop before they arrive. The assistant gives a description of the person, and if an officer comes across a person answering that description shortly afterwards he ought to be able to test his suspicion without resorting to arrest and discovering whether he has that sort of card. Again, that has its own deterrent effect in that the knowledge of the power in itself reduces the offence.
As to any other reassurance that the noble Lord wants, I believe I have given it almost ad nauseam already. I must ask him to read it.
Lord Gifford: I am grateful for that further clarification. This, again, seems to be a new power which needs to be justified, and I wish to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 7 not moved]
Clause 1, as amended, agreed to.
Clause 2 [Provisions relating to search under s.1 and other powers].
6.5 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 8:
Page 3, line 23, leave out ("need") and insert ("shall").
The noble Lord said: The wording of Clause 2(1) at the moment is:
"A constable who detains a person or vehicle in the exercise—

(a) of the power conferred by section I above; or

(b) of any other power—

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

(ii)to search a vehicle without making an arrest,"

and then there follow the words:
"need not conduct a search if it appears to him subsequently—

(i)that no search is required; or

(ii)that a search is impracticable."

The effect of the amendment, if carried, would be to substitute the word "shall" for "need" in relation to the conduct of that search.
There are two matters which come to mind, and the first is in relation to the word "subsequently". It

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appears that what the provision is saying is that if, with the benefit of hindsight, in the light of information later received or some conclusion later arrived at, the police officer comes to the conclusion that no search is required or is practicable, then he need not search. But it appears to me that by then he will have searched. It will be too late. So it would seem that on the face of it the way in which that provision has been drafted gives rise, at the very least, to a seemingly mild absurdity.
But the amendment is directed to another point. If the officer has come to the conclusion, assuming that he still has not searched, first, that no search is required, or, secondly, that a search is impracticable, why leave it an open question whether or not he should search? Why not make it mandatory that he should not search? In other words, if it is not necessary or if it is impracticable, why not have the provision, "he shall not search"? I do not think the argument will be improved by repetition, and as far as I can see those are the basic matters at issue. I beg to move.
Lord Hunt: I should like to voice my support for the amendment, to which I have put my name on the Marshalled List. The clause as drafted performs a useful function. It reminds us—I think some people need to be reminded—that stopping and searching are not an integral part of an inseparable operation. There are two stages: the stopping and then, if necessary or desirable, the searching. There is no doubt that of the two stages in that operation the greater inconvenience, the greater ill-feeling, the greater loss of dignity, is incurred by proceeding to the search. It may be obvious to say that, but it needs to be said and we need to bear in mind the events that went on prior to the riots in Brixton; the record of them made by the noble and learned Lord, Lord Scarman; and (if I may add a personal note) the evidence I have obtained from a service with which I have had long close connection and which is at the coalface of public feeling in relation to young people in particular—the probation service.
Some of your Lordships may have seen a letter signed by, among others, the chairman of the National Association of Probation Officers in The Times today. I echo the sentiments in that letter. It seems to me, therefore, that it is a valuable provision that there should be recorded in the Bill this opportunity for a constable to pause and reflect, to speak to the person or persons concerned, whether they are on foot or in a vehicle, and to satisfy himself on the range of possibilities whether it is necessary or desirable to proceed with the search.
I have very little else to say except that we need to bear in mind the statistics, which are incontrovertible, of the failure to find anything on the many stopping and searching operations that have been carried out, particularly in London. There is a 90 per cent. plus chance that nothing incriminating will be found on the person concerned. When one is trying to find a balance between the absolutely necessary support for the forces of law and order, the rights and feelings of the public and, most important of all, the relationships between the police and the public, which are extremely sensitive in this area, rather than give a sort of mild suggestion through the word "need"—that the constable "need" not proceed—it is highly desirable to put it in the negative imperative that he "shall" not,
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unless after talking he really is, on the balance of probabilities, satisfied that he should proceed with the search. I therefore support the amendment.
Lord Elton: This amendment is one of those that has considerable appeal at first blush and the case both for and against it rests on what I call lawyers' arguments. I think on closer inspection that I actually prefer the Bill as it is and I shall try to explain why.
First, there is no disagreement of substance between any of the noble Lords who have spoken on this matter and the Government. It is certainly common ground that an officer who detains someone on reasonable suspicion for the purposes of a search and then concludes, perhaps because the person has offered a satisfactory explanation, that no search is necessary, should not then search him. For example, if an officer detained someone he found leaving commercial premises at night carrying a bulging bag in order to search it, but before he did so the person was able to show to the officer's satisfaction that he was the owner of the shop he was leaving, it would be clearly unacceptable for the officer, having decided that a search was unnecessary, to conduct it anyway.
I can see why the use of the word "need" might give the impression that the officer had a discretion in this matter which he could choose not to exercise. In fact, as I hope the noble and learned Lord will agree—it was not the noble and learned Lord who moved the amendment but I hope all noble Lords will agree—in such a case the officer would cease to have the reasonable grounds necessary to justify a search and so it could not lawfully be made. Therefore, the effect of the Bill is that he shall not make the search.
Your Lordships will now ask why on earth we do not put "shall" there and I must say that I do see why your Lordships should ask that. In fact, the term "need" is the better term and it takes the trained eye to detect this. It brings out more clearly than "shall" the point underlying subsection (1), which is that a detention for the purposes of a search may be lawful and proper even though no serach in the event takes place. In other words, a search need not take place for a person to be detained for the purposes of a search. The constable need only search him if, after being stopped, his suspicions are not allayed. Looked at that way I think the present working does reflect our intentions better to the inquiring eye than what the noble Lord asked for as well as leaving the effect which all of us want in the Bill.
I hope I have transmitted to your Lordships with more enthusiasm than a mere layman would normally summon what I understand is a very valid and genuine point because it is a matter for the experts and I believe that the experts are right.
Lord Donaldson of Kingsbridge: I think the noble Lord is right. We need a lawyer to put a little enthusiasm into this. I do not know whether we shall get one. It seeems to me that the explanation is the lamest I have ever heard.
Lord Elystan-Morgan: This amendment, as the noble Lord the Minister divined, should have been moved by my noble and learned friend Lord Elwyn-Jones, who is not here but will return very shortly. In

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moving it, I felt that there was a strong case for the substitution of the word "need" by the word "shall". But when I heard the noble Lord the Minister all such doubts as might have resided somewhere in the far corners of my mind were immediately banished and it seemed to me that what the Minister has put forward is an utterly unanswerable case for the use of the mandatory "shall". The expression "need" not do something can never be mandatory and it does not matter whether one is a lawyer or a layman in this Committee. The noble Lord, for all his massive powers of persuasion—great, noble and splendid though they are—would never, I fear, be able to persuade us on that account.
Lord Elton: The noble Lord is kind to ease my path to the Dispatch Box by the use of flattery. I wonder whether, in the light of what he and other noble Lords have said, he will allow me to take this matter away so that I can go for further persuasive arguments to deliver, and possibly legal assistance in delivering them, at a later stage. It may be that the arguments are less persuasive than I think but I will consider before the next stage what he has said.
Lord Elystan-Morgan: I am most willing to accede to that charming suggestion and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 9:
Page 4, line 8, leave out subsection (4).
The noble Lord said: It might be for the convenience of the Committee if I take with this amendment, Amendments Nos. 14 and 15.
Amendment No. 14: Page 5, line 8, leave out ("unless it is not practicable to do so").
Amendment No. 15: Page 5, line 35, leave out from beginning to ("the") in line 36.
I think I can put the point at issue fairly concisely. The Committee will most likely remember—
Lord Elton: Will the noble Lord forgive me? I was advised that Amendments Nos. 14 and 15 were grouped with Amendment No. 13. I may be wrong, but if I am right does the noble Lord intend to take Amendment No. 13 with Amendments Nos. 14 and 15 when speaking to Amendment No. 9?
Lord Mishcon: I am afraid that the noble Lord the Minister has been wrongly advised because Amendment No. 13 deals with,
"a hat…headgear or head covering, except one customarily worn for a religious purpose."
That forms no part of my argument whatever.
Lord Elton: That is my mistake.
Lord Mishcon: The noble Lord has admitted it graciously.
As I said, I think that I can put this point fairly concisely. The Committee will remember that the noble and learned Lord, Lord Denning (caught unusually with a wavering mind) said that, when he
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was trying to consider the question whether a constable should be in uniform or not when carrying out the stop and search procedure, he had been persuaded in the end on just a small matter of balance to think that we should keep in that provision as it was originally drawn in the Bill because of the safeguards that were later contained.
One of the greatest safeguards is the necessity under the Bill not just to give the name of the constable, his number and his station, but to make a record of the incidence of the stop and search. The Bill goes out of its way to make life as easy as possible—and so it should—for the officer concerned, provided the safeguard is there, by saying that if it is not practicable to make a record at the time then it has to be made subsequently and as soon as possible thereafter. One imagines that it will be made at the police station.
Obviously, there are examples that one can think of, where it may not be practicable. It may be a mass stop and search. It could be—and I do not say this in any lighthearted way—that the officer suddenly finds that he does not have a pencil and therefore it would not be practicable to make a record on the spot. He would have to do it thereafter.
The next and extremely important provision—those of your Lordships who are laymen in these matters will appreciate this very much more than the lawyers—is the safeguard that the person who is stopped and searched must be told of his right to have a copy of that record if he applied for it within a period of 12 months. That is terribly important. Your Lordships who are laymen in these matters would appreciate this much more than the lawyers because your Lordships would immediately say, "How does that man who has been stopped and searched know of that right unless the police officer tells him he has got it?" He will not have studied the provisions of the Act and most likely, with the shock of the stop and search, especially if he happens to be innocent, he will not be in a fit state to call for the Act at his local library and search through its provisions to find out his rights.
I ask your Lordships, having courteously and patiently followed me up to now, to look at the provision which is contained on page 4, line 8 and which my first amendment asks should be left out. The provision in Clause 2(4) says this:
"A constable need not bring the effect of Section 3(7) or (8) below"—
Clause 3(7) is concerned with a personal search, and that is where the information has to be given that the person is entitled to a copy. Clause 3(8) applies to the owner of a vehicle, and there, too, there is a provision for a copy of the record of the search. Clause 2(4) states:
"A constable need not bring the effect of Section 3(7) or (8) below to the attention of the appropriate person if it appears to the constable that it will not be practicable to make the record in Section 3(1) below".
That is, it is permissible not only not to make the record at the time, but even not to make the record afterwards.
What I am saying by grouping these amendments together is that I can conceive of no circumstances where it would be right for no record to be made—none at all. I can well understand that it may

833
very well be that the record cannot be complete if it happens to be a mass stop and search or something of that kind. But can your Lordships conceive of a proper case where somebody has been stopped and somebody has been searched or a vehicle has been stopped and a vehicle has been searched but it is not practicable, either on the spot or at any time thereafter, to make a record of it? Do your Lordships think it is right that, in those circumstances, when the officer thinks that it is not going to be practicable, he may conduct the search without carrying out the requirements of this Act? Should he not, before doing so, say to the person who is involved in the stop and search, "I will be making a record of this and of course you will be entitled to it. I cannot necessarily make a record at the time but it will be made subsequently"?
So the burden of this amendment is as follows. There ought to be no circumstances where some record is not made. There ought to be no circumstances in which the person stopped and searched under either Clause 3(7) or (8) is not told of his rights. It may not be a right to an immediate copy but there must be a right to an eventual copy when that record is made at the police station. I beg to move.
6.24 p.m.
Lord Inglewood: I echo the point which the noble Lord, Lord Mishcon, has just made, though I did not go the whole way with him on one point. He implied that we laymen in this Chamber today who are interested in this subject were not outnumbered by the criminal lawyers and outweighed by their intellect. Perhaps some of us from time to time have tried to learn something of the practical side of policing from regular policemen. The sad thing is that among us we have not more parliamentarians in both Houses and in other parts of the country.
I wish to make one point briefly, and that again is the noble Lord's point. I ask your Lordships to consider the position of the ordinary policeman, in bad weather, who goes out to a corner of the street and finds an incident. He wonders what he has to do. He wonders whether there is anything there that will turn into an incident. Is he outnumbered? There may be a simple difficulty, as was suggested. Maybe he has lost his pencil, though that I think would be a disciplinary offence as well. It is an acutely difficult position for a junior policeman to find himself in, but it happens all the time. He has to rely tremendously on his sergeant and the supervision, if not on that evening, then on other occasions.
The standard of supervision varies tremendously. An expression which is often used in police circles and is also used in parliamentary circles is "ways and means". There is no question but that a very large amount of this record keeping about which the noble Lord has spoken is in fact a ways and means, common-sense outlook, an account of which he tries as best he can to put on paper. It is quite impossible to suppose that every constable under all conditions is able to understand what he sees in front of his eyes when none of us could possibly know until later the development that has occurred. He hopes that he will be able to play a creditable part in whatever it may be, but it is extremely difficult.
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Some of this precise wording which we are putting into the Bill will never be able to be followed in great detail. One hopes that our belief in the integrity, the honesty and common sense of the police will allow us at the end of these several days of discussion to achieve something which will be to the advantage of all the 50 million people in this country.
Lord Plant: I wish to oppose the amendment. The amendment seeks to delete subsection (4) of Clause 2. The first question which most people will ask is: what about football crowds and what about demonstrations? Everyone should have a record if they are searched. That is reasonable and yet to take out of Clause 3,
"unless it is not practicable to do so",
is somewhat foolish because it may not be practicable, when dealing with 10,000 or 20,000 people at a demonstration, in the middle of a fracas or at a football match, to issue a record to everyone.
On the other hand, to leave out the first sentence of Clause 3(7) as Amendment No. 15 seeks to do would mean that everyone shall have a record from the constable who has stopped him or searched him. I say that it would give the police quite an impracticable job if everyone who is searched must have a record, and that the police will have no leeway whatsoever in relation to dealing with very large numbers of people. I think we shall need an increase in the establishment of the police if we have to issue records in the way in which the Act will indicate if it is amended in accordance with the present amendment.
Lord Mishcon: I wonder if, with the patience of the Committee, I could just answer a point. I find that increasingly I welcome the interventions of the noble Lord, Lord Plant, because his interventions may persuade the rest of the Committee that what I have said may be right. I say it for this reason. To quote examples of huge demonstrations at football grounds may be to deal with the question of stopping somebody; but we are dealing with the exercise of a power to stop and search. If somebody has been stopped and searched, he deserves a record whether he is in fact one of 20, 30 or 40 people, although it would be unlikely that as many as that would at any time be searched, and certainly not by one officer.
Lord Inglewood: May I ask the noble Lord a question before he sits down? Would he agree that, after he has been arrested, a man will spend something like 2½hours while the paperwork is being completed following an arrest? That demonstrates how impossible it is to stop. search and detain men at football grounds under that sort of system.
Lord Elton: I wonder whether I might put to the noble Lord, Lord Mishcon, a practical question of policing. I am sure he has read in the papers of the invasion of Brighton, for instance, by very large numbers of young people on motor bicycles or scooters. It happens at Brighton; it happens at Skegness; it happens each year in a different place. They gather like starlings but in a much more dangerous and rapacious way. The noble Lord is not suggesting that the constabulary should always have so

835
many people there that they can contain these people long enough to give them a formal record, every one, of the fact that they have been stopped and searched, either for offensive weapons per se or for offensive weapons which are made offensive by intention. But that is the effect this amendment would have and that is what he appears to be asking the Committee to do.
If 1,700 of these people turn up and swamp a seaside town—it may not be a very big town and it may not have a very large local force and people will have to be drafted in—it really is not practicable for the form to be filled in, for example, in multiplicate, many thousands of times. I cannot therefore encourage the noble Lord to expect us to accept an amendment which would have the effect of requiring them to do so, because his amendment actually takes out the right not to give a record.
I suspect, from his expression and his general manner, that the noble Lord is actually after a different reassurance—I may be wrong—because I detected two threads in what he said. Does he want 10,000 copies of these pre formae to be completed in one stormy night, possibly in howling gales and pouring rain by an unfortunate constabulary who will otherwise have no right to stop these people unless they arrest them?—and the noble Lord knows how delicate the balance of emotion is on such occasions and how provocative an arrest can be and how provocative it is if a long time is spent holding up people from going somewhere while one by one they are processed.
What I think I can say is that of course the event will not go unrecorded. There will not be a record of every one of these motor-cyclists and therefore there will be no purpose in giving the motor-cyclist reason to expect that he can have a record of being stopped and searched. I doubt whether there would be any purpose in allowing him to have a sight of a general record. But I think I can assure the noble Lord that general searches of that sort will not pass without the knowledge of the supervising officers in a district: very far from it. Therefore, from the supervisory point, I think he can be reassured.
The other thread I thought I detected in what the noble Lord said ran off, as it were, in the opposite direction. I would express it as this: what happens if the constable cannot be bothered to make a record when in fact it is practicable to do so, though it may be boring or difficult? Clause 3(1) lays a clear statutory duty on the constable to make a record unless it is not practicable to do so. Clause 3(7) and (8) give the person searched a right to a copy of the record. If the constable does not make a record and the person felt that it would have been practicable to do so he would obviously make a complaint and this would no longer be the elaborate and difficult process that some people now find it, because when we come to the complaints procedures of the Bill we shall find there is a means of pursuing what we call trivial complaints in an easier manner.
I doubt whether he would even need to do that, because one of the purposes of the record is to permit senior officers to review the way the power is being used, and if it became clear to the supervising officer
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that the constable habitually was not making a record, I trust he would be down on him like a ton of bricks.
Lord Mishcon: As that question has been directed to me I want to answer it, otherwise the debate may not be as tidy as it should be; and I apologise to my noble friend for insisting upon making the point now. The noble Lord the Minister, whose clarity of mind we always admire, has not shown it on this occasion. I was not making the point about being able to make a record in the midst of rain; nor was I making the point that an officer should be able to make a record, even if it was not raining, if he was trying to deal with a troublous situation in Brighton or elsewhere. What I was saying—and the Bill says it—is that it should be done some time afterwards, if he cannot make it at the time—and I know the noble Lord will bear in mind that his saving statements do not apply to the other things he has got to do, willy-nilly. He has got to identify himself and to give his number under the provisions of this Bill, whatever be the circumstances. He has to do other things. There is no exception there if it is impracticable to do so.
What I was posing to the Minister was this. What does the record consist of? All he has to do is to say to the man before he spends time in searching him, "Look, it is my duty before I search you to tell you that subsequently—I cannot do it now—I shall be making a record and you can apply to the blank police station for it". Let us see what that record has to contain. It has to contain details which are very simple indeed. There is the object of the search. He goes back and says (in the noble Lord the Minister's example), "The object of my search was because I thought this crowd of hooligans had some offensive weapons on them". The grounds for making a—
Lord Elton: The noble Lord draws me to the point. He has referred to "this crowd of hooligans". Maybe he is going on to specify individual people in the crowd. The noble Lord looks very puzzled. Perhaps I had better let him continue. But it seems to me that perhaps we are talking about two different things. I am talking about cases where one constable, with others, may be searching a large number of people under absolutely necessary circumstances, he himself dealing with 100, or 170 people. If he is going to keep a list of names and addresses so that they can be identified when their requests come in, that is an enormous increase in the amount of work he has to do. It enormously slows it up and it will make it less effective.
Lord Mishcon: I am still puzzled, and for this reason. Take the exaggerated example of one police officer who has searched 170 people in this incident. I would say he immediately deserves promotion if he has carried that out in connection with one incident unassisted. But taking for granted that is so, all he has to do is to say to each person whom he searches, before searching him, "I can't make a record now but I will subsequently". He goes back to the police station—and I was going through it. He says: "I was not able to identify all the"—can I make it 160 instead of 170?—"all the 160 people whom I did search. The object was obviously because I thought they had

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offensive weapons and they looked like gangsters. That was my ground for making it. I made it on the blank day of blank at three o'clock. The place where it was made was Brighton. As to whether anything was found, yes; I cannot identify now the people from whom I got them, but I got four knives that I brought back. As to whether there was an injury to a person or damage to property that appears to the constable to have resulted from the search, the answer is that one man got one black eye".
Anybody who had that warning could then go to a police station and say, "I was one of the 160 people who were searched. Could you at least, please, give me such record as you have got?" I ask the Minister to tell me where, in the name of Heaven, can he cull an example out of his fertile imagination where it would be impracticable subsequently to make a short record of what took place, which is contained in Clause 3(6) of the Bill?
Lord Gifford: I hope that the noble Lord the Minister will agree to look again at the concerns which are being raised. This is one example of a characteristic of the Bill which we see in a number of places. The Bill confers a safeguard, in that a constable shall make a record of the search in writing, and then immediately the safeguard is qualified in such general terms that it leaves the door open for it to be ignored altogether in a vast number of cases.
As regards the word "practicable", an officer's view of what is practicable will vary from person to person. There may be all sorts of young officers facing overtime and wanting to get back to their families who will say to themselves, "It isn't really practicable to make these records, because I am very overworked", and who will just not do it—and no one will know except, possibly, his superior if there is a complaint; but if there is no complaint the matter will go completely unrecorded. It is not good enough to have the safeguard weakened in such a general way.
The noble Lord the Minister has mentioned one circumstance in which it may not be practicable to make an individual record on an individual piece of paper of every search; that is to say, when great numbers are involved. There seem to be two possible ways in which this can be dealt with. Either in the code of practice it can be made clear that when there is a mass of people the record can be a single record dealing with the mass, rather than having the bother of going through 160 pieces of paper in multiplicate; or, if it is necessary to spell out an exception in the Bill to deal with greater numbers, then let the exception deal with great numbers and great numbers only, because, like my noble friend, I cannot think of any circumstance where there has been a single search and it would not have been practicable to make it in the terms in which we regard the word "practicable", which may not be the same terms as those in which the constable regards it. There seems to be a very legitimate concern,and I hope the Minister will see whether there are ways of meeting it.
Lord Elton: I am on common ground with the noble Lord, Lord Gifford, in one respect, and that is that I do not think that what the noble Lord, Lord Mishcon, proposes achieves what is intended, because the record
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in the Bill is very clearly described and what the noble Lord described is something else. He has called it incomplete, but it is a record that does not have either a name or a description. I do not think you can expect a constable to remember an accurate description of all the people he might search on a night such as I have described. Nor do I think you can expect him either to remember or, indeed, to receive all the names of the people he may search on such a night. That will mean that he is not capable of fulfilling the requirements of Clause 3(2) and Clause 3(4). That means that he must have a get-out, and the get-out is what the noble Lord wishes to remove. If the noble Lord wishes to do that, he has to replace it with something else, because what he has said should be there is different from what is in the Bill. I hope that I am making myself clear.
The Bill requires the constable to make a record with very specific things in it, and they are set out in Clause 3. The noble Lord has said that the constable shall not be exempted from that requirement in any circumstances. That is in his amendment. But what was in his speech was something different, and was a sort of block description of which anybody claiming to have been in that particular town at that time and to have been searched would be entitled to a copy. That is an interesting idea which I shall think about, but it is not what is proposed in his amendment and it is new to me.
Lord Mishcon: I must not detain the Committee much longer on this, although it is a very important matter. If the noble Lord refers the Committee to subsection (4) of Clause 3 and asks, "If he does not know the name what can he do, because he will be difficult to describe?", I must point out that the subsection reads:
"If a constable does not know the name of a person whom he has searched, the record of the search shall include a note otherwise describing that person".
So that would be fulfilled by: "The best description I can give is that there were 40 youngsters on motorcycles wearing"—whatever they were wearing.
If the Minister would say to me that if, instead of the amendment I have moved, I add after the words "describing that person" the words "to the best of his ability", then that is something with which he would be perfectly satisfied, and that in those circumstances he would be happy to see that there was no exception to some record being made, then I will know where I stand at Report stage and I will know perfectly well that the Government might be bringing forward their own amendment. But what he is doing is giving complete carte blanche to those who feel that it is not practicable to make a record. The poor man who has been searched has no right at all, and he will be told, "I am awfully sorry, but it was not practicable and there isn't a note at the police station, either". Apart from that, he will not even be told of his right. That cannot be correct.
If the Minister will go some way towards me by saying that the Government will think about an amendment that will enable some record to be made, then I shall immediately ask your Lordships' leave to withdraw the amendment. But I ask him to try to help me.
Lord Elton: I can only half-help the noble Lord. He wanted to know where he would be at Report. I can tell him where he is at Committee. He is at Committee very nearly where I said he was when I last intervened, in that it seems to me that the Bill places a specific duty to produce a specific document containing specific information upon policemen in specific circumstances. It is not credible that there will not be occasions when those requirements cannot be met, but that is what the noble Lord is seeking to avoid. He is seeking to say that they must always be met. If he wishes to say that it should be possible to meet them in part, then I think that is something to which he should give his mind between now and Report stage.
He has opened up so many possibilities in my mind that I am not going to undertake that any of them will come to fruition with an amendment, because I can see more difficulties than are now apparent to him in listing in a block reference 170 different people some of whom were carrying bicycle chains, some of whom were carrying steel ballbearings, some of whom were not carrying anything offensive. The numbers will be great and the effort of recollection will be great also. I am not saying that it is impossible. I am saying that it seems fraught with difficulty, and I wish the noble Lord luck in his search between now and Report stage.
Lord Mishcon: It is obviously a matter which ought to be looked at on both sides, and not hurried. The noble Lord the Minister has been very courteous especially in his last remarks, and I would therefore ask him whether he would kindly agree to consider. I promise that I will. I think that, with the help which he has and which I do not have, he may get over more difficulties than I can and we shall then arrive at a proper solution to this problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.48 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 10:
Page 4, line 21, at end insert?—
("( ) stating the grounds for making the search;")
The noble Lord said: I can move this amendment very briefly in these terms. Clause 2(6) of the Bill states:
"On completing a search of an unattended vehicle or anything in or on such a vehicle in the exercise of any such power as is mentioned in subsection (2) above"—
that is the general power for searching an unattended vehicle—
"a constable shall leave a notice—
(a) stating that he has searched it".
The effect of this amendment would be to add to the duties of that officer also to state the grounds for making such a search.
The Committee is already well aware that there is a duty upon an officer to make as contemporaneous a note as he possibly can in relation to the search of a person or a vehicle, setting out the matter which are required to be documented under Clause 3(6)(a). Therefore this does not add to the general obligations of that officer. It seems to me, and to those who sit on these Benches, that the additional safeguard of writing down the reasons for the search merely mean that it
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will not be open to the officer later if, with the benefit of hindsight, he comes to a conclusion, with some justification, which did not appear to him to be present at the material time to add it by way of good measure. I hope that the broad common sense and justification for this amendment will be recognised by the Minister and that, with the same grace as he displayed in relation to an earlier amendment which I moved, he will be able, with great magnanimity, to accept it. I beg to move.
Lord Gifford: I wonder whether it would be convenient for me to speak to Amendments Nos. 11 and 12 at the same time as we discuss the amendment moved by my noble friend. Amendments Nos. 11 and 12 serve merely to insert two further requirements into the same duty to leave a notice behind when an unattended vehicle has been searched.
Amendment No. 11: Page 4, line 21, at end insert?—
("( ) stating what articles, if any, have been seized from it;").
Amendment No. 12: Page 4, line 26, at end insert—
("( ) stating the effect of section 3(8) below").
I was very worried by the provision which allows an unattended vehicle to be searched. At one point I considered whether it was necessary at all. It seemed to me that the stop and search powers were required where there are people about and that there should not be a licence for the police to go to parked vehicles and, without waiting for their owners to return, to search them if they think there is something inside. I was persuaded that there is value in having this power, but there must be concern as to how it will be exercised.
If somebody is foolish enough to leave a bag in the back of their car (which is unwise) a zealous police officer may well believe that it contains something which has been improperly obtained, or which is offensive, or which is stolen, and he will want to search it. Subsection (6) deals with the only information which the owner of the vehicle will have when he or she returns to the car. They will learn that the vehicle has been searched, which may come as rather a shock; they will learn the name of the police station to which the police officer is attached; and they will be told that an application for compensation for any damage caused may be made. That is something of a wild goose chase. If the search had been properly conducted under powers given by law, no compensation would be awarded under the law. Therefore I am not sure whether that is helpful. What is left out of the notice is a great deal of information which would be much more valuable: first, that which my noble friend has spoken to, which I support; and secondly—and perhaps more obviously—the provision in Amendment No. 11 that the owner of the vehicle should be told whether anything has been taken from it. The vehicle may contain a great number of goods. If something has been taken, this fact should be notified to the owner of the vehicle who is not there.
Finally, there should be consistency between the search of an unattended vehicle and the search of a person. The right to obtain a record should be notified in writing. Normally it would be notified orally under the other duties contained in the Bill. The object of Amendment No. 12 is to require that the notice left will mention the effect of Clause 3(8) which is the power to receive a copy of the record. I commend to

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the Committee both of these extra provisions in the notice. It is the only notice that the owner of an unattended vehicle will ever have.
Lord Elton: I am grateful first to the noble Lord, Lord Elystan-Morgan, for bringing to our attention the fact that the owner of an unattended vehicle which has been searched will not immediately know, on his return to the vehicle, why it has been searched. We agree that it is only reasonable that he should be entitled to information. We therefore agree with the spirit of his amendment; but we could usefully take matters one step further, as has been proposed in the amendments tabled by the noble Lord, Lord Gifford. When a search takes place even of an unattended vehicle a record will have to be made, as required by Clause 3(1). That record must include a number of things, including the grounds for undertaking the search and a note of whether anything was found; and, if so, what.
It therefore occurs to me that the simplest way to meet the point identified in all three amendments would be to include in Clause 2(6) a requirement that the written notice to be left in or on an unattended vehicle should state, in addition to the matters contained in paragraphs (a) to (c) of subsection (6), that the owner or person in charge of the vehicle is entitled to a copy of the record of the search if he applies at the police station named in the notice. Not only will this ensure that the owner can obtain the grounds for search and a note of what was found; he will also obtain the assessment by the police of any damage caused, as this, too, must be included in the record under Clause 3(6). This may assist him in any application for compensation. An amendment on the lines of the second amendment tabled by the noble Lord, Lord Gifford, would dispense with the need to duplicate this information in the written notice itself. I gladly undertake to bring such an amendment forward at Report. I am only sorry that I was unable just to say that I agree and then to sit down. I always want to do so, but never seem to have the opportunity.
Earl Fortescue: Before the noble Lord the Minister sits down, I wonder whether he could explain one point to me. In view of Amendment No. 1, will a plain clothes police officer be in a position to search an unattended vehicle? It seems that a dangerous situation will arise if an officer in plain clothes is allowed to carry out such a search.
Lord Elton: I ought to have the Bill at my fingertips. The answer is probably no, whether the noble Earl likes it or not.
Lord Simon of Glaisdale: As I understood the noble Lord the Minister he is accepting the substance of what is proposed, both by the noble Lord on the Front Bench and by the noble Lord, Lord Gifford; but he is saying that the information will be available at the police station. As a notice has to be left in the vehicle, I should have thought there is much to be said at least for stating the grounds and certainly for stating in the notice left in the vehicle what articles have been removed. Would the noble Lord consider that point?
Lord Elton: I shall of course always happily consider anything which the noble and learned Lord, Lord Simon of Glaisdale, suggests. It seems to me there is a distinction between the first and the second pieces of information, and that the owner of a car might be happier about the first rather than the second piece of information being displayed to the passing public. However, I shall read the record of the debate before I come back to your Lordships.
Lord Elystan-Morgan: The noble Lord the Minister has come a very long way and shown his usual goodwill in relation to these matters. While I accept completely the argument of the noble and learned Lord, Lord Simon of Glaisdale, and feel that those arguments are irrefutable, I very much welcome the general attitude of the Minister. On further reflection, he may well come to the conclusion that the noble and learned Lord is right in his logic and that the point should be conceded. For those reasons, I am very content to have the matter withdrawn, if the Committee so pleases.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 and 12 not moved.]
Lord Plant Lord Plant moved Amendment No. 13:
Page 4, line 40, after ("gloves") insert ("or any hat or other form of headgear or headcovering, except one customarily worn for a religious purpose")
The noble Lord said: Subection (9)(a) appears to empower a constable to ask a person being searched to remove his outer coat, jacket or gloves. Many articles such as drugs or weapons are commonly carried by certain types of criminals in their headgear, or are concealed beneath their headgear. That this is not included is a glaring omission. I cannot see from any common-sense point of view that to ask a person to remove his headgear for a search could be regarded as provocative or degrading when the power to remove his jacket is included. This is patently inconsistent. It is surely useful to insert between the words "gloves" and "or" the words,
"or any hat or other form of headgear or headcovering, except one customarily worn for a religious purpose".
This would then remove any objections to this power on religious or ethnic grounds.
The Police Federation has highlighted repeatedly the dangers of the current massive problem of drug abuse and the recent trend among drug abusers towards hard drugs. The detection of traffickers in hard drugs is already difficult because of the physical size of the drugs by comparison with their street value. A hat could conceal hard drugs worth many thousands of pounds at street value, and yet a constable is not empowered by this Bill to make a person remove his hat—only his jacket or his gloves. Will this apply also when one is walking through the red channel or the green channel at customs?
The policeman pounding the pavements put the people of this country on notice that they cannot prevent the spread of hard drugs without the tools to do the job. One of the tools would be for your Lordships to accept this amendment. I beg to move.
Lord Elystan-Morgan: I find it somewhat difficult to follow entirely the logic of the noble Lord, Lord Plant. Certainly is so far as he speaks of the officer being inhibited in making a search for drugs, I believe he is misconceived because the officer already has those powers under Section 23 of the Misuse of Drugs Act 1971. As I understand it, anything that is done by this Bill will not change that situation at all.
The matter that most concerns us on these Benches is whether it ever was really necessary for the police to be given powers to request people to remove any parts of their clothing. I bear in mind very much what the Royal Commission, having thought very deeply about this matter. have to say in Chapter 3, paragraph 27, of their report. They say:
"We consider that searches on the street should be limited to fairly superficial examination of a person's clothing and baggage. It seems to us improper for anything very thorough to occur in a public place. We understand that in some forces it is the practice to offer to conduct even a superficial search at the police station if the person who is to be searched would prefer it (there is obviously some embarrassment involved in being searched in public). That might become a general practice".
We must never lose sight of the fact that the vast and overwhelming majority of persons searched will be totally innocent. They will not only be utterly innocent of any offence of carrying stolen goods or an offensive weapon, or anything else for which a police officer would have the power to stop and search under any legislative provision now in force, but they will not have been in any way, to use a hackneyed term, the architects of their own misfortune in being asked to stop and be searched. They will not have done anything to invite such attention by a police officer.
We wonder whether it was ever necessary to give the police power to do more than conduct a cursory search. But if the case is that there has to be a detailed search, where is the logic of confining it in the way that the Bill does? The Bill refers to
"an outer coat, jacket or gloves".
It does not allow a police officer to look into a person's boots. If one is searching for stolen property surely that is one of the most obvious places to look. If it be the case that there has to be a detailed search, then there is a great deal in what the noble Lord, Lord Plant, has said about the search including headgear—subject of course to the very proper exception of the religious groups to which his amendment refers.
The Question I raise is whether it was ever necessary to deal with the matter in this way; whether it was envisaged by the Royal Commission; and whether the power of stop and search can be exercised without prejudicing to too great an extent good relations between the police and the public on the basis of a much more cursory search than appears to be envisaged by this particular provision of Clause 1 subsections (2) and (9) of the Bill.
For that reason, we do not support the amendment of the noble Lord, Lord Plant; indeed, not only is the amendment unnecessary but we believe that the provision itself should be thought about again, particularly in the light of the Royal Commission's recommendations.
Lord Hutchinson of Lullington: Subsection (9)(a) uses the phraseology:"
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"authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves".
Is the implication that if the person who is stopped and searched is taken away from the public street and into a van, for instance, then a complete search will be permitted? Perhaps it will be a strip search—one does not know. What is the significance of the words "in public"? Is the suspect to be taken behind a hedge and then be allowed to be searched? If so, it seems that we are again in the area of harassment, and I would have thought that those words were not very apt.
Lord Inglewood: Perhaps I may comment on what has been said by the noble Lord, Lord Elystan Morgan. I have not seen a search of the kind to which the noble Lord has referred occur very frequently in public. On the other hand, if any of us suddenly found ourselves in charge of one or more men who had been arrested, I believe we would be very anxious to see that they did not have any weapons in their pockets before there was any damage done to us. That kind of thing can easily happen if a search is not sufficiently effectively carried through.
Further, if a person is arrested and it is suspected that he is a drug addict, the constable will be anxious to see that the suspect does not drop everything that he might have in the way of drugs before he arrives at the police station. Surely we must not discourage the police constable from carrying through a search as early as possible if the constable believes that he or any of his colleagues is likely to be put at hazard.
Lord Elton: The Bill does not allow headgear to be removed in public because of genuine religious sensibilities. The power to stop and search has to be carefully circumscribed and carefully exercised to avoid resentment and harm to community relations. Here, I could well be standing on the other side of the Committee as I say this: I do not believe that it is desirable to allow the possibility of officers being empowered to remove in public, and by force if necessary, a turban, for example. worn by somebody who may or who equally may not—
Lord Plant: The amendment makes it quite clear that headgear for religious purposes would not be involved.
Lord Elton: I was coming to that. As I say, how is the constable to know whether the person he is talking to and whose headgear he wishes to remove is or is not a practising Sikh, because they look very much the same whether or not they are practising?
Lord Plant: This amendment is specific and clear. Obviously no policeman would ask a Sikh with a turban on to remove that turban. He would not ask, "Are you a practising Sikh?" He would not ask a Sikh with a turban on, or a Jew with a little hat on—he could not hide much under that—to remove it. I think that the noble Lord is just playing with words.
7.10 p.m.
Lord Elton: I do not wish to irritate the noble Lord. I hope that he will not think that I am being difficult with him. But how does the constable know that the

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gentleman is a Sikh and not just somebody who looks like a Sikh? Is the noble Lord saying that no turban may be worn by anybody? The point is that his amendment places upon the constable the responsibility of deciding whether what he is looking at is a hat for keeping off the rain or a hat for other purposes, whether it be a turban or a hat worn by some other religious order.
I realise that the noble Lord has taken care to qualify his amendment by excluding hats, and so on, customarily worn for religious purposes, but the effect of the qualification is to make the police constable the arbiter in a public place of whether the article of dress that he wishes the person to remove is such a hat, turban or yashmak. How is a police officer who detains a person in the street for the purposes of a search supposed to know whether that person customarily wears that article for a religious or a secular purpose; or is it simply to be that if anybody holds onto his hat and says, "No, I am wearing that out of religious principle", the constable has to desist—in which case there is an obvious way in which every criminal can evade the necessity of removing his headgear?
It may well be the case that stolen or prohibited articles may be concealed under hats, and that, the bigger and woollier the hat, the greater the scope for concealment. But if an officer needs to search under a hat which a person is not willing to remove—and of course there is nothing to stop the person from voluntarily taking off his turban or whatever the other piece of headgear may be, if he wishes to—then he will still be able to do so, provided that the search does not take place in public view, and that is in order to avoid embarrassment. It think that I can say the same about boots and other articles of more personal attire as well.
I believe that the amendment would increase the risk of conflict between the police and the ethnic minorities. I think that, on reflection, the noble Lord will find that it would make the task of the police more difficult to perform.
Lord Harris of Greenwich: My I just ask the noble Lord one question? I think that it was indeed put to him by the noble Lord, Lord Plant. It is this. What are the powers of the Customs and Excise in this matter? I think I am right in saying that this matter was put to him. I should like to know what the answer is.
Lord Wigoder: While the noble Lord the Minister is waiting for assistance to arrive on that difficult matter, may I ask him what is meant by the words, "in public", In line 39? On one occasion in the course of his reply he used the expression, "in a public place", and on another the expression, "in public view". I should be grateful for clarification. They seem to me to be totally different matters. What is meant by the words, "in public"? Is it a public place, or does it mean somewhere which is not a public place but where other members of the public are present or somewhere where other members of the public might be expected to be present?
Lord Renton: I must apologise to the Committee for not having been here at the start of this discussion, but I am very familiar with the issues which arise. I wish to pick up one point made just now by my noble friend
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Lord Elton, when he said that he could not imagine—or words to that effect—that a police officer could tell whether headgear was worn for religious purposes. I should have thought that that is something which could be the subject of simple instruction or information to the police. I think that most of your Lordships are conscious of the fact that turbans are sometimes worn for religious purposes, and then there are those very small skull-caps which strict Jews wear and some other hats which they wear. There is nothing to prevent the Home Office from issuing an information circular to the police in order that the are made au fait with that. Once that difficulty is overcome—if it is a difficulty; I do not see it as such—I should have thought that there was a great deal to commend the amendment moved by the noble Lord, Lord Plant.
Lord Monson: Does the noble Lord, Lord Elton, not agree that a religious Sikh is under no obligation never to remove his turban? The only obligation imposed upon him is never to cut his hair, which is a rather different matter.
Lord Elton: The noble Lord, Lord Monson, has aptly shown what a difficult subject we have embarked upon; and my noble friend Lord Renton aptly said that everybody knew that turbans were sometimes worn for religious purposes. What I am trying to avoid is putting the unfortunate constable in the position of having to decide whether this is one of the times when a turban is worn for religious purposes.
If I may remind your Lordships, the background to all these discussions is how the police can get on with their job with the least friction with the public. This clause is drafted so as to prevent the police causing the sort of embarrassment or hassle that people would feel if they were obliged to do things in public which they thought were undignified or contrary to their religious belief.
I do not have for the noble Lord, Lord Wigoder, a definition of the term, "in public". The phrase, if I used a different one—even a marginally different from that in the Bill—was the wrong phrase. The term in the Bill is, "in public", and I understand that that is a term understood by the courts, and that is what matters. I think that most of your Lordships have an idea of what it means, too. Whether it means, not in the middle of an empty football ground at midnight, I do not know, but basically "in public" is different from in private.
The police have a power to take the person—voluntarily, if he wishes—to any place that is not public so that he can divest himself of his hat in less embarrassing circumstances, if he wishes, and, even under Clause 110, to use such force as is necessary to do so in a difficult case. That is a matter of the last resort, because the purpose of the clause is to reduce, and not to increase, friction.
Lord Harris of Greenwich: I am sorry, but I did ask the noble Lord a question about the Customs and Excise.
Lord Elton: I understand that the Customs and Excise is not affected by this clause.
Lord Gifford: I very much want to support what the noble Lord the Minister said about the approach of the Government on this clause, although to enter one caveat. There are other examples which come to mind. He mentioned the yashmak, which is a very interesting example. Many women wear a yashmak, a veil or a scarf, sometimes for religious reasons and sometimes for reasons which are part social and part religious. Many West Indians wear a large woolly hat out of adherence to Rastafarian beliefs. I am sure that the noble Lord, Lord Plant, would not be able to tell the difference between someone who was wearing a red, green and yellow hat (for those are the colours) for those reasons and one who just liked the colours. For those reasons, I hope that the noble Lord, Lord Elton, will be supported and the noble Lord, Lord Plant, will not press the amendment.
However, one matter of concern has been raised—and it was raised by the noble Lord, Lord Hutchinson—which was not, I feel, adequately answered by the Minister, and that is this question of, "in public". The lawyers know very well what a public place is. A public place is any street or any other place to which the public have access. If what the Minister is indicating is that one can go out of public view into a side street and then do all the things like searching boots and hats which are not otherwise permitted, that gives me great disquiet.
It seems to me that that is exactly what will happen. What we need is a clear definition of what can be done under the powers of stop and search and what has to be done under the power of arrest. The best place for hats and other more intimate articles of clothing to be taken off and searched is the police station, and one would have to go the whole hog and arrest. We may have to come back on Report to the question of, "a public place", or. "in public".
Lord Elwyn-Jones: I can see I am batting on a difficult wicket. I think my final words should be these: that the noble Lord, Lord Elton, said that it would lessen friction with the public if a person was allowed to keep on his hat when the constable had made him remove his jacket and his gloves. I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Duty to make records concerning searches]:
[Amendments Nos. 14 and 15 not moved.]
Clause 3 agreed to.
Baroness Trumpington: I am in an awkward situation. I understand that the next amendment is going to be a very long amendment.
Lord Elwyn-Jones: No.
7.20 p.m.
Clause 109: [Meaning of "serious arrestable offence"]:
Lord Elwyn-Jones Lord Elwyn-Jones moved amendments No. 16:
Page 95, line 36, leave out from ("the") to end of line 38 and insert ("course of justice").
The noble and learned Lord said: Unless any of my noble friends or noble Lords have some abstruce point to make, I would have thought this was a short point, more by way of seeking information than of great substance. The amendment arises in the definition of "serious arrestable offence" in Clause 109. The proof of "serious arrestable offence" is of course fundamental to a great deal of the exercise of powers in the Bill. What we are concerned with is first of all 109(4):
"An arrestable offence which consists of making a threat is serious if carrying out the threat would be likely to lead to any of the consequences specified in subsection (6) below".
The Committee will see that among the consequences listed in subsection (6) are:
"(b) serious interference with the administration of justice or with the investigation of offenders or of a particular offence".
What the amendment proposes is an attempt to simplify what is already a highly complex clause by simply reducing (b) to read:
"a serious interference with the course of justice",
and leaving the rest out. It may be that there is something in relation to the administration of justice which the noble Lord has in mind covering the whole gamut from the Lord Chancellor's office and the department down, but I would have thought that "the course of justice" would take in:
"the investigation of offences or of a particular offence",
and I would venture to think is more apt for what is sought to be arrived at; namely, to state quite clearly that serious interference with the course of justice is a serious criminal offence and ought to be covered by the arrangements for inclusion in the serious arrestable offence category. I do not think that I need add anything further to it.
If there is any special reason why there is a reference to "administration of justice", as such, it will be interesting to hear what it is. However, I see the alert eye of the noble Lord, Lord Renton, who is something of an expert in this field and maybe he can discover something which at the moment escapes me. However, I should have thought "course of justice" would be a convenient, brief statement to take the place of many longer words.
The Deputy Chairman of Committees (Lord Alport): I have to advise the Committee that if this amendment is agreed to I shall not be able to call amendments Nos. 17, 18 or 19.
Lord Renton: Of course, anything which simplifies drafting in the presentation of a Bill is to be welcomed. I would have thought that the expression "the course of justice" is virtually synonymous with the administration of justice. However, the noble and learned Lord, Lord Elwyn-Jones, also wishes to leave out, as I understand it from his amendment,
"the investigation of offences or of a particular offence".

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It comes as something new to me that the investigation of an offence, which takes place before the judicial process ever begins, is part of the course of justice. Indeed, the investigation of the offence may not even lead to judicial proceedings. Therefore, sad though I find it not to support the noble and learned Lord, I do not think that his amendment does quite what he would wish.
Lord Elwyn-Jones: If I may interrupt briefly, the investigation of the offence—the initial steps taken—is of course a part of the course of justice. It begins with the initial investigation, from the stopping of the suspect right through to the end of the proceedings, which may be the termination of proceedings in the Court of Appeal. It covers the whole range. I should have thought it was more apt—and this is only a matter for probing—than the use of the phrase "administration of justice", which I agree certainly does not embrace the concept that follows, namely, investigation of offences. It is something quite separate from that, but I should have thought "course of justice" would cover the lot. Let us simplify if we can.
Lord Elton: I had expected the noble Lord, Lord Monson, to intervene but he is reserving his fire. I understood from the usual channels that he was speaking on this group. The noble and learned Lord's amendments strike at paragraph (b) of subsection (6) of Clause 109. The Committee will recall that subsection (2) of the clause determines, with subsection (5), the offences that are always to be serious arrestable offences. Subsection (3) of the clause provides that other arrestable offences are only serious if they cause or are meant or likely to cause any one of certain results. Subsection (4) further provides that if the arrestable offence consists of making a threat, then if the carrying out of that threat would be likely to have any of the same results, that also would be a serious arrestable offence.
The results, the cause or threat of which serve to elevate a merely arrestable into a serious arrestable offence, are listed in subsection (6), and it is at the second of these that the noble and learned Lord's amendments and indeed those of the noble Lord, Lord Monson, strike.
Subsection (b), which contains the results to which the noble Lords have taken objection, at present reads:
"serious interference with the administration of justice or with the investigation of offences or of a particular oflence".
The noble and learned Lord's first amendment would change the description of what it is that the offence must interfere with in order to become a serious arrestable offence, from
"the administration of justice or with the investigation of offences or of a particular offence"
to "the course of justice"tout court.He will forgive me for taking so long to reach that obvious point, but I think we are now agreed about what we are addressing.
The amendment has a certain charm and seems to carry, in fewer words, the same message that is now in the Bill. Like the noble Lord, Lord Renton, I am always tremulously eager to accept that sort of amendment. But the sad fact is that there is no real
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certainty as to what the words mean. In literature and conversation, I suppose "the course of justice" means everything that happens following the commission of a crime to the receipt of his due deserts by the criminal. But case law gives us only some help. In Rex or Regina—I am not sure which, because I am uncertain of the date—v.Salvadge and Morgan, the court held that there could be no perversion of the course of justice unless a course of justice had been embarked upon in the sense that proceedings of some kind were in being or were contemplated. Even with that guidance, we do not know at what stage exactly interference would begin.
If a criminal abstracts evidence from a file after the Fraud Squad have decided that a prosecution is likely or desirable, that plainly is during the course of justice and would be caught. But suppose that he does it before they have so decided. When exactly does the justice begin to run its course? We do not know. Nor do we know precisely when it ends. Is it on conviction, on sentence, on payment of fine, on release, on parole, on completion of sentence? We do not know.
I have other observations that I could make which might make it even clearer why I am opposed to the amendment. I wonder, however, whether I have said sufficient to make the noble and learned Lord realise that even in this respect his amendment is very sadly not satisfactory.
Lord Elwyn-Jones: I shall not press the amendment further now. Perhaps those advising the Government on the drafting will have a look at it. The phrase "the course of justice" is a well known, ancient expression, covering precisely what I have indicated. Perhaps it can be looked at again.
Lord Elton: Of course I shall look at it. I am grateful for the explanation of the noble and learned Lord. We shall look at it very carefully.
Lord Elwyn-Jones: In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Baroness Trumpington: My Lords, I should like to inform the House that the usual channels have agreed that we shall not return to the Committee stage of the Police and Criminal Evidence Bill until the Trade Union Bill has completed its Committee stage. Proceedings on the Police and Criminal Evidence Bill will therefore be adjourned en principe until 8.30 p.m., but it may be that it will be a little later.

Trade Union Bill
7.32 p.m.
The Earl of Gowrie: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Earl of Gowrie.)
On Question Motion agreed to.
House in Committee accordingly.
[The LORD ALPORT in the Chair.]
Clause 15 [Political objects]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 111:
Page 18, line 23, at end insert ("and in determining for the purposes of subsection (3)(e) and (f) above whether a trade union has incurred expenditure of a kind mentioned in those paragraphs of that subsection, no account shall be taken of expenditure of which the main purpose is the furtherance of statutory objects within the meaning of section 1(2) of the 1913 Act").
The noble Lord said: With your Lordships' leave, I shall speak, also to Amendment No. 115, which is consequential.
Amendment No. 115: Page 19, line 6, leave out subsection (3).
This amendment takes up the issue with which your Lordships were concerned yesterday; namely, the new definition of political objects in Clause 15. The amendment puts in something that was in the old definition but not in the new definition. It is therefore very central to the Government's claim that the new definition merely updates and clarifies the old one. It concerns a proviso in the 1913 Act which related to political literature and political meetings. The old Section 3(3) stated that the political fund must be used to pay for expenditure,
"on the holding of political meetings of any kind, or on the distribution of political literature or political documents of any kind, unless the main purpose of the meetings or of the distribution of the literature or documents is the furtherance of statutory objects within the meaning of this Act".
The statutory objects were defined in Section 1(2) as being,
"the regulation of the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business, and also the provision of benefits to members".
Although the language is somewhat ancient, the meaning is clear; namely, industrial matters in which trade unions and employers would be concerned.
The book to which the noble and learned Lord, Lord Denning, referred earlier in our discussions in Committee,Citrine on Trade Union Law, had this to say about this most imporant provisio; namely, the proviso that the distribution of literature and the holding of meetings which had as their main purpose the furtherance of those statutory industrial objects could come out of the general fund. Citrine wrote on page 440:
"This proviso was intended to cover a situation in which political and industrial activities or purposes overlap".
I pause to say that that will normally be the real situation. Citrine goes on:
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"If the main purpose is statutory it is excluded from this paragraph even if it happens to be taken up by a political party as part of its programme".
A little later, he says:
"If the object is purely political without any admixture of statutory objects it falls within this paragraph. If the object is both political and statutory, the test is whether the main object is statutory".
That is really the nub of the matter. Where the purposes are mixed, the old definition included the extremely sensible provision that the court had to test it by way of the main purpose, and if the main purpose was industrial, then the admixture of an element of party political matter did not require that the trade union pay for the whole of this matter out of its political fund.
The case of McCarroll v.National Union of Mineworkers, Scottish Area, decided in the Scottish courts in 1965, is an excellent illustration and somewhat topical. In that case, the Scottish area of the union had organised members in a lobby of Parliament. They interviewed Members of Parliament, the Leader of the Opposition and the Minister of Fuel to protest about threatened pit closures. It was alleged later that the expenditure should have come from the policitcal fund. Lord Kilbrandon, in the Court of Session, dismissing the action, said:
"It is plain as can be that although an expedition to London to lobby MPs and Ministers can be described in one breath as having a political objective, at the same time it is clearly an industrial objective in the context in which the lobby took place. In one sense any dispute between employer and employee in a nationalised industry takes on the complexion of a political dispute since the employer is in some sense the State, which is a political body. Nevertheless I have no doubt whatever that the mainspring of the lobby was the fear that miners were in danger of losing their employment in consequence of an industrial policy of closing pits, and it is against this policy that the demonstrations were being mounted. This, in my view, is fundamentally an industrial demonstration".
Therefore, they could pay for it from the general fund.
One thing that the Government cannot say is that the proviso has a place in their new definition. Indeed, it goes further. Not only does the proviso have no place in the new definition, but the way in which the definition clause is now structured means that even if the main purpose of, say, leaflets (let us take leaflets in paragraph (f), although this matter relates both to new paragraph (e) and new paragraph (f)) is industrial, nevertheless if they include an admixture that is other than something that can be dismissed as de minimis, if they include a substantial but minor element of what falls within the definition of political—my noble friend Lord Underhill spoke about this on previous amendments—then that now has to come from the political fund. There is no discretion for the court; the court cannot weigh up the amount that is industrial and the amount that is political.
If one thinks of some of the examples discussed in another place to which the Government's response was almost negligible, one realises the seriousness of the situation. The example was taken of a Civil Service union that placed an advertisement in the paper to allege that the Government were going back on agreements and pursuing an unfair policy overall. Civil Service unions do not have political funds. No doubt that would be said to be in a great degree an

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industrial advertisement. But can anyone doubt that a court could say, quite properly, that to some extent it was likely to persuade people to vote or not to vote for the political party in office? If it does that, it is within the new definition.
Similarly, the example was taken that if there were a Government proposal to privatise work in a Royal Ordnance factory in a particular town, the town council could spend its money to explain and to express views on the proposal; the local chamber of commerce could do so; local bodies of all kinds could do so. But the trade union, because this would clearly immediately involve it in something that might be said to be likely to persuade people not to vote for the party with this policy, would have to use its political fund.
That is a major change in the definition. This amendment asks one thing only of the Government; it asks them to keep to their word not to make a major change in the definition, to restore the proviso, which means restoring the statutory objects which are the subject of Amendment No. 115. It is the very fact that the Government have seen fit, in subsection (3) of the clause, to delete the statutory objects which proves the case that a major change is being made. We think that is unfair. It is the opposite of what the Government say they are doing, and, on that basis, I beg to move.
The Earl of Gowrie: The Government believe that it is one of the benefits of the Bill's more easily understandable definition of political objects that the reference to statutory objects has been removed. In any event, as your Lordships know from last night's debates on Amendments Nos. 106 and 107, the new definition adopts an entirely fresh approach to meetings and communications, which avoids the need for a statutory object type of qualification.
Nevertheless, we have undertaken to look again at the two paragraphs of the definition which these amendments seek to qualify, and although I have to say that we are not very inclined towards the formula contained in the amendments, we shall certainly bear in mind the noble Lord's comments. I hope that on this basis—that I undertake to look at it again—the noble Lord will agree to withdraw the amendments.
Lord Wedderburn of Charlton: I am very happy that we have made such a good start. I am sure that, as he says, the noble Earl will look carefully at it, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
7.42 p.m.
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 113:
Page 18, leave out line 42.
The noble Lord said: This amendment bears a great similarity to some of the amendments that were moved last night and were the subject of debates. The effect of the Bill, if not amended, would be far-reaching, and this provision would make it more involved than anything we have discussed so far. We are in a situation where, if we do not look again at these clauses or amendments, unless one knows the
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situation and the people involved it is almost like driving into a minefield without the benefit of having a flail tank in front of one.
This amendment is similar to Amendments Nos. 106, 107 and 108, to which the noble Earl has just referred. Last night the noble Lord, Lord Gray, gave an assurance that he would look at them again, bearing in mind the points raised in the debate. What does this clause mean when it refers to,
"any position within a political party"?
I do not know how far this would stretch out into the political sphere of my own party. As noble Lords are aware, the main political functions in this Palace of Westminster are carried out in another place at the end of the corridor. I believe that if we pass this clause without alteration we may very well be transgressing on some of the accepted procedures and practices that have gone on for years in another place. It is a very dangerous road to go down.
For instance, there can be an election by the Labour Opposition, as the main party, for the Leader of the Opposition. How does that fit into it? There can be a number of other votes in what can be deemed to be political meetings within this Palace, where the members of the Opposition Party elect the Opposition Chief Whip; where they elect the Opposition Deputy Chief Whip; where they elect the parliamentary committee which largely becomes the Shadow Cabinet, depending upon the choice of the official Leader of the Opposition.
If a member of my party wants to elect a leader, while he may nominate in this place, in order to cast his vote—he does not have a postal ballot—he has got to attend the Labour Party conference, where he cannot vote. How does that fit into the scheme of things? Nobody can tell us, but this is the sort of thing that can happen. There are also other elections which take place here and which are important to my party. What about the chairmanship of the Parliamentary Labour Party? That is another post that is balloted for by Members of Parliament. Where does this fit into the scheme of things?
How are Members of Parliament who are sponsored by trade unions covered by these clauses? The Bill, as drafted, does not say so clearly. There are a number of functions which, over the years, have been accepted by governments of various colours and minority parties of various colours. It may well be—I say, "may" because I am not legally qualified to pass a judgment—that, through taking part in those functions, which, with the probable exception of the election of the leader of the Labour Party and his deputy, go on annually—Members of another place could be ensnared by this Bill.
I do not want to delay the Committee any longer because we are on a pretty tight schedule. I hope the noble Lord will be able to respond in the spirit shown a few minutes ago by the noble Earl, and which he himself showed last night. I beg to move.
The Minister of State, Scottish Office (Lord Gray of Contin): This amendment seeks to modify the definition of political office in subsection (3)(c). That term has a bearing on a number of aspects of the

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definition of political objects, not only in relation to the maintenance of office holders but also in relation to their candidature, including publicity designed to persuade people to vote for or against them in an election; and its effect would be to exclude positions within a political party from the scope of the definition.
We have been more than prepared to reconsider the new definition where it has been demonstrated to us that it goes too far. Amendments which were accepted in another place were designed to deal with concern where the definition had gone too far in relation to conferences and meetings, and we have agreed in your Lordships' Committee to give some further consideration to this aspect and also to re-examine the paragraph dealing with communications.
But in this instance we are not persuaded of the need to reconsider the aspect raised by this amendment. The Government readily accept that party office holders are not covered in the existing 1913 Act definition. No reasonable person can seriously suggest, however, that that is anything other than an anomaly. Why should a trade union be able to spend its members' general subscriptions on, for example, meetings in support of one of the candidates in a Labour Party leadership election? What is less party political about this than the election of candidates to Parliament or to local councils?
I listened very carefully to what the noble Lord had to say on this, and while I found his argument last night one with which I had great sympathy—that is why I agreed to look again at the matter we were discussing—on this occasion I really cannot see that he has such a strong point. I hope that he may respond in the harmonious spirit which I offered last night, and perhaps withdraw this amendment.
Lord Dean of Beswick: Is the Minister saying that the political positions are related solely to another place as a legislative assembly? Are they related solely to that and not included in the provisions of this Bill? If that is the case, I will withdraw the amendment.
Lord Gray of Contin: What I was suggesting to the noble Lord was that I did not really see why it should be necessary, or, indeed, why it would be right, for a union to use union funds for the purpose of furthering an election of that sort, and using those funds without necessarily having the full authority of its membership. That was what I suggested to the noble Lord.
Lord Dean of Beswick: I do not wish to delay your Lordships any longer. If the noble Minister is saying that the present procedures are accepted and that there will only be a violation of those if meetings are held specifically or funds are used specifically, for candidatures of those particular types of positions that I have highlighted in my amendment, I shall obviously beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 114 and 115 not moved.]
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Dean of Beswick: My colleagues and I have given notice that we wish to oppose the Question that this clause stand part of the Bill. It would be quite spurious to refer to the amendments that have been debated as regards this clause because I want to debate the main thrust of the clause. While we would say that Part I and Part II of the Bill are motivated against the trade union movement, we think that this clause is a total attack upon the main Opposition Party. We do not see it as anything else, however it is presented.
So far as I am concerned, politics are about power or they are about nothing. We consider that this clause is the Government's declaration of war on their main political opponents. One could argue about the difficulty of people opting out of political affiliation, but there are thousands of people every year who opt out of paying political levies to trade unions. I understand that thousands have already done so. I also understand that the Conservative Party itself runs an annual campaign among trade unionsts in order to achieve that object. It is no good the Government saying that they have suddenly discovered something to which union members are being subjected and that union members may not be aware of their rights. They are aware of their rights and they take advantage of opting out when it suits them. I contend that this particular clause of the Bill is a dagger aimed at the heart of the party which the Government see as their main threat.
It is well known in any kind of warfare—and I consider that this is political warfare —that if you wish to defeat your enemy, you should destroy his logistical support because then he cannot even begin to fight the battle. I suspect and suggest that that is the main motive behind this particular clause.
The provisions of the Bill are tantamount to a future Labour Government saying to the Conservative Party, "We will not interfere with company donations to the Conservative Party so long as the cheque is accompanied by an individual affidavit signed by every shareholder of the party approving the donation". If the Government are saying that that is not the case, then perhaps whoever replies to this debate on clause stand part will prove it to be so. But I can say that the Government in steamrollering this particular provision through this House are doing themselves for the future no service whatever.
As the political pendulum swings, one day the people on the Government Benches or their successors will be sitting on this side of the House and I or my successor and my colleagues or their successors will be sitting on the other side of the House. The Government have set a very dangerous precedent indeed by what they have done. I can give them this undertaking. People like Sir Terence Beckett and Mr. Walter Goldsmith who donate huge sums of money through their companies to the Conservative Party without recourse to the shareholders of those companies, will be stopped from taking part in that type of exercise. We will make sure that the retribution or the punishment or the retardation that the Government are inflicting on trade unionsts in order to support the party that they actually spawned as an embryo years ago, will be visited on such people, and history will show that they are making an appalling mistake today.
The Earl of Gowrie: It really is rather difficult to understand the bloodcurdling threats of the noble Lord because he is not comparing like with like at all. As I understand it, there is no objection from a political party such as the Conservative Party—and I am well aware that I am not talking for the Conservative Party at this Box—that is opposed to state funding of political parties, that there should be donations to the Labour Party, any more than there is objection that there should be donations to the Conservative Party. The difference of view between the noble Lord and ourselves is a difference conditioned not by our party allegiances but by very large sociological changes in this society whereby trade union members are not necessarily any longer affiliated to the party which, in the noble Lord's words, they spawned. Things have changed. The fact of the matter is that at the last General Election a clear majority of trade unionists voted for parties which were not the Labour Party. This therefore is a misplaced criticism on the part of the noble Lord, Lord Dean of Beswick.
The clause which we have been debating stemmed from a need identified in the Green Paper to bring the definition of "political objects" up to date in a number of respects. Particular omissions from the original 1913 Act definition to which the Green Paper drew attention related to elections to the European Parliament; to film and sound recordings; and to the preparation and production—as opposed to the distribution—of political literature.
However, when it came to updating the definition in these simple respects, it became apparent that the existing definition was less than satisfactory in a number of ways. This is hardly surprising in view of the comments of the noble and learned Lord the then Lord Chancellor who, when asked in 1913 whether everything necessary had been covered in the definition, replied that:
"one cannot be quite certain in a matter of this kind … every effort was made to sweep in the things to which objection is taken, and there has been a sort of general assent that rough justice has been done in the matter. That it is more than rough justice I will not pretend but as far as we can see the ground has been covered".
It was also clear that the existing definition had given rise to a number of misunderstandings and uncertainties over the years. Such is often the fate of rough justice. It is, moreover, full of anachronisms—not least its failure to recognise explicitly that most expenditure on "political objects" represents payments to political parties. Nowhere in the old definition are political parties mentioned, presumably in view of the fiction that political parties have no connection with the electoral process.
It therefore seemed to the Government that the opportunity should not be missed to bring forward a more up to date, readily understandable and recognisably relevant definition. I must re-emphasise however that—despite what noble Lords opposite have alleged—it was not our intention to tighten the constraints on trade unions. What the new definition does is simply to make much clearer what these constraints actually are. That the old definition did not make these clear is apparent from two notable examples—which I shall delay the Committee only
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very briefly by giving—of expenditure on party political matters which trade unions have recently made from their general funds. That is the point at issue here. I repeat: from their general funds, not from their political funds.
The first example was the decision by a number of trade unions to incur expenditure on the Labour Party's Walworth Road Headquarters from their general funds. The sums concerned were hardly trifling. Altogether some £1·3 million was handed over. No doubt many of these unions made these payments from their general funds in the genuine belief that this was allowed by the existing definition of "political objects". Both the certification officer and the Employment Appeal Tribunal have however ruled that this expenditure did come within the existing definition of "political objects". We have taken the opportunity presented by the Bill to make clear in the new definition that payments of this kind are covered. To be precise the definition includes expenditure:
"on the provision of any service or property for use by or on behalf of any political party".
The second example of party political expenditure made from union general funds occurred during a campaign by NALGO last year in the run up to the general election. NALGO ran a campaign against expenditure cuts or, rather, to translate the phrase into its proper form, it ran a campaign against expenditure not rising as fast as NALGO would have liked. We are not necessarily suggesting that the provisions of the 1913 Act required this campaign as a whole to be financed from a political fund. But when it came to advertisements like those which appeared in national newspapers, which depicted, under the tragic word "farewell", prams, buses, wheelchairs and hospitals falling over a cliff; which went on to say:
"They've got welfare the wrong way round",
and:
"the Government says that we can't afford to spend more money on the Welfare State";
and which ended up by saying, alongside a box containing an "X",
"Put people first—if this gets your vote make sure you use it"—
when it comes to a particular advertisement like that, what objective person could doubt that, however effective or ineffective such an advertisement might be, it certainly belongs firmly within the realm of party politics?
However, NALGO did doubt this. Under the terms of the existing definition it felt able to go ahead and finance the advertisement—necessarily out of its general funds, as NALGO has been wholly unable to persuade its own members to set up a political fund. The lawfulness of this action has not been tested in the courts but, had it been, there is little doubt in our minds that the advertisement in question would have been held to be "political" under the present definition of "political objects". Therefore, noble Lords opposite should hardly be surprised that in the new definition we have felt it necessary to spell out that communications which seek to persuade people to vote for or against a political party must be paid for from political funds.
Lord Wedderburn of Charlton: May I interrupt the noble Earl?
The Earl of Gowrie: Perhaps I could just finish the point. I am saying this as a man who not only works for a Government formed under our system from a political party, but from the point of view of a citizen—albeit a disenfranchised one—very passionately of the view that there should not be state-funding of political parties. Therefore. I am very keen on political parties being funded by political funds.
Therefore, I would invite your Lordships to look behind the smokescreen which noble Lords opposite have tried to create. Are they really attempting to argue that it is right that trade unions should be able to finance contributions to the Labour Party's headquarters from their general funds; or that it is right that they should be able to finance advertisements urging people to vote against a political party from their general funds? If the principles established in the 1913 Act are to have any meaning at all, one has only to pose these questions to see that the answer must be, "of course not". And, if that is the answer, we would be failing in our duty if we did not take this opportunity to devise a definition which is clearer, as well as more up-to-date. On that basis, I would urge the Committee to support the proposition that this clause stands part of the Bill.
Lord Wedderburn of Charlton: Before the noble Earl sits down, I do not wish to question him about the two particular cases which he cited, because he may well be right on the particular facts of those cases. But I want to ask him this. If the Government knew all along that, quite apart from updating—which they have always said right from the beginning was the purpose of the exercise of this sort of clause—there were all these anachronisms that required major changes, why did not they put those anachronisms in the Green Paper in the one and a half pages that they devoted to this matter? Why did not they consult on the matter? Why did not they, even in the subsequent typescript paper that put forward their positive proposals for legislation, put forward these anachronisms? Why have they kept them back until they have put the Bill through Parliament when the trade unions no longer have a chance to consult upon them?
Baroness Seear: If the noble Earl—
The Earl of Gowrie: Perhaps I could just deal with this point and then I shall willingly give way to the noble Baroness. As I said in opening my remarks, the clause which we have been debating stemmed from a need identified in the Green Paper to bring the definition of "political objects" up to date in a number of respects. I seem to remember that I was still in the department when this Green Paper was being designed, and consultations were constantly called for and very few came forward.
Lord Wedderburn of Charlton: Not on anachronisms.
Baroness Seear: Surely the noble Earl is on rather dangerous ground in saying that the noble Lord, Lord Dean of Beswick, was wrong in drawing attention to
860
company contributions. If a company, out of its funds, gives money to a political party, it is giving away its shareholders' money. Whatever justification is there for assuming that all those shareholders wish that money to go to the Conservative Party? Personally, speaking for a party which does not benefit either from a political levy or from company contributions, we should like the whole matter examined in a different way. But at least shareholders ought to have the same right to have some control over the way in which the company's money is handled as trade union members have over the way in which the political levy is handled.
The Earl of Gowrie: The Government simply do not accept collectively, and again I say that I do not accept personally, that the noble Baroness is comparing like with like. Companies do not control the lives of those who have shares in them.
Several Noble Lords: Oh!
The Earl of Gowrie: This is a classic instance of why the closed shop is so venal.
Lord McCarthy: Will the noble Earl not admit that companies can sack people and not take on people? The employment relationship is a dependent relationship. To suggest that companies do not control people is nonsense.
The Earl of Gowrie: I was referring to their shareholders. Their shareholders are free beings who can buy or sell the shares at whim. Indeed, the Labour Party quite sensibly owns large numbers of shares in companies that make contributions to the Conservative Party. I cannot understand what the noble Lord is fussed about.
Baroness Seear: The noble Earl surely is not saying that because shareholders disapprove very strongly of their money being given to the Conservative Party, they should get rid of those shares? They have put their money into that company for the development of that company, of which promoting the Conservative Party is in no way a proper part.
The Earl of Gowrie: It is very seldom that the noble Baroness, Lady Seear, and I have such sharp disagreements, but, may I respectfully say to her on this issue that she is wholly wrong. The fact of the matter is, as I have said at this Dispatch Box this evening several times, that I make no objection whatever, either as an individual or as a Minister, to trade unions making contributions to the Labour Party or, indeed, to the party which the noble Baroness so ably leads. I am objecting to their doing so out of their general funds.
Lord Dean of Beswick: To be brief, there may be a difference on some of the points of argument between my own party and the Liberal Party, but at least there is some measure of agreement on the question of how the noble Earl interprets the way in which companies act. He has probably conveniently forgotten the large sums of money expended by the cement lobby, the building trades lobby and the sugar lobby in order to

861
influence people on how to vote. As I believe that the noble Earl is completely immovable on this subject—he thinks that he is holier than thou, totally right on the issue, and that what I and my party believe is wholly wrong—I wish to divide the Committee on the issue.
Lord Tordoff: Before the noble Lord moves on to that point, may I ask whether the noble Earl is suggesting that companies should set up a political fund which should be susceptible to the votes of shareholders—that seems to be the logic of his argument—and that unless and until that is done companies should not give money to political parties from their general funds? That seems to be the logic of his position.
8.10 p.m.
The Earl of Gowrie: A company is perfectly free to give money to the Conservative Party, the Liberal Party, the SDP or the Labour Party. Noble Lords who have been involved in this territory of political organisations, as many of us have, will be aware that companies give money to all of these parties. Indeed, the Labour Party has consistently had good contributions from companies until in recent years it went off its onion. As a result, the noble Lord and the Benches on which he sits have been the beneficiaries. That is why so many Members of a previous Government have joined them.
Leaving aside that point, we know that the issue where unions are concerned is quite different because the union can tick off with the employer contributions from its employees, and we have tried to meet the anxiety of the TUC and the Labour Party on this issue in the concession that my right honourable friend the Secretary of State made. That amendment itself absolutely gives the lie to the idea that this is an attack on the financing of the Labour Party.
Lord Howie of Troon: I find the noble Earl's attitude this evening unusually sharp. In my experience of him he has been, if not benign, at least half reasonable. I find him very sharp tonight and I wonder why. Is it perhaps that he is embarrassed?
The Earl of Gowrie: No.
Lord Howie of Troon: If he will listen, he will find that he ought to be. We shall perhaps find out in a moment or two. I am giving him the benefit of the doubt. I had hoped that he was embarrassed. I am a little disappointed that he is not. He is arguing here strongly in favour of measures which have peculiar side-effects.
I have spoken for certain trade unions on several occasions during these debates and I shall not go on about that. What is important about them is—and this relates, I think, to Amendment No. 111 moved by my noble friends on the Front Bench—that these unions do not have political funds, nor do they want political funds. But under the changes proposed in this legislation they will be obliged to want political funds. That is to politicise these unions in a way which they do not want. That, if I may say so to the noble Earl, is a political mistake. I do not make the kind of threats
862
which my noble friend made, but it is a political mistake, and it is a serious mistake for the Government to make.
The Minister asks us to look behind the smoke screen, and I think we should do so. Behind the smoke screen, regardless of some of the individual points which he has made tonight, which are made in the legislation and with which I agree—there are individual reforms which I accept—the reality is different. It is not the sum of these individual reforms at all. Behind the smoke screen there is a unilateral attempt by a political party, which happens to be in power, to diminish the power of one at least of its opponents. That might be a proper way to use power if you think that power is its own justification. I do not happen to think that, and I do not think it in relation to my own party either. I do not think that power should be used in that way.
Had the Government come before us with a body of measures which were the result of wide-ranging independent inquiry by a commission, or committee, or something of that nature, the proposals put forward in this clause would have carried weight and might have carried some of us into the Lobby with the noble Earl. But he has not done that. The political party gained power at an election in which, as he rightly says, a majority of trade unionists voted for parties other than the Labour Party. However, it is quite likely that a majority of trade unionists voted for parties other than the Conservative Party as well. I do not actually know, but that is quite likely, and that is no argument at all of any significance. Behind the smoke screen we see a party utilising its power for party advantage, and that is shabby. Because it is shabby, this clause should be opposed.
The Earl of Gowrie: I am sorry to delay the Committee on this, but we again are not, in my judgment, making the proper comparisons. If the Committee were politically cynical it might say that the interests of the Conservative Party—and certainly many commentators have made this point—would be served by reinforcing the electoral rump of the Labour Party at the expense of that interesting new phenomenon on the political scene—the Alliance. The idea that it is in the interests of the Conservative Party to clobber the Labour Party's funding is grotesque.
As we know, political funding into the Labour Party comes through, as it were, a subscription method on union funds ticked off by employers. We are not proposing to change that, for the reasons I gave. That enormously helps the Labour Party, and I would hope that it would grow through political funding to help all parties, because there are many Tories, many SDP, and many Liberal members of trade unions. All we say is that these political purposes should not be funded out of the general funds.
Lord Houghton of Sowerby: May I utter a cautionary word here? To bring companies into any kind of relationship with the trade unions in regard to contributions to party funds will not help matters in the least. It may give a feeling of superficial fairness, but I warn the Committee that if shareholders were required to vote money to political parties through company meetings, company donations would

863
increase enormously. It is because the companies do not get shareholders' approval, or need not get shareholders' approval, for their political donations that they are so modest. When once they get shareholders' approval they will become much bolder.
Experience in Europe was not that the union contributions to political parties were causing any trouble, because no trade union movement in Europe was affiliated to the Social Democratic Parties there as the unions are affiliated to the Labour Party here. No, it was company donations which were the trouble. It was company donations which had to be stopped from becoming too great in relation to all other funding of political parties, especially when tax concessions went along with them. That is why the changeover to state aid came about in order to cleanse the whole system. Our system needs cleansing, and one day it will have to be done. I hope the Labour Party is not going to talk about tit-for-tat with the Conservatives on doing something to the companies that the Conservatives do to Labour. There is a much bigger and better remedy waiting to be accomplished than that.
Lord Dean of Beswick: I indicated when I started to speak on clause stand part that we were opposed to the clause standing part of the Bill. Therefore, we divide the House on this matter.
8.19 p.m.
On Question, Whether Clause 15 shall stand part of the Bill?
Their Lordships divided: Contents, 80; Not-Contents, 37.

DIVISION NO. 2

CONTENTS

Airey of Abingdon, B.

Gowrie, E.

Allerton, L.

Gray of Contin, L.

Auckland, L.

Gridley, L.

Avon, E.

Grimston of Westbury, L.

Bauer, L.

Hailsham of Saint Marylebone, L.

Belhaven and Stenton, L.

Bellwin, L.

Halsbury, E.

Beloff, L.

Hatherton, L.

Brookes, L.

Home of the Hirsel, L.

Brougham and Vaux, L.

Hornsby-Smith, B.

Caithness, E.

Hunter of Newington, L.

Cameron of Lochbroom, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Inglewood, L.

Campbell of Croy, L.

Kilmany, L.

Carnegy of Lour, B.

Kinloss, Ly.

Chelmer, L.

Lane-Fox, B.

Colwyn, L.

Long, V.

Cork and Orrery, E.

Lucas of Chilworth, L.

Craigavon, V.

Lyell, L.

Crathorne, L.

McAlpine of West Green, L.

Davidson, V.

MacLehose of Beoch, L.

Denham, L. [Teller.]

Masham of Ilton, B.

Effingham, E.

Maude of Stratford-upon-Avon, L.

Elles, B.

Elton, L.

Mersey, V.

Faithfull, B.

Montgomery of Alamein, V.

Fanshawe of Richmond, L.

Mottistone, L.

Fortescue, E.

Mountevans, L.

Gardner of Parkes, B.

Mountgarret, V.

Gibson-Watt, L.

Orkney, E.

Gisborough, L.

Pender, L.

Glanusk, L.

Rankeillour, L.

Glenarthur, L.

Renton, L.

864

Rochdale, V.

Tranmire, L.

Saint Oswald, L.

Trefgarne, L.

Savile, L.

Trumpington, B.

Sharples, B.

Ullswater, V.

Skelmersdale, L.

Vaux of Harrowden, L.

Stamp, L.

Windlesham, L.

Stodart of Leaston, L.

Wise, L.

Swinton, E. [Teller. ]

Young, B.

NOT-CONTENTS

Barnett, L.

John-Mackie, L.

Bottomley, L.

Lockwood, B.

Bowden, L.

McCarthy, L.

Brockway, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

MacLeod of Fuinary, L.

Cledwyn of Penrhos, L.

Mar, C.

Collison, L.

Mishcon, L.

David, B.

Nicol, B.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Elystan-Morgan, L.

Rhodes, L.

Ennals, L.

Stewart of Alvechurch, B.

Ewart-Biggs, B.

Stewart of Fulham, L.

Gallacher, L.

Stone, L.

Graham of Edmonton, L. [Teller.]

Taylor of Mansfield, L.

Underhill, L.

Hatch of Lusby, L.

Wedderburn of Charlton, L.

Houghton of Sowerby, L.

Wells-Pestell, L.

Howie of Troon, L.

White, B.

Jeger, B.

Resolved in the affirmative, and Clause 15 agreed to accordingly.
8.28 p.m.
The Earl of Gowrie The Earl of Gowrie moved Amendment No. 115A:
After Clause 15, insert the following new clause:
"(Collection of union dues by employers.
.—(1) Where any person who is a member of a trade union which has a political fund has certified in writing to his emloyer that, or to the effect that, he—

(a) is exempt from the obligation to contribute to that fund; or

(b) has, in accordance with the 1913 Act, notified the union in writing of his objection to contributing to it;

the employer to whom the certificate was given shall ensure that no amount representing a contribution to the political fund of the union is deducted by him from emoluments payable to the member.
(2) Subsection (1) above does not apply—

(a) before the first day, following the giving of the certificate, on which it is reasonably practicable for the employer to comply with it; or

(b) after the certificate is withdrawn.

(3) Where an employer—

(a) refuses (otherwise than to the extent required by subsection (1) above) to deduct any union dues from emoluments payable to any person who has given a certificate to him under this section; but

(b) continues to deduct union dues from emoluments payable to other members of the union;

he shall be taken to have failed to comply with this section unless he satisfies the court that his refusal is not attributble to the giving of that certificate or otherwise connected with the duty imposed by subsection (1) above.
(4) Where, on an application made by a person who claims that his employer has failed to comply with this section in deducting or refusing to deduct any amount from emoluments payable to him, the court is satisfied that there has been such a failure it shall make a declaration to that effect.
(5) Where the court makes such a declaration it may, if it considers it appropriate to do so in order to secure that the failure is not repeated, make an order requiring the employer to take, within such time as may be specified in the order, such steps in relation to emoluments payable by him to the applicant as may be so specified.
(6)The court having jurisdiction for the purposes of this section shall be the county court or, in Scotland, the sheriff court.
(7)This section has effect (with the omission of subsection (5)) in relation to employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown any functions conferred by any enactment as it has effect in relation to other employment.").
The noble Lord said: We now come to a new clause which I believe should command the overwhelming support of your Lordships' Committee. We can forget recent minor altercations about money. This concerns the system whereby employers undertake to collect trade union subscriptions from their employees' pay packets on a trade union's behalf—the so-called check off system.
It is not my purpose—nor does it come within the scope of this Bill—to deal with the merits or otherwise of the check off system in general. But the operation of this system has proved to be the cause of difficulty and considerable concern to many trade unionists in the context of the political levy. This concern was reflected in amendments put forward by a number of honourable friends and honourable Members on the Alliance Benches during Report stage in another place.
The problems associated with the check off in the context of the political levy were of course in the Government's mind well before the debate on the amendments to which I have just referred. The Green Paper indeed referred directly to the cause of concern with which this new clause is intended to deal. Suffice it to say that when the matter was raised at Report stage in another place my right honourable friend was glad to give an undertaking to bring forward a provision to deal with the problem. It is that provision which is now before your Lordships' Committee.
The problem is quite simply that, even when he has contracted out, a trade union member whose subscriptions are collected through the check off can find that he is still paying the political levy and that he is unable to require his employer to stop the deduction of the political levy element from his pay cheque. Some employers are prepared to operate lower rates of deduction for contracted-out members voluntarily; but I regret to say that this is not always the case. Where the employer is not prepared to vary the level of his deduction, the member concerned is faced with the task of obtaining refunds from his trade union on a continuing basis.
I would quite understand if your Lordships were to find this question of refunds rather odd. I did myself. It is based on a provision in Section 6 of the 1913 Act. This provision is pretty obscure stuff, but what it boils down to is that, where the political levy is collected as part of the general union subscription, the trade union member should be relieved of paying it and, so far as possible, this should happen at the time the subscription is collected. But this was before the days of the employer check-off; and what it has since been interpreted to mean in that context is that, where the levy is collected as part of the general subscription by the employer, it is sufficient for the union to make a refund of the amount involved. This refund should normally be made in advance,but—according to a judgment of the Employment Appeal Tribunal in the case of Reeves v. Transport and General Workers Union in 1980—where a refund in advance is for some
866
reason impossible, it may even be made after the political levy has been collected.
Many trade unionists find this need to obtain refunds of a levy which they are contracted out of paying quite unacceptable in principle, even if—as is supposed to happen—they receive the refunds in advance and without having to ask the trade union for them. What they find even more unacceptable is when they have to badger their trade union to provide refunds, when they do not receive them until months or years after the levy was collected, or—as sometimes happens—where they are required to attend a trade union office, or even a trade union branch meeting, to ask for their money back. The sums of money are not large. It is hardly surprising that some trade union members, when they are faced with such difficulties, simply decide not to bother. But just because some union members are prepared to put up with this situation, it does not mean that we should ignore the very genuine and entirely justified sense of grievance that many feel. It is just this sort of thing that has given contracting out a bad name.
I shall now quickly describe what is contained in the new clause. The key provision is subsection (1). This places a duty on an employer not to collect the political levy where an employee notifies him in writing that he is exempt from paying it or has notified his union of his wish to be exempt. Subsection (2) makes clear that the employer must comply as soon as is reasonably practicable. Subsection (3) makes clear that he will not be in compliance if he simply refuses to deduct any money at all from the member in question. Subsections (4) to (6) set out the remedies for failures to comply, and subsection (7) extends the provision to Crown employees, subject to the usual convention that enforceable orders of a court may not be made against the Crown. I commend the proposed new clause to the Committee.
Lord McCarthy: The noble Earl is starting as he began. His argument on this new clause is the same as all the arguments that he has used throughout the passage of this Bill. It is what I call the "exclusion principle". One simply says that trade unions are different. You do not have to say how they are different—they are different. You exclude them from all principles of similar treatment, equity, fairness and, now, even evidence. You do not have to have evidence if you want to do things to trade unions because they are different. They can be excluded from all evidence and all rationality. So, the noble Earl tells us that there is overwhelming support for the amendment. We are not given any evidence of that overwhelming support. His attitude is, "What I say three times is true".
The noble Earl tells us that a considerable number of trade unionists are concerned and that many find the present arrangements unacceptable. He tells us that people have badgered for months and for years and have had to go to their trade union branch meetings to get their money. He talks as though there are thousands and thousands and thousands of them all banging on the door of Transport House. No evidence is required because we are talking about trade unions. They have been excluded from the rules of evidence.

867
So we come to a detailed examination of what this is. It is suggested that a perfectly reasonable and, in an overwhelming number of cases, workable arrangement shall be changed. Why should it be changed? It is quite true that in another place the Secretary of State said that it was to be changed because of the considerable number of trade unionists who had been banging on his door. But more recently, in an exchange which he had with the TUC, as was widely reported in the Press, the Secretary of State gave somewhat different reasons. He said that he had to move in this direction because he was already under pressure to abolish the check-off altogether. He acknowledged the difficulties put to him by the TUC representatives in previous discussions on this matter, but the amendment he was proposing was the minimum he considered could be offered in response to considerable parliamentary pressure for much more far-reaching changes. Once again, this Bill ends as this Bill began.
We have had the Secretary of State in the other place and the noble Earl in this place justifying what they have done to their own Bill and what they have proposed during the course of their own Bill—none of which, of course, was envisaged in their own Green Paper—and justifying it by saying, "Look at the wild men behind us". But the noble Earl said, if I understand him—and I shall read Hansard with great care tomorrow to see if I do—that the Government do not plan to change the check-off and that they have no plans to do so. Perhaps he said they had no "present" plans; we shall see. Therefore, if there are no plans to change the check-off, I do not see why we need this provision.
Let us look at the problem which the noble Earl mentioned. Let us suppose that the block is the employer. Let us suppose that the problem is that the trade unionist who wants to stop paying the political levy cannot get the employer to give back the money. In the first place, of course, the trade unionist might be able to establish a case in a small claims court or, under Reeves v. Transport and General Workers Union, he can go to the union and obtain redress from the union if the employer refuses to cancel the checkoff and prays in aid the fact that he has an agreement with the union. If the block is the union, then, if you take into account not only Reeves v. Transport and General Workers Union but also Williams v. Butler, it is quite clear that the union is responsible if the union was informed.
The problem with the Williams v. Butler case is that there is no evidence that the complainant actually complained to the union. The problem was that he wanted to go to the employer without going to the union. Reasonably enough the court said, "If you have an understanding and an agreement with the union then the union is the one to cancel it". I say, therefore, that there is no substantial problem. I know of no significant numbers of cases where unions have refused to cancel check-off arrangements. Of course, it may be difficult to cancel them immediately. The certification officer says that in those circumstances the union must give the money back in advance. That is what the certification officer says and what the Employment Appeal Tribunal says. So the law is quite
868
clear. The number of cases where there are problems is extremely small.
Finally, of course, all this was gone through and is the reason why the TUC was so annoyed when the General Council saw the Secretary of State somewhat earlier in the day and discussed with him the general question of what to do about what the Government were thinking of doing about the political levy and the issue of contracting out. The TUC reached an agreement. At least, they thought they had reached an agreement. They thought that they reached an agreement with the Secretary of State that there would be no legislation dealing with contracting-in or contracting-out if the TUC agreed to issue a statement of guidance and circulate information sheets based upon that guidance. The Secretary of State said to the representatives of the TUC on that occasion that he would reserve his right to legislate if and when it appeared that the operation of the TUC statement of guidance was ineffective. Yet before the ink was dry, and before the passage of the Bill through the House, as a result of the madmen from behind, the Government bring in this amendment.
Lord Rochester: I cannot be expected to take responsibility for what may or may not have been agreed between the TUC and the Government; but I have to say that I support this amendment so far as it goes. My doubt is whether, if there is to be this basic change in the check off system, it goes quite far enough. As a matter of principle, why should not the levy be deducted from an employee's pay only if, as in the case of other deductions, the individual concerned has indicated positively that that is his wish? I hope that the Committee will not construe this as being an anti-trade union attitude on my part and that that has been sufficiently demonstrated by what I said on Part II of the Bill. It must also be apparent from the terms of Amendment No. 118 to which we shall soon be coming.
The fact is that my noble friends and I are opposed to all forms of corporate political funding; either by trade unions of the Labour Party or by business interests of the Conservative Party. But for so long as such arrangements continue they should in my view be based on considerations that are positive and voluntary and which enable the individual to disclose his political views to as small a number of people as is necessary in the circumstances. I shall not be pressing this point any further now. I simply wanted to draw the attention of the Committee to the principle involved here, for at a later stage I might wish to return to it.
The Earl of Gowrie: I am grateful to the noble Lord, Lord Rochester—who could hardly be described as either mad or behind me—for the support that he has given me on this amendment. It seems to me extraordinary that the noble Lord, Lord McCarthy, should defend the present state of the law. I must ask him why people should have to ask for refunds, and why should not contracting out mean what people think it means?
A number of examples were given in another place. There was the celebrated case of Mr. Cleminson who in 1977 discovered that he had being paying the political levy through the check off system without

869
receiving refunds for the previous 11 years. More recently there has been the quite extraordinary situation where 160 members of the National Association of Theatrical, Television and Kine Employees (all-important good men and women and true in my world of the arts) were unable to obtain refunds from their union up to three years after they had contracted out. I do not think the strictures of the noble Lord, Lord McCarthy, about my antiunionism—which is far from being the case—should be allowed to conceal that this is the correction of a small but very irritating anomaly to quite a significant number of people.
8.45 p.m.
On Question, Whether the said amendment (No. 115A) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 34.

DIVISION NO. 3

CONTENTS

Airedale, L.

Hatherton, L.

Airey of Abingdon, B.

Home of the Hirsel, L.

Allerton, L.

Hunter of Newington, L.

Attlee, E.

Hutchinson of Lullington, L.

Auckland, L.

Hylton-Foster, B.

Avon, E.

Inglewood, L.

Aylestone, L.

Kilmany, L.

Bauer, L.

Kilmarnock, L.

Belhaven and Stenton, L.

Lane-Fox, B.

Bellwin, L.

Lawrence, L.

Beloff, L.

Lloyd of Kilgerran, L.

Birdwood, L.

Long, V.

Broadbridge, L.

Lucas of Chilworth, L.

Brookes, L.

Lyell, L.

Brougham and Vaux, L.

McAlpine of West Green, L.

Caithness, E.

MacLehose of Beoch, L.

Cameron of Lochbroom, L.

Mar, C.

Campbell of Alloway, L.

Marshall of Leeds, L.

Campbell of Croy, L.

Masham of Ilton, B.

Carnegy of Lour, B.

Maude of Stratford-upon-Avon, L.

Chelmer, L.

Mersey, V.

Cockfield, L.

Meston, L.

Colwyn, L.

Minto, E.

Cork and Orrery, E.

Monson, L.

Craigavon, V.

Montgomery of Alamein, V.

Crathorne, L.

Mottistone, L.

Davidson, V.

Mountevans, L.

Denham, L. [Teller.]

Mountgarret, V.

Donaldson of Kingsbridge, L.

Pender, L.

Effingham, E.

Peyton of Yeovil, L.

Elles, B.

Rankeillour, L.

Elton, L.

Renton, L.

Faithfull, B.

Robson of Kiddington, B.

Fanshawe of Richmond, L.

Rochdale, V.

Foot, L.

Rochester, L.

Fortescue, E.

Saint Oswald, L.

Gardner of Parkes, B.

Savile, L.

Gibson-Watt, L.

Simon, V.

Gisborough, L.

Skelmersdale, L.

Glanusk, L.

Stodart of Leaston, L.

Glenarthur, L.

Swinton, E. [Teller.]

Gowrie, E.

Taylor of Gryfe, L.

Gray of Contin, L.

Tordoff, L.

Grey, E.

Tranmire, L.

Gridley, L.

Trefgarne, L.

Grimston of Westbury, L.

Trumpington, B.

Hailsham of Saint Marylebone, L.

Ullswater, V.

Halsbury, E.

Vaux of Harrowden, L.

Hampton, L.

Vickers, B.

Harris of Greenwich, L.

Walston, L.

870

Whaddon, L.

Wise, L.

Wigoder, L.

Young, B.

Windlesham, L.

NOT-CONTENTS

Barnett, L.

John-Mackie, L.

Bottomley, L.

Lockwood, B.

Bowden, L.

McCarthy, L.

Brockway, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

MacLeod of Fuinary, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Collison, L.

Nicol, B.

David, B.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Stewart of Alvechurch, B.

Elwyn-Jones, L.

Stewart of Fulham, L.

Elystan-Morgan, L.

Stoddart of Swindon, L.

Ennals, L.

Stone, L.

Ewart-Biggs, B.

Taylor of Blackburn, L.

Gifford, L.

Taylor of Mansfield, L.

Graham of Edmonton, L. [Teller.]

Underhill, L.

Hatch of Lusby, L.

Wedderburn of Charlton, L.

Jeger, B.

White, B.

Resolved in the affirmative, and amendment agreed to accordingly.
Clause 18 [Short Title, commencement and extent]:
8.53 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 116:
Page 20, line 2, after ("Part I") insert ("and Part II").
The noble Lord said: In my submission this is, if not the most important amendment that we have put down, one of the most important; and I would argue that it is one of the most reasonable because the Government have given us the case—at least they have given us the case so far as Part I of the Bill is concerned and also to some extent so far as Part III is concerned. Yet they have not given us the case so far as Part II is concerned; and to give us the case is what we ask for in this amendment. I want to take with Amendment No. 116, Amendment No. 117, which is essential for its effect.
Amendment No. 117: Page 20, line 4, leave out subsection (3).
The object of the amendment is to change the position whereby Part II—that is to say, that part of the Bill which deals with the strike ballot—comes into effect in the same way as Part I. Part I, as the Bill is now printed,
"shall come into effect on such day as the Secretary of State may by order made by statutory instrument appoint".
We suggest that should be the case for Part II of the Bill. The Government do not explain, and in another place have never explained, why they make a distinction in this respect between Part I and Part II. They have said, and indeed we can see in many of the arguments in the Green Paper, why a discretion has been given to the Secretary of State so far as Part I is concerned. It is normally accepted—and, as I say, this is there in the Green Paper—that Part I of the Bill will only work, and can only be expected to work, if time is given for trade unions to change their rule books.
The Government are often telling us that there is nothing in Part I of the Bill which does not exist already in some unions. We challenge that, but certainly there is no one union which does everything that is required in Part I of the Bill. Therefore, the Government presumably accept that the unions must

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be given time for rule book changes. They must be given time to use their constitutional machinery. Whether they have biannual delegate conferences or special rules revision conferences, however they set out it, their executive has to compose (and they will be complicated rules) new rules to bring into effect a system of direct elections under Part I of the Bill. Then the decision-making body of the union has to accept or reject them.
I hope it is the case that one of the reasons why the Government have said from time to time that several years may elapse before all unions will be expected to come into line on Part I of the Bill, is that they realise that it may be the case that a general secretary, an executive of a union, could quite honestly and sincerely use best endeavours to persuade the rule revision conference to take a particular point of view, and the rule revision conference could throw them out. Then the Government, I would have thought, would be reasonable enough to allow that union to call another conference and try again—at least maybe once again—before they brought the Act into effect in general terms, so far as they are concerned.
In all these ways the Government, in talking to the TUC and in their statements in another place, have been quite reasonable from the time point of view in terms of what they have expected to happen in relation to Part I of the Bill. And yet the Bill says:
"Part II shall come into force on the expiry of the period of two months beginning with the day on which this Act is passed".
In other words, if this Act were to come out of Parliament some time in July, August or September, before the end of the year, all trade unions in this country would be bound by Part II of the Bill.
Some of my more suspicious friends believe that this is so because the Government still want a little bit more law in reserve to use in the miners' dispute and if Part II of the Bill is effective then this might be some way in which they could force a ballot on the miners. I do not believe it. As I have said before, I subscribe to the "cock-up" and not to the "conspiracy" theory of history. I do not believe that this part of the schedule reads as it does because the Government think they are going to get this in for the miners' dispute. As I have said, there is plenty of law of all kinds lying about the place unused, both civil and criminal, which can be picked up any time anybody thinks it will help in the miners' dispute. I think it is a cock-up.
I do not believe they have thought through the consequences, and I think that is because where it is quite obvious that if you want to rule how somebody shall be elected or how a national executive shall be decided, you have to go to the rule book. And whereas the Government are very much aware that there are rules now, for example, in the GMBATU (and they will have to make vast changes as to how their executive is elected) they have not really cottoned on to the fact that there are rules about strikes; that all unions have something in the rule books about strikes.
If they did not have something in the rule book about strikes, they could not control the expenditure of strike funds and they would not be able to say whether a particular industrial action was authorised or unauthorised, which is essential for the financial
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viability of the union. So the rules of the union are every bit as important in governing the use of the strike weapon as the rules of the union are in the election of the executive committe.
Fortunately, the work on union rules in relation to strikes has been done for us, and done recently, by Undy and Martin. They have looked at 103 rule books, including all the rule books in the TUC. What comes out of their study is that. if anything, the existing rule books of British unions are further from the model which the Government wish to impose upon them under Part II of the Bill than they are from the model which the Government wish to impose upon them under Part I of the Bill.
After all, 60 per cent. of the unions directly elect their executive and 60 per cent. of the unions do not make provision for ballots on strikes. Most of those who do make such provision do not have mandatory ballots at all, they have discretionary ballots. They say that you may use a ballot but you do not have to use a ballot. You may use it or you may use one or another of the ways of sanctioning industrial action. I am not seeking to argue at this time whether that is right or wrong. I believe it is perfectly reasonable, but it will not be the law after this Bill is passed.
Therefore, if the Government are not in a position—and, again, some of my friends say that this is what they are trying to do—where they want to make it impossible for British trade unions to be lawful because they cannot change their rules in time, then they must give them time. I do not wish to say that the Government want to drive the trade union movement into illegality. The fact is—and the Government must try to make an imaginative leap and understand this—that unions cannot operate outside rules.
You cannot create a great constitutional legal system and then say, "Operate that in the way that the Bill says, irrespective of rules". That is not the way that things work. People authorised by the unions to take decisions are elected and appointed to take those decisions. If you want to bring them into conformity with another set of provisions, you must give them time to bring the rules into conformity with the law. That the Government appreciate in the case of constitutions and in the case of executives. Why do they not appreciate it in the case of strikes?
Think of the complications for a union which wants to abide by this Bill. Authorised strikes must have ballots. Only those who are affected by the strike must vote in the ballot. This is much more difficult to ensure in the case of strikes than it is in the case of constituencies in elections, because it is sometimes a multi-union question; and sometimes part of the branch is involved in the strike and part of the branch is not. Conventional union registers will not fit the frontiers of collective bargaining and new registers have to be compiled to fit the frontiers of collective bargaining. Time has to be given for this.
We are told that the voters must vote nil cost—at no cost to themselves. There must be an equal opportunity for all to vote. I believe that this will require considerable changes in the structure of unions, if they are to conform. Some branches may have to be merged. In some cases, postal ballots will have to be used, and if they are the ballots will be

873
expensive and unions will need to have money in order to carry out the ballots.
It is very easy for the Government to say—I have mentioned this before, but this is my last opportunity—"Go to the certification scheme under the 1980 Act". The Government know as well as I do that the formal position at the moment at the Trades Union Congress is that unions do not use the scheme. The Government may say that they must change. All right; but they must have time to change. They must have time to apply, and when they apply, if the future resembles the past, we know that that will take time.
Undy and Martin show that there have so far been 31 applications for ballot money for elections from non-TUC unions over a two-year period. Less than half have been successful, and most of them have been defeated on complex technical grounds. It is difficult enough to solve those complex technical objections when you are dealing with permanent constituencies: when you are dealing with shifting constituencies for strike ballots it is almost impossible. But whether it is impossible or possible you need time, and I beg the Government to give the trade union movement time by accepting this amendment. I beg to move.
The Deputy Chairman of Committees (Viscount Simon): Before I put this amendment, may I apologise to the Committee. In my hurry to get on with things I forgot to put the Question. Whether Clauses 16 and 17 shall stand part of the Bill? I shall put it now.
Clauses 16 and 17 agreed to.
The Earl of Gowrie: If I may, in the interests of getting on I shall not deal with the issues of Part I, because the noble Lord, Lord McCarthy, has very fairly said that the Government recognise that it would be unrealistic to expect unions to make changes overnight. That, in a nutshell, is why, subject to any further considerations which may be occasioned by our response to the amendment of my noble friend Lord Beloff, it is our intention to introduce Part I by a commencement order, so that it takes effect a little over a year after Royal Assent. That will provide the necessary time for unions to bring their arrangements into line with what Part I of the Bill requires.
I do not see, however that these concerns apply in any real sense to Part II of the Bill, because Part II faces trade unions with what is essentially a very simple proposition. If they intend to organise industrial action and wish to avoid liability under the civil law for doing so, they will need to hold a proper ballot first. The practical implications of holding a ballot will vary considerably, according to the scale and other circumstances of the industrial action which they may be contemplating.
Where this is on a small scale, there should be no difficulty in setting up the necessary arrangements in a short space of time. If, however they wish to call a large-scale strike soon after the commencement of this Part of the Bill, and they fail to prepare themselves properly to comply with the Bill's requirements, then I am afraid they will have only themselves to blame. The essential features of the balloting requirements will have been known to them for very many months. The exact requirements will have been known for two
874
months and more. They should therefore have no good reason for not being able to comply with these requirements. And even if they do not bother to exercise a modicum of foresight and planning, which is unlikely—trade unions have many able people either directly involved with them or assisting them professionally—all is still not lost.
The Government are far from requiring trade unions to organise strikes, still less strikes within a fixed time after commencement. If trade unions are not sufficiently organised to comply with Part II of the Bill, the solution is obvious. They should postpone the strike call until they are properly prepared. If they choose not to do so and thereby deprive themselves of immunity, it would be fair to say: on their own heads be it. They cannot blame the Government for the effects of having exercised their own freedom of choice.
The noble Lord, Lord McCarthy, raised the issue of the miners' strike. Even if one were to share his pessimism about the length of the miners' strike, the Bill does not apply retrospectively. It will apply only to new industrial action organised after commencement, not to industrial action already taking place. But certainly it is the case that if new groups of strikers were called on to take action in sympathy with the miners after commencement, their unions would need to take account of the provisions of the Bill. I should have thought that in those circumstances, most of their members would certainly want that to be the case. I can therefore see no grounds for departing from the standard minimum period between Royal Assent and commencement in relation to Part II of the Bill. In the light of what I have said, I hope that the noble Lords opposite will agree to withdraw their amendment.
Lord McCarthy: I am extremely disappointed by what the noble Earl has said. Perhaps it is my fault. Perhaps we should have found some way to introduce the amendment earlier. It points to a question which was not raised in another place. I readily accept that it was overlooked in another place. The noble Earl has his prepared brief and he answers in the prepared way; but the answers he has given will not do.
In the first half of his answer he seemed to be arguing for fragmented bargaining and suggesting that there are very few problems if you want to bring small pockets of workers out on strike—that that is all right and is easy—but that very difficult problems arise if you want large strikes; perhaps, therefore, trade unions should draw the conclusion and break up collective bargaining and company-wide, plant-wide, bargaining, and go back to shop floor bargaining in small groups, because anybody can run a ballot for 30 people.
That is not a responsible way in which to reply to a serious suggestion. The bargaining structure is a matter for the parties. A Government that constantly tell us they do not want to interfere should not interfere with the bargaining structure, especially when they do not know what they are doing. This was not done to fragment the bargaining structure. The Government are just digging up, an excuse which implies fragmentation of the bargaining structure and they are stuck with it.

875
The noble Earl also suggested that if you cannot get a proper ballot of your members you should hang about and not do anything; you should not strike until you can. This relates to something which is quite fundamental to the Government's philosophy and to which we are always drawing attention. The Government do not believe in trade unionism; they do not want trade unions to have effective sanctions; they do not want trade unions to have strike power, because if they do not have effective, lawful strike sanctions they will not strike. We believe that the trade unions have a role to play and a place in society, and their need to take effective industrial action must not be made unlawful. The trade unions must be given a little time. We shall come back to this matter on Report.
On Question, amendment negatived.
[Amendment No. 117 not moved.]
9.13 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 117A:
Page 20, line 6, leave out from ("shall") to the end of line and insert ("not come into force until such day as the Secretary of State may by order made by statutory instrument appoint; but the Secretary of State shall not appoint a day for this purpose until there shall have come into force legislation requiring gifts or other dispositions by a company for political purposes (within the meaning of subsection (3) of section 3 of the 1913 Act) to be made only from property which is available for distribution and which is kept in a separate political fund approved by ordinary resolution of the company, and giving members the right in respect of their shareholding in the company to contract out of their contribution to such gifts or dispositions.").
The noble Lord said: Amendment No. 117A, which I beg to move, proposes that Part III of the Bill should not come into force until there is parallel legislation for companies. There has been some debate in Committee on another clause about this matter but it is necessary to put shortly the specific case for this amendment, now that it arises. It is particularly necessary since the specific clauses which my noble friends and I put on the Marshalled List to deal with the matter in detail were found to be out of order and not relevant to the rules of procedure. A Bill dealing with the political funds of trade unions and employers' associations does not, it seems, allow for debate in detail on the political funds of companies. Until 1967, there was no provision in our law for political gifts and donations made by companies. As the noble Earl rightly said, companies are free to give on political objects. The reason that is so is, the courts never having held that because the definition of a company in our law does not expressly include mention of political objects, that therefore it was unlawful and ultra vires for companies to make political donations. It was precisely that finding—making the necessary change from company to trade union—that the Osborne case in 1910 made on trade unions. It is now seen, of course, as a totally erroneous interpretation of the doctrine of ultra vires and there is no book in the land that would uphold it. For trade unions there was the error of Osborne but for companies there was never any son of Osborne. Companies were free, as were other associations, to draw up their own rules and to act by majority—and
876
I stress, to act by majority—or according to such Articles of Association as they chose to adopt.
In 1967, companies were for the first time required to disclose gifts for political and charitable purposes by the Companies Act of that year. Section 19 of the Companies Act 1967 required that companies disclose the amount they gave for those purposes. That is still true, with a cut-off point of £200 below which disclosure is not required. The only requirement for companies is disclosure of the donation.
The noble Earl, Lord Gowrie, has more than once said in your Lordships' Committee that to compare trade unions with companies in this matter is not comparing like with like. The answer to that argument is twofold. First, were I free to do so, I would wish to extend the debate beyond companies and trade unions. It seems to me to be an issue of the law of associations; and all associations should be looked at and the law should be even-handed among them. We take the case of companies because, as a matter of practical affairs, companies are the most straightforward and directly relevant issue.
Secondly, there was the point made by the Jenkins Committee on company law in 1962, to which evidence was given in a company law investigation that the political donations of companies should be both disclosed (as, five years later, they were) and controlled. The Jenkins Committee presented in paragraph 51 a sentence which so expresses the curious establishment view of the matter that it needs to be stated in contrast to the way in which people sometimes see trade unions. The committee said this:
"We do not comment on the substance of these suggestions because we are quite clear that they are not primarily a matter of company law and that they raise constitutional issues which are outside our competence and which would affect other organisations besides companies".
The Jenkins Committee responded—as do most other committees—by stating that discussions of donations for political objects involve constitutional issues. That always goes for companies. It always goes for other associations. But it never goes for trade unions. As soon as a trade union comes along, the trade union is not allowed to decide the matter by a majority or in accordance with its rules but must have a special law because Osborne required a special law to be passed. We enter into a very curious, special debate in which, as my noble friend Lord McCarthy has suggested, different rules of logic are used.
This amendment does not try to go back on that history—as perhaps we should. I have some sympathy with my noble friend Lord Houghton in thinking it is time that the whole issue of the financing of political parties was examined in a sensible and overall manner. If that were the case, this particular issue would be subsumed within a much greater and more sensible inquiry. But that personal view of my own cannot avoid the need to confront reality as it is now. We are very unlikely to have any such investigation, let alone agreement, in the near future. Therefore, we ask: what is the fair way to proceed in the near future?
It is true that trade unions give money mainly to the Labour Party—it is not true that that is wholly so—and support Labour Party candidates. It is true that companies give money mainly either to the Conservative Party or to its front organisations, such

877
as British United Industrialists, which changed its corporate status in 1967 in order not to have to disclose its affairs as a company to the light of day.
In moving this amendment, I would suggest in the light of the reality we have now that the political donations of companies, to whichever party they are given, and of trade unions, to whichever party they are given, should be governed by parallel principles. I cannot understand at all why the position of companies involves constitutional issues, or merely issues relating to the shareholders, who can sell their shares, or some other curious position of that kind which does not apply to trade unions, while trade unions have a special need for regulation.
The only reason that we have the 1913 Act is the Osborne judgment and what followed. If noble Lords want to prove that point, let them look at the development of the political fund problem in relation to trade unions in every other country in the world. Each country has its own specialities; each country falls into its own historical curiosities. But none of them has encountered the development that ours has, because none of them had Osborne, son of Osborne, or anything in the Osborne family. The amendment is therefore asking the Committeee to say that, having had that, and, given that we cannot change it until we can have an overall inquiry into the matter of the financing of political parties, is it not fair that the same rule should apply to trade unions and at any rate companies?
I would say this to noble Lords on the Liberal Benches. I perfectly appreciate that it is a difference between us that they want contracting in and we believe quite sincerely that contracting out is fairer. It also brings greater benefit to the Labour Party, that is true. but it is not impossible to have a point of principle coincide with a point of expediency. That difference between us, however, one might have thought was smaller on this particular amendment and in relation to the noble Lords' own amendment, Amendment No. 118, albeit there are small drafting differences between them. But the point of principle is surely that trade unions and companies should be dealt with even-handedly, and it is on that basis of broad principle that I move this amendment in your Lordships' Committee. I beg to move.
Lord Rochester: This amendment seems to have come from behind in a late run, so to speak, to overtake Amendment No. 118 in the names of my noble friend Lord Aylestone and myself. My noble friend spoke to Amendment 118 briefly last night in introducing Amendment No. 90. The amendment which the noble Lord, Lord Wedderburn, has just moved, covers much the same ground as our amendments, but it goes further, as the noble Lord has acknowledged, in requiring political donations by companies to be made only from a separate political fund and that shareholders should have the right to contract out of that fund.
I do not want to enter again into the fairly heated exchanges that we had in that area a little time ago. All I think I need say for the purposes of responding to this amendment is that the basic purpose of Amendment No. 90, which my noble friend withdrew late last
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night, but to some form of which, as we gave notice we shall return on Report, was to provide for contracting in to the political fund of a trade union rather than contracting out.
I am afraid that I have to resist the blandishments of the noble Lord. There could hardly be a more basic difference than that between the two amendments, and I cannot support this one.
Lord Gray of Contin: The noble Lord, Lord Wedderburn, has as always given us a very interesting account of his reasons for supporting Amendment No. 117A, but I think that many of your Lordships would agree that everything he said merely confirmed that it is based on an entirely false analogy between trade unions and companies. The proper analogy is not with companies but with unincorporated employers' associations, and they are correctly covered by Clause 16(4) of the present Bill.
Companies are quite different. Their conduct is regulated by statute and by European directives in quite enormous detail, bearing no relation to trade union law. There are half-a-dozen Companies Acts in force, comprisng close to 1,000 sections and many detailed schedules. They are enforced by extensive and, where appropriate, severe criminal penalties, including imprisonment. One would therefore expect noble Lords opposite to be the first to say that company and trade union law are not in any way analogous.
On the particular subject of the amendment, there is no comparison between the position of an employee in a trade union with a political fund and the position of an investor deciding whether to buy shares in a particular company. There is a free market in company shares. You can choose to put your money in any of the many thousands of companies that make no political donations or in one of the smaller number that do. You can buy and sell as you please. No doubt this helps to explain why there has been so much public concern about the political funds of trade unions but scarcely any complaints from shareholders about political donations by companies.
Another reason is that there is no comparison between the amounts of money involved for the individual. Political expenditure by trade unions adds up to a significant sum by comparison with expenditure on members' benefits. On 1982 figures, if unions' political expenditure could have been used instead for members' benefits, benefits would have been 13 per cent. higher. The amendment would have something like this for companies, with contracting-out shareholders being paid an extra dividend representing their share of political expenditure. But how much would this be? Our latest figures, for 1,000 large companies in 1980, show political contributions coming on average to 0.046 per cent. of the total dividends—less than one two-thousandth part. A contracting-out shareholder would need a shareholding worth many thousands of pounds to win the price of a cup of tea.
This calculation strongly suggests that the relative minute amounts of companies' donations, all much smaller than those of the big unions, do not in practice affect the totals of dividend distributions at all. This

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amendment erects a false analogy based on a false premise.
Now let me come for a moment to the similar amendment which was moved by the noble Lord, Lord Rochester—Amendment No. 118.
Lord Rochester: If I may intervene, I did not move Amendment No. 118. I was certainly contrasting it with the amendment which is now before us.
Lord Gray of Contin: I accept that the noble Lord did not move the amendment; but if he did not move it he certainly spoke to it. I think he would agree that he did—as did his noble friend last night when speaking to Amendment No. 90—make reference to the subject. I think I have got the messsage and the point he was making in any case, and I shall do him the courtesy of trying to answer it.
I accept that the amendment is more moderate than that tabled by the noble Lord, Lord Wedderburn; but the noble Lords, Lord Rochester and Lord Aylestone, have made the same mistake in my view, drawing a false analogy between trade union law and company law. The Government do not propose to amend the existing law on political donations by companies. It was passed by a Labour Government in 1967. It requires the public dsclosure of all political donations exceeding £200. Investors can then judge for themselves whether the company has made a wise decision. If they wish, they can buy or sell shares in it accordingly.
Trade unionists have seen that the 1913 Act is not working as it should to protect their interests. That is why the present Bill has been introduced. Shareholders, on the other hand, are in general entirely satisfied with the Companies Act as it stands. They do not seek new rights or further protection. This Bill is not about the financing of political parties. It is about the conduct of trade unions. There is therefore no place in it for either of these amendments. I trust that the noble Lord, Lord Wedderburn, who moved his amendment will therefore consider withdrawing it.
Lord Wedderburn of Charlton: It is necessary to say just three things in response to the noble Lord, Lord Gray. First, one really cannot have one's blood made to run cold in this matter by being told that there are severe criminal penalties in the Companies Act for hundreds of offences. There is nothing in the Companies Act whatever about political funds or the like for companies. That is the point. There is about disclosure—that is common ground—but nothing more.
Secondly, the noble Lord suggests that really these amounts of political gifts by companies are not very large. They run to some £2 million a year, so far as can be seen. It is, of course, very difficult to establish how large they are, because not all of the amounts given to the front organisations, like British United Industrialists and the Economic League, are always put into
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the accounts. It is a matter of dispute exactly as to what the Act means in that respect. As a matter of fact, although we are not debating it, the noble Lord suggests that Amendment No. 118 is more moderate than Amendment No. 117A. In fact, its definition of political purposes is rather wider than ours, and I would have thought rather more radical in that respect.
Coming back to the amounts involved, the noble Lord suggests that the amount for each shareholder on his dividend would be very small if you use the contracting out mechanism that we suggested in our specific clauses that unhappily could not be debated because they could not come into play. It may be very small. But does the noble Lord realise that in the leading case of Reeves v. Transport and General Workers Union, one of the major areas for the Government to move an entire new clause, the member was claiming an amount of 32/52 of a penny per week? I agree that it may be a matter of principle to claim that amount. You cannot say that it is a large amount. There may be a shareholder who says in just the same way, "I don't want to sell my shares. I want the equivalent amount that I am entitled to". It seems to me precisely parallel, and it may be that there are small amounts involved in both cases.
The last point surely gives the whole game away. It is appropriate that we should come to it last. The noble Lord says that there is no analogy between trade unions and companies. The analogy is between unincorporated associations of employers' associations and trade unions. Unincorporated employers' associations! Imagine an unincorporated association of chief whips, our Chief Whip and the Chief Whip on the other side. They are unincorporated and they operate as an association of employers, employing us all. Then, suddenly, they incorporate themselves as a company. The noble Lord says that now they are totally different. Whereas the association before was analogous to a trade union, now, because it has undergone through the Companies Act that metaphysical transformation that, under the decision in Salomon v. Salomon, gave it in 1897 a separate identify from the members, it has become something quite different and is not analogous to a trade union.
Just how much sillier can this debate get than to say that an unincorporated employers' association is analogous to a trade union and is therefore in the Bill but that, if the employers' association incorporates, it has to come out of the Bill because it is a different entity and cannot have any control made over it because a grave constitutional issue is raised and following its incorporation it cannot possibly be discussed along with trade unions?
The final proof that trade unions are dealt with differently is contained, in my submission, in that wrong-headed suggestion of analogies. We shall not divide on the amendment. We shall, however leave it on the Order Paper. It will doubtless be negatived. However, it will remain there as a clear guide to the view that we take on this side of the Committee of the way in which the injustice of the law should in reality, in the short term at any rate, be put right.
On Question, amendment negatived.
9.35 p.m.
Lord Aylestone Lord Aylestone moved Amendment No. 118:
Page 20, line 6, leave out ("31st March 1985") and insert—
("such day as the Secretary of State may by order made by statutory instrument appoint; and the Secretary of State may not appoint a day for this purpose until there shall have come into force legislation requiring that any gift of money by a company for political purposes (as that expression is defined in section 19 of the Companies Act 1967) shall have first been approved by an ordinary resolution of that company.").
The noble Lord said: Late last night, or perhaps early this morning, I mentioned in passing, when we were dealing with the question of contracting in as against contracting out, that Amendment No. 118 had to be taken into consideration with it. The noble Lord, Lord Gray, seems to have replied to the debate on Amendment No. 118 at the same time as he replied to the debate on the previous amendment. It may be that the answer is the same.
But there are one or two points that I think we should make at this stage. First of all, this party, unlike the Government, unlike the Official Opposition, does not represent any particular section of the people of this country. We represent neither the trade unions nor big business. Our purpose is to endeavour to be fair-minded, to see that there is equity in every respect. The noble Lord, Lord Wedderburn, referred to what he called the small amount of money received from gifts from companies—presumably to the Conservative Party, because I think most of us accept that that is where it goes. I should like to make the point that we are not concerned with amounts of money; we are concerned with principle. It is the principle of the thing that concerns us mainly.
The trade union contributions to the Labour Party are approved in one way or another, sometimes by block votes, sometimes by ballot. But it is equally true that the charitable and the political donations of the companies are approved by resolution at annual meetings, very often by massive proxy votes. But massive proxy votes can be equated with massive block votes in the trade union movement, so in that respect there is equity. What we would wish to see, if it is at all possible, is Her Majesty's Government accepting the idea that it is the principle that matters and looking again at the 1967 Companies Act to see what can he done with it to make the position rather more even than it is at the moment.
If I were asked, standing on my feet, as it were, what sort of change could be made—and I appreciate that it is difficult—I should say that one simple change would be that a company which, by resolution passed at its annual meeting, decides to make a donation of—shall we say?—£5,000 to a political party, should state which political party that money is going to. That is not the position at the moment under the 1967 Act. On the other hand, one knows full well that, while all the money from the trade unions' political fund does not go to the Labour Party, the great majority of it does.
Our amendment seeks simply to delay the operation of Part III of the Bill, which is due to become operative on 31st March next year, until such time as the Secretary of State has been given an opportunity to look at the 1967 Companies Act and make an amendment or amendments which will bring rather more fairness between the two. I beg to move.
Lord Gray of Contin: I apologise to the noble Lord if I answered most of the points in my earlier remarks when I was dealing with the previous amendment. But I was somewhat misled by his noble friend when he referred to this amendment, and I had not appreciated that it was the noble Lord's intention to move it later. I apologise to him. I shall not weary the Committee by once again going through my brief with my answers to him. But he raised some additional points, and of course we shall look at them very carefully and read what he said. Indeed, I suspect that it would be more appropriate for me to draw much of what he said to the attention of colleagues, because it does not directly relate to the Bill.
As I explained, this Bill is not about the financing of political parties; it is about the conduct of trade unions. The points which the noble Lord made regarding what might happen with changes to company law would also, of course, be for another department rather than for the Department of Employment. No doubt those points will be carefully read by others and—who knows?—they may be taken into account, indeed, I am sure that they will be taken into account, if and when any future legislation is being considered. It is always useful for us to read what all sides of the House think on these matters if we are considering at any time any future legislation.
But in the meantime I shall conclude by saying that, while the amendment which stands in the name of the noble Lords for the Alliance Benches is in our view—although not obviously in the view of the principal Opposition—slightly more acceptable than the last amendment with which we dealt, I am afraid that we still believe that it suffers from the mistake of having the wrong analogy. We do not believe that the trade union movement and the funding of political activities can be compared directly with company law which we see in a totally different light. I see that the noble Lord, Lord Wedderburn, is smiling as I say that. What I mean is that we see it in a different set of laws and regulations altogether. To compare the two is erroneous. For that reason I hope that the noble Lords might be prepared to withdraw their amendment.
Lord Aylestone: In view of the fact that the noble Lord has given an undertaking that the government will look at and will consider what we have had to say, I think that perhaps we can return to this matter at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 119 not moved.]
Clause 18 agreed to.
In the Title:
The Earl of Gowrie The Earl of Gowrie moved Amendment No. 120:
Line 5, after ("unions") insert ("and unincorporated employers' associations").
The noble Earl said: This amendment to the Long Title of the Bill is necessary because the provisions of Part III relating to expenditure on political objects apply both to trade unions and to employers' associations. This follows the precedent set by the existing provisions of the 1913 Act. The amendment is necessary to ensure that this aspect is covered in the Long Title and I commend it to the Committee on that basis. I beg to move.
On Question, amendment agreed to.
[Amendment No. 121 not moved.]
Title, as amended, agreed to.
House resumed: Bill reported with the amendments.

London Transport Bill
Brought from the Commons: read a first time and referred to the Examiners.
London Regional Transport Bill
Returned from the Commons with the amendments agreed to.
Rates Bill
Returned from the Commons with the amendments agreed to.

Royal Assent
The Deputy Speaker (Lord Wells-Pestell): My Lords. I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Somerset House Act,

Public Health (Control of' Disease) Act.

Registered Homes Act,

Dentists Act,

Betting, Gaming and Lotteries (Amendment) Act,

Inshore Fishing (Scotland) Act,

Road Traffic Regulation Act,

County Courts Act,

Housing and Building Control Act,

Food Act,

Rating and Valuation (Amendment) (Scotland) Act, London Regional Transport Act,

Rates Act.

Barclays Bank Act.

Police and Criminal Evidence Bill
9.46 p.m.
House again in Committee on Clause 109.
[Amendment No. 17 not moved.]
Lord Monson Lord Monson moved Amendment No. 18:
Page 95, line 37, after first ("or) insert ("serious arrestable").
The noble Lord said: I beg to move Amendment No. 18, and with the leave of the Committee at the same time I shall speak to Amendment No. 19, which is consequential.
Amendment No. 19: Page 95, line 37, at end insert ("serious arrestable").
These are rather more important amendments than might be apparent at first sight. Their purpose is to correct a glaring anomaly. Whereas Schedule 5 lists a short number of offences that are automatically classified as serious arrestable ones, Clause 109 defines the phrase "serious arrestable offence" in terms of the grave consequences to the state or to individuals that
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might in practice result from certain actions which in themselves are not invariably serious. For example, these include serious harm to state security, death or serious injury to any person, or serious financial loss to any person. We can all agree on the grave nature of these consequences and that therefore the action which caused them ought rightly to be a serious arrestable offence.
However, that is not the case with the latter part of subsection (6)(b). As that subsection stands, serious interference with the investigation of even a trivial offence becomes itself a serious arrestable offence. For example. if a man steals a bottle of milk from a doorstep because he happens to be hungry or thirsty, he would commit a theft—an offence for which he can be arrested. It would be the duty of a policeman who witnessed the act so to arrest him. But surely nobody would argue that the thief's act should be classified as a serious arrestable offence.
Yet if a friend or neighbour of the thief who witnessed the theft tried to cover up for him by asserting to the police, for example, that the culprit was several hundred miles away on the morning in question or gave some other alibi which was untrue, he or she—that is to say the friend or neighbour—would, as the subsection stands, be guilty of a serious arrestable offence, with all the grave consequences that flow therefrom. This amendment is designed to ensure that it is only serious interference with the investigation of offences which are themselves serious—if that is not complicating matters too much for the Committee—that is classified as serious. I beg to move.
Lord Elton: The noble Lord. Lord Monson, has pointed out that certain offences are serious arrestable offences in any case. They are set out in Schedule 5, and that is dependent on subsection (2) of Clause 109, which is the clause we are looking at. I do not think he intended to infer that there was an inconsistency there. What he seeks to change is the basis on which a person may be considered as committing a serious arrestable offence if he interferes in what we call the administration of justice, and what the noble and learned Lord, Lord Elwyn-Jones, would like us to call the course of justice.
The noble Lord argues that what should be the touchstone in this matter should be the seriousness of the offence to which the course of justice refers. We feel rather strongly that what matters is the seriousness of the interference with justice. If a constable investigates, for instance, a case of illegal entry into this country. or the assisting of an illegal entry into this country, those are two different things. Assisting an illegal entry into this country is a serious offence punishable by seven years' imprisonment, whereas the offence of illegal entry itself is not an arrestable offence in the first place. so it can never be a serious arrestable offence. But the interference with the course of justice, the suborning of policemen, the attempt to divert the justice of the courts, can be very serious or minimal in either case. Therefore, I hope that the noble Lord will leave the Bill as it is.
Lord Monson: I had hoped to get the opinion of one or two noble and learned Lords on this, but no one

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seems to have leapt to my defence on it. I take Lord Elton's point about the difference between illegal entry and facilitating, or covering up, illegal entry. Naturally, he has chosen an example favourable to his own case. I still maintain that nobody can seriously argue that it is much more heinous to cover up the theft of a bottle of milk than actually to steal that bottle of milk.
The noble Lord's answer partially satisfies me, but only partially. I should like to think about it again and possibly come back to it at the next stage. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 95, line 41, leave out paragraph (e).
The noble Lord said: I wonder whether I may be permitted to remind the Committee shortly in regard to serious arrestable offences that the powers of the police can be exercised only if it is reasonably suspected that such an offence has been committed.
The way in which "serious arrestable offence" governs this Bill can best be summarised in the following way: it affects and governs Clause 4, the setting up of a road check; it governs Clauses 8 and 9, powers to enter and search for evidence of a serious arrestable offence; it governs Clause 40, detention beyond 24 hours for the investigation of a serious arrestable offence; it governs Clause 54, the delay in exercise of the right to have someone informed on arrest; it governs Clause 56, the delay in access to legal advice; and it governs Clause 59, the power to take intimate body samples. When we reach the definition of a "serious arrestable offence" we are obviously dealing with one of the most important, if not the most important, definitions in the Bill.
Amendment No. 20 considers one of those aspects in subsection (6)(e):
"The consequences mentioned in subsection (3) and (4) above are…(e) substantial financial gain to any person".
It is obviously important when a police officer is endeavouring to see whether a serious arrestable offence has been committed that there is a clear objective test by which he can be guided. That applies to any superior officer who may be giving him directions. I cannot think of a more subjective test, instead of what ought to be an objective test, than paragraph (e) which is,
"substantial financial gain to any person".
Many of us might discuss what a substantial financial gain might be. In a fraud case "substantial financial gain" may only be measured in the City, for example, if it reaches £500,000. A substantial financial gain in one of the streets of Brixton may be—
Lord Donaldson of Kingsbridge: A pony!
Lord Mishcon: The noble Lord, Lord Donaldson, always helps me. I am grateful. He was not thinking in terms of a small horse, either! But in Brixton in one of the back-streets a "substantial financial gain" from a subjective point of view, not an objective one, may be the fact that one person has managed to rob another by some deception of the sum of £10. This, therefore, is
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a most unsatisfactory way of dealing with a "serious arrestable offence".
There is no point in my embellishing the argument any further. I have made the point and in those circumstances we are asking that paragraph (e) be omitted. I should say that both with this amendment and the next amendment, I am speaking to Amendment No. 24 which seeks to leave out subsection (7).
Amendment No. 24: Page 96, line 1, leave out subsection (7).
In that subsection the definition is as follows—one cannot imagine anything aiding more a subjective view than:
"Loss is serious for the purposes of this section if, having regard to all the circumstances, it is serious for the person who suffers it".
In exactly the same way a financial gain, presumably, is also to be interpreted in some such way if it amounts to a substantial gain from the point of view of the person receiving it or the person who is suffering it. I would not know which it was or whether it is both. On any view this is an unsatisfactory clause in the Bill, dealing as it does—I repeat this for the last time—with the definition of "serious arrestable offence" which governs all the major parts of this Bill. I beg to move.
Lord Donaldson of Kingsbridge: From these Benches we entirely support what the noble Lord has said. These definitions are trying to give clear instructions to police officers who have to make up their minds in difficult and rather intense circumstances. Paragraph (e)—we shall come to paragraph (f) shortly—seems to be the sort of thing that no police officer in a position of this kind could possibly be expected to take into account because it is entirely unclear. It has no specific meaning of any kind. It might be £1 million or it might be 7s. 6d. But it is beneath contempt as an attempt to give a really accurate simple criterion to the policeman on what he can legitimately take action. We support the motion to reject this.
10 p.m.
Lord Gifford: When we come to consider serious arrestable offences, we are going to the heart of one of the Government's justifications for their Bill; which is that it contains safeguards in the case of the powers—often very extreme ones—which are given to the police. In due course we shall come to debate those powers and I do not want to trespass upon that debate; but we know it is going to be said again and again when we come to the powers which my noble friend has enumerated, "Do not worry that these clauses give the police considerable power. There are safeguards. The powers can only be exercised in the case of serious arrestable offences".
When one looks at this compendious definition of a serious arrestable offence it is ludicrous to talk about an effective safeguard being built into the Bill. My noble friend has spoken eloquently about the concept of substantial financial gain. Remember, that it does not have to be proved that there has been substantial financial gain. The supposed safeguard is that the constable must have reasonable cause to believe—that is subjective—that the commission of the offence is intended to, or is likely to lead—that, again, is

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subjective—to substantial financial gain. Again, that is subjective. Almost any set of circumstances above the merely trivial for which people are in custody can be classed as a serious arrestable offence under these criteria. The Government really have to do better with their definition of serious arrestable offences if they are to persuade us that there is any effective safeguard against some of the very serious powers granted in later parts of the Bill.
Lord Monson: I, too, have an amendment, Amendment No. 23, the object of which is to try to clarify the definition of "substantial financial gain" contained in subsection (6)(e). Unlike the noble Lord, Lord Mishcon, I would rather the word "substantial" was not deleted altogether but merely defined more precisely. It might be for the convenience of the Committee if I spoke to my amendment now because it ties in with what the noble Lord, Lord Mishcon, said.
Amendment No. 23: Page 95. line 42, at end insert—
("( ) A gain is substantial for the purposes of this section if it exceeds an amount equivalent to twenty-eight weekly payments of the state retirement pension for a single person at the rate currently in force.").
I agree with the noble Lord, and with all the other speakers so far, that the definition in the Bill as it stands is much too subjective. What is a substantial gain? Is it £50. £100, £ 1.000, £5,000 or £20,000?
My amendment is a probing amendment. Its rather convoluted wording is designed to set the threshold of what is classified as "substantial" at £1,000 in real terms: that is, inflation-adjusted terms. That is on the assumption that the Government have £1,000 in mind as the figure which we should be looking at. Twenty-eight weekly payments of the retirement pension for a single person as from November this year will come to £1.00240 and obviously this sum will be adjusted annually in line with inflation. Of course, if what the Government have in mind is £10,000, or £500, or whatever, the definition could be altered: but clearly it is desirable to keep the sum constant in real terms. As I said, it may be that the Government have in mind something very much larger or smaller; but, one way or another, there ought to be a precise, or almost totally precise, definition of what "substantial" means.
Lord Hutchinson of Lullington: May I add one practical point about this, looking at it as a practitioner? What is to happen in court when one wishes to take the point that in fact the officer behaved unlawfully because permission was given, quite wrongly, to keep a man in custody for an extra 36 or 96 hours although it was not a serious arrestable offence? Why not? Well, because there was no substantial financial gain to any person. The judge will have to decide whether in his view it was a substantial financial gain or a serious financial loss. I would suggest that all experience would indicate that one judge would consider a certain sum of money was serious; another judge would decide that it was not. It would be a quite impossible situation. One could not have a precedent about it: one could not have anything to which to refer about it. It would be as long as the arm of the particular judge who was sitting. I would suggest that that
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highlights the hopelessness of paragraphs (e) and (f) and the sooner they go the better.
Lord Elton: The first amendment of this group, Amendment No. 20, would remove paragraph (e) from subsection (6). Paragraph (e) provides that an arrestable offence is serious if one of its consequences is or is intended to be
"substantial financial gain to any person".
It may be that it lurks at the back of your Lordships' minds that we are in any case addressing ourselves to substantial financial loss and there is a degree of definition there, and maybe every loss has its reciprocal gain. But of course that is not the case because I have only to cite the example of the owner of a chain of brothels, for instance, who would be in receipt of very considerable financial gain with nobody identifiable as suffering substantial financial loss. Whereas it would be perhaps quite easy to discover the people running those establishments, the difficult thing would be to discover the person in the background who is raking in the real money. I think your Lordships would agree that the powers in Part II of the Bill could appropriately be used for that purpose. It is clear that we need some indication of the magnitude of the financial gain involved.
We are dealing with what is termed "substantial gain". Noble Lords are concerned to define what is meant by "substantial". The noble Lord, Lord Monson, has taken an amount in excess of 28 times the weekly state pension for a single person. He has seen the need for the yardstick and he has sought to define something which is precise, and I accept to a certain degree flexible, because it is the Government's business to keep that rate of pension moving in line with inflation. Even that meritorious approach has its difficulty. I have only to say that at present the yardstick he has devised would give a watershed—if that is the right term—of £953.40 and from, I think, 5th November, if Parliament agrees, that yardstick will go up to £1002.40. If the amendment were accepted. one would have the A. P. Herbert difficulty that something that was a serious arrestable offence in November had not been one in October. So there is a difficulty here.
Although there are various other difficulties about the pension. I take the point that the noble Lord is advancing. One problem is that it is difficult to find a yardstick which either moves or does not move which does not get one into difficulties on the margin. I think that this would actually lead to an increase in the difficulty of the work of the police without introducing any great safeguard. Under the Bill as drafted, if the police exercise a reserve power in the case of the offence which does not on a common-sense basis involve a substantial gain, they can be called to account for that in the courts.
The other amendments in this group attack subsections (6)(f) and (7) of the clause. What the Bill as drafted is saying is, 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. That will be true, of course, of substantial financial gain as well.

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This is not a new idea and it is a requirement in the Bill that it should be taken into account in the case of serious financial loss. It has been for long 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. And of course the precedent is a good deal older than that, because the incorporating of that element in the judgment of an offence and the value of money to individuals goes back, as is well illustrated in the parable of the widow's mite, for nearly 2,000 years. That lady parted with her money voluntarily, but, had it been taken from her by theft, the loss would have been serious to her but not to many others.
Subsection (7) does not introduce the subjective element into the definition to the extent that your Lordships might perhaps think. It states that loss is serious if—
Lord Mishcon: I hesitate to interrupt the noble Lord the Minister, but I am sure he would want me to. I have merely moved to delete paragraph (e), and I made that abundantly clear, or, if I did not make it clear enough to the noble Lord the Minister, I apologise. I have moved only Amendment No. 20 and I referred to Amendment No. 24. As I understand it, the noble Lord, Lord Monson, trying to make one debate of it, also dealt with the question of substantial gain.
Lord Elton: I have been caught a little unawares because I saw a list of groupings which in fact included Amendments Nos. 20, 21, 22, 23 and 24, and I understood that those had been accepted through the usual channels. But, as the noble Lord ought to have been at the end of the usual channels, obviously something has gone wrong.
Lord Mishcon: Can I help? I will do so with the greatest of pleasure, because this will help to abbreviate the proceedings and we are all anxious to do that. If the noble Lord the Minister, in his kindness, will go on to deal with the question of financial loss as well as gain, I will then answer him. But I hope he will realise that there are two separate points. One may fail on one, one may win on both. but one may also lose on both; and maybe this will be dealt with at another time in the Bill. But, if the noble Lord wants to make one debate of it. I am not going to stop him.
Lord Elton: I am quite content to stop at that point in dealing with this. I do not know what the military analogy is for converting a counter-attack into an attack so that one can counter-attack it oneself—but I shall not be led into that. We come back to this question of the test of what is substantial. I return again to the question: what sort of yardstick can we provide? I think the Committee will agree that we cannot manage without this test. I chose only one example for brevity, but I think it is quite clear that we do need the test for the use of these powers. What is in the Bill is a common-sense approach which can be tested in the courts if it is in doubt and it does not lead to the difficulties that we find in every alternative; but I do not think we can just take it out, and at the moment that seems to be all that is offered to us.
Lord Wigoder: Having listened to this argument with, as always, a completely open mind, I really find myself inclined to sympathise with the views put forward by the noble Lord the Minister. May I take a particular example and invite the noble Lord, Lord Mishcon, to deal with it? Let us suppose that there is an armed robbery in which the arms carried are pickaxe handles and not firearms. That, as I understand the Bill, would not be a serious arrestable offence under Part I of Schedule 5: nor would it he a serious arrestable offence under Part II of Schedule 5, unless in fact firearms were carried. Therefore, in order to make it a serious arrestable offence, which I rather assume that the noble Lord, Lord Mishcon, would agree that it was, one would have to bring it somehow under the provisions of subsection (6). I suppose one might argue that such an armed robbery was likely to have the consequence of causing serious injury to any person, but it is a slightly artificial approach to the problem. The common-sense approach, surely, is that a robbery of that sort is something of which the likely consequence is to cause substantial financial gain.
Having said that, and therefore indicating that I sympathise with the way in which the noble Lord the Minister has put his case, may I say that I also agree with much that has been said about the looseness of the wording of this proviso in paragraph (e)? I venture to say to the noble Lord, Lord Mishcon, that if he and those who have spoken alongside him wish to criticise the wording, I would agree with that. But I think there is a point of substance there and that those of us who criticise the wording ought somehow to find some better alternative to deal with the same point.
Lord Simon of Glaisdale: It seems to me that one needs something on the lines of paragraphs (e) and (f), but there is great force in what the noble Lord, Lord Mishcon, and the noble Lord, Lord Gifford, have said by way of criticism of the word "substantial". I wonder whether the key does not rest in subsection (7), which could be rephrased to take in the word "substantial" and loss and gain as well.
Lord Mishcon: I have no doubt at all, if I may say so in all humility, that the words in paragraph (e), and possibly I ought to embrace paragraph (f) as well, cannot stand. Quite obviously, it may very well be that the thing to do—and I am grateful to the noble and learned Lord, Lord Simon of Glaisdale—between Committee stage and Report stage is to see whether the combined wisdom, which, of course, is exceeding great. of the Government Front Bench and those who are interested in this amendment can lead to a practical solution. Paragraph (e) cannot stand for this reason and I am grateful to the noble Lord, Lord Wigoder, for his balanced arguments, in the sense that he could see arguments for and arguments against.
But he gave the example of some people armed with pickaxes and committing some sort of robbery. The extraordinary thing here, unless I am very wrong, is that this relates only to the consequences of the act, so you may have all the seriousness of the pickaxes and all the villainy of the people concerned, but if when they got into the premises they found only £5 in the petty cash box and that is all they took out, you would get a situation where this would not apply, because

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they had not got, on any view at all, a substantial financial gain, whereas if they managed to find £500,000 there they would have done—
Lord Wigoder: It might be said to have been intended to lead to the consequence of financial gain, even if there was only £5 there.
10.15 p.m.
Lord Mishcon: That, too, is a matter of guesswork and that is why it cannot stand. The noble Lord the Minister dealt with the fact that there is a precedent and that judges have to look at this sort of thing when sentencing and so on. This is an entirely different matter. This is a police officer having to make a judgment. I do not even know, since there is no guidance on financial gain such as there is in subsection (7) on financial loss, whether the substantial gain has to relate to the means of the person who got it, or whether it has to relate to the person who loses what the other person has gained. I just do not know. In other words, are we saying that if you happen to be a millionaire in the City and there is a gain of only £ ¼ million it cannot possibly be deemed to be substantial because of your other wealth? And does it mean, in regard to some poor man who is on a weekly salary of, let us say, £40 or £50 a week that if he gets the equivalent of one week's salary as a result of his evildoing it is not substantial from his point of view? What is the yardstick? What is the guide?
Therefore. the constructive thing to do, following the noble and learned Lord's helpful intervention, is to take the following course of action. There is no point in trying to divide the Committee on paragraph (e). The sensible course for me to take is to withdraw my amendment: for the noble Lord the Minister, with his usual broadmindedness, to admit that there is some cogency in the speeches which he has heard tonight from various parts of your Lordships' Committee: and for us to see whether there is a way, either by means of a new Government approach or by our own approach, to find a constructive solution.
While I am on my feet, and only to save the time of the Committee since the noble Lord the Minister dealt with paragraph (f), may I say again that here there is guidance, in the sense that subsection (7) tells one quite frankly that the loss is serious for the purposes of the section if. having regard to all the circumstances—and the poor police officer has to have in mind all the circumstances—it is serious for the person who suffers it. This may depend upon the miserliness of the person who is asking for the police officer's assistance because a crime has been committed. He may have tears running down his face when he says he has been robbed of £5 which means the world to him, in spite of the fact that the police officer may know he is rather a wealthy man. On the other hand, there may well be a poor man who, not wanting to make a terrible fuss, says, "If I've lost £2, officer. I suppose I've lost it". What is the poor police officer to do in trying to make a judgment in these circumstances?
Again, I shall repeat my favourite phrase today: I do not embellish the argument by repeating it. However, all of us must think seriously about it. I hope that if I withdraw the amendment the noble Lord the Minister
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will give an assurance that he and his advisers will give Thought to clearing up what at the moment is an unholy mess in paragraphs (e) and (f).
Lord Elton: I would not subscribe to the phrase "an unholy mess". I see that the noble Lord has aptly put his finger on some difficulties. We are concerned not merely with the wisdom which comes from the reflections of judges but also with the decisions which have to be taken by policemen in the field. and I would wish to be satisfied that what is provided is workmanlike. But I have shown to your Lordships some of the difficulties which are set around the path which has been suggested. If we are to relate the substantialness of the financial gain to the criminal, I would not want to think that rich criminals would get away with more than poor criminals.
In other words, there are traps all around us. We are aware of them, and I shall not weary your Lordships by talking further about them. Much thought will be given between now and the next stage to the matter. I cannot guarantee that I shall come forward with anything, though I think I can guarantee that the noble Lord, Lord Mishcon, will if I fail to do so.
Lord Mishcon: I am grateful to the noble Lord the Minister. I shall waste no further time. I beg leave to withdraw in regard to both paragraph (e) and paragraph (f). At the same time. having dealt with Amendment No. 24, may I give notice now that I do not intend to move it.
Amendment, by leave, withdrawn.
[Amendment No. 21 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 22:
Page 95, line 42, leave out ("serious") and insert ("substantial").
The noble Lord said: This was a long stop in case the arguments relating to Amendments Nos. 20 and 21 failed. Then one at least wanted to insert the word "substantial" instead of the word "serious", although that was not thought to be a solution to the problem. In view of the exchange between the noble Lord the Minister and myself, the amendment is not moved.
[Amendment No. 22 not moved.]
Lord Monson Lord Monson moved Amendment No. 23: [Printed earlier: col 887.]
The noble Lord said: I beg to move Amendment No. 23. I have already spoken to this amendment to some extent, but perhaps I may have another small bite at the same cherry. The noble Lord. Lord Elton, pointed out the definition in my amendment of what is substantial would lead at the present time to a borderline figure of around £950. I had assumed, perhaps pessimistically, that this Bill would not receive its Royal Assent until October. That is why I specified the period of 28 weeks, which would have made for a payment of about £1.000 by mid-November. That is the reason I worded the amendment in the manner I did.
I do not intend to press this amendment but I should like to have some indication from the Minister of the kind of figure the Government have in mind. Is it a two

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digit sum, or a three digit sum, or a five digit sum, or what?
A remark that was made by the noble Lord, Lord Mishcon, led me to think of something else. The subsection states that any action intended to lead to
"substantial financial gain to any person"
is caught. When a pickpocket goes into an Underground train and tries to size up a potential victim, he hopes to make a very substantial gain. If he is lucky and finds someone from the Middle East who is about to embark on a shoplifting spree (because invariably such people seem to have several thousand pounds in their wallets when they are apprehended and taken before the courts) he may make a "substantial financial gain". But he may be unlucky and he ma., find somebody who has only £5 and a couple of credit cards. In any event, the pickpocket's intention is to secure "substantial financial gain". On this basis, it would seem that every pickpocket, and every burglar, too, would find their offences treated as serious arrestable offences unless some definition is made. Can the Minister give some indication, however approximate, of the kind of figure the Government have in mind? Is it £100, £1,000, £10,000, or what?
Lord Elton: I cannot usefully speak very long to the noble Lord's amendment. I will merely say that I believe the amount will vary with the circumstances. I do not think that aspect concerns noble Lords. I think that what does concern noble Lords is that the circumstances may be interpreted differently when seen by different people. Therefore, I would hesitate to put a figure at this stage but I have noted what the noble Lord has said.
Lord Monson: I am pleased to know that the noble Lord, Lord Mishcon, and others intend to return to this point at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
10.28 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 25:
Page 96, line 4, leave out ("any disease and").
The noble and learned Lord said: One of the consequences of crime for the purposes of the definition of a serious arrestable offence is serious injury to any person. As your Lordships will see from line 4 on page 96 of the Bill, injury is defined as including "any disease". The point on which we should like to be enlightened is this: how does disease creep into this sombre picture? How does it happen? Is it the infliction of a nefarious umbrella, with some horrid object at the end of it, to reduce the victim to a condition of decline and decay? Does it have any sexual implications? What is it about? That is all we want to know.
Lord Elton: It is about poisoning. Need I say more? I will say more.
It is clear that an offence which leads to serious disease, or is likely or intended so to do, could be a serious arrestable offence. One has only to think of a
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case of intentional poisoning, or the recent case in Mexico in which scrap metal of no great intrinsic value was stolen but which, unknown to the thieves who proceeded to cut it up, contained radioactive pellets. If such a case happened here, it might well be expedient for the police to set up a road check following the theft so that those responsible could be apprehended before they released the radioactivity. That is why the trigger is in the Bill at that point.
Lord Elwyn-Jones: It certainly deserves a trigger, if those are the circumstances. On my circuit we were not unfamiliar with arsenic, if I may say so. It is an old-fashioned custom now, of course. It no longer happens. It is no longer said of a certain town known as Talsarnau that it is better known as "Tals-arsenic", after a famous case in which I had the privilege of appearing for a lady who was honourably acquitted. I shall not press the Minister further in the circumstances.
Lord Wigoder: Not only was it not unknown on the circuit of the noble and learned Lord: it was almost a monopoly on that circuit.
Lord Elwyn-Jones: While rejecting that abuse, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 109 agreed to.
Schedule 5 [Serious arrestable offences]:
The Deputy Chairman of Committees (Lord Wells-Pestell): Amendments Nos. 26 and 27 are printed in the wrong order, so I call Amendment No. 27.
Lord Monson Lord Monson moved Amendment No. 27:
Page 108, line 20, at end insert—
("2A. Causing death by reckless or dangerous driving.")
The noble Lord said: A week ago today, the noble and learned Lord the Lord Chief Justice declared, according to The Times, that:
"Courts were regarding the offence of causing death by driving recklessly as less serious than in fact it was—less serious than Parliament intended it to be and less serious than the public in general regarded it".
I am sure that a mighty chorus of "Hear, hear!" went up from throats all over the land. It certainly went up from mine. The purpose of this amendment is to mark parliamentary and public disapproval of this heinous offence by classifying it as a serious arrestable offence in the same way as murder and manslaughter are already so classified.
It could be argued, and probably will be argued by the noble Lord, Lord Elton, that this offence is already accidentally included, as it were, by the catch-all provisions of Clause 109(6)(c), which defines any offence resulting in,
"the death of any person".
as a serious arrestable offence. That is true. But precisely the same arguments could be used to justify excluding murder and manslaughter from Schedule 5, yet I cannot believe that any member of the Committee would wish to do that. Logically, if you include murder and manslaughter, you must also include causing death by reckless or dangerous

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driving. As far as the victim is concerned the result is exactly the same. and, incidentally, far more unpleasant. I would imagine, than being the victim of gross indecency—a crime already included in the list. I beg to move.
Lord Elystan-Morgan: We on these Benches have the fullest sympathy with the sentiments put forward by the noble Lord, Lord Monson, in support of this amendment. In our judgment, quite clearly some of the worst cases of causing death by reckless driving are not only indistinguishable from the old motor manslaughter cases but could well have been prosecuted as manslaughter cases, and undoubtedly would have resulted in a conviction for that offence.
As a matter of technical drafting, the wording of the amendment,
"Causing death by reckless or dangerous driving",
probably is not correct, because since 1977 there has been no such offence as causing death by dangerous driving, as opposed to causing death by reckless driving. But that is a very small matter. We certainly think, judged by the general tenor of the list of offences created in this general provision, that this offence has a proper place in the list.
Lord Gisborough: Before my noble friend answers, can he say why this list is so short and in particular why arson is not included in it?
Lord Elton: The list is short for the sake of simplicity. Arson is not included in it because it is already caught. The noble Lord, Lord Monson, has accurately anticipated what I was going to say in this respect. This is a topical matter. If I am right in thinking that the Committee are like minded with the noble Lord, Lord Monson. I have regrettably to say that, as drafted, the amendment will not quite do. This always seems to be the case. However, if the members of the Committee were to nod at me in numbers, then I should think we may as well have the amendment that the noble Lord wants drafted by the Government. That being so, I am happy to ask him to withdraw the proposed amendment on those terms.
Lord Harris of Greenwich: Before the Minister leaves this point, I hope the Government will, before the next stage of the Bill, look into the point made by the noble Lord opposite. That is that it seems to me very strange that the offence of arson is excluded from this provision. On conviction of arson you can be sentenced to life imprisonment. It seems to me rather strange that, that being so, it is not a serious offence.
Lord Elton: My only hesitation, which perhaps I should have expressed, was that I hoped we would not have an ever growing list of offences to add to the schedule. Arson can be very serious but I am reminded it can also be very minor. So it is appropriately covered by the tests in Clause 109, rather than constituting an offence—arson has different results in different places. However, if the Committee are content to leave it with me, I am prepared to come back with an amendment to satisfy the noble Lord, Lord Monson.
Lord Monson: I am extremely grateful to noble Lords in all quarters of the Committee for their support. I am particularly grateful to the noble Lord, Lord Elystan-Morgan. I accept that the amendment is not correctly drafted at the moment. I lifted the definition from the 1972 Road Traffic Act and I had not realised that the description of the offence had been modified in 1977. Most of all, I am grateful to the noble Lord, Lord Elton, speaking for the Government, in agreeing to put forward the correctly drafted amendment at the next stage. With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan moved Lord Elystan-Morgan moved Amendment No. 26:
Page 108, line 27, leave out paragraph 7.
The noble Lord said: The list in Part I of Schedule 5 is intended to be a list of grave and serious offences. Undoubtedly that is so in relation to the first six of those offences, running from murder to buggery with a boy under the age of 16, or a person who has not consented to that act.
However, the seventh category is the category which reads,
"indecent assault which constitutes an act of gross indecency".
Undoubtedly gross indecency can be a quite serious offence but in most cases it is an act of social nuisance. However revolting one finds it, I think that most people would say that it falls into the category of social nuisance rather than the category of serious crime. I believe I am right in saving that its maximum penalty is still two years' imprisonment. What is not included here is indecent assault with a female. At its higher end, that can be a very, very serious offence, in some cases almost as serious as rape.
May I say, in passing, that it is still strange that the maximum penalty that that offence carries for a woman is two years' imprisonment whereas there is a maximum of five years' imprisonment for the same offence committed with a girl under the age of 16? Be that as it may, in the judgment of those on these Benches, the seventh category has not been thought out properly. I would ask the Government, in considering the sort of offences that they have in mind, to give greater prominence to assaults against women and to think very anxiously whether it is necessary to include the offence of gross indecency between men, which, as I say, is more of the nature of a social nuisance than a grave offence. I beg to move.
Lord Harris of Greenwich:I do not want to persist with this point to a wearisome degree, but I must say to the noble Lord that I fear that the list has not been carefully thought through. It makes absolutely no sense to include item 7 to which the noble Lord, Lord Elystan-Morgan, has referred and to exclude the offence of arson. Let me put this point directly to the noble Lord. Parliament has thought fit to make the maximum penalty for arson, life imprisonment. That is a fact. It seems astonishing to me—I would find it surprising if any of my former colleagues on the Parole Board take a contrary view in the light of the sort of offences that we regularly reviewed in terms of their degree of seriousness—to exclude arson and to include

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indecent assault that constitutes an act of gross indecency. It seems to me a very surprising judgment.
Speaking for myself, I give notice that I certainly propose to raise this on Report stage, because, until the noble Lord pointed it out, it had not occurred to me. I hope very much that the list will be thought through far more carefully before the next stage of the Bill so that we have a far more rational list before us when we make a judgment on Report stage.
Lord Elystan-Morgan: I am grateful to the noble Lord. Would he agree, forceful though his arguments undoubtedly are in relation to simple arson, that they are even more forceful in relation to arson with intent to endanger life?
Lord Harris of Greenwich: I agree entirely.
Lord Wigoder: Can the noble Lord the Minister help with a simple statistic in relation to the last figure for the year ending December 1982? Can he say how many offences within paragraph 7 were committed in that year? What proportion of offenders were sent to prison? That would enable us to judge whether or not they are serious offences.
Lord Gisborough: I hope that I do not stir things up further by asking whether, following arson, one can also mention treason. Treason is not only a matter of an offence against royalty or whatever, but it also concerns people who may carry away state secrets and whose arrest may be required in a short time before they flee the country?
Lord Hutchinson of Lullington: May I suggest that the Government do not enter into a long auction on these serious offences? There is no end to one's views about them. You could have arson. You could have drugs offences, which are appalling in their results. You could have huge frauds which have appalling results on people's financial situation. You could have, as the noble Lord has just mentioned, Official Secrets Act offences that do not appear in the list. I think I am right. am I not, in saying that the list originally contained only the first four headings, and that at Report stage in another place, 5, 6 and 7 were added. I would strongly suggest that we go back to the four original offences and do not indulge in a long auction of what are serious and what are not serious offences.
The effect of adding to the list may be far more far-reaching than one appreciates at the moment. If offences get into the list, it will affect sentencing policy. It is quite extraordinary. It must have been a very emotional debate in the other place for gross indecency to be included. Whether it came at the time of "The Romans in Britain" or something like that, I do not know. There must have been some emotional background.
Most gross indecency offences are now matched with a substantial or small fine. It is very rare now that people are sent to prison for gross indecency. It has absolutely no place here. Speaking for myself, I am surprised also that the Bill specifies buggery with a boy under the age of 16. Why is that worse than the same offence with a girl? There is no end to the possible additions to and subtractions from this list.
Lord Simon of Glaisdale: I should like to associate myself entirely with what has been said by the noble Lord, Lord Hutchinson. From the schedule to the Extradition Act one has seen how comparatively insubstantial offences get added in a moment of excitement. I must say that Part I of Schedule 5 reads extremely oddly, not least paragraph 7.
With regard to the point about treason made by the noble Lord, Lord Gisborough, one would expect to find it in a schedule containing a list of offences which were automatically serious, though, of course, it would be caught by subsection (6) (a) of Clause 109. I should be sorry, too, to see arson added, because arson can vary very greatly in seriousness, from setting a tyre on fire to burning down a haystack or a house. Personally, I have grave doubts about the efficacy of the whole of Part I. There seems to me to be much to be said for limiting it to the first four items, and possibly adding treason.
Lord Renton: As my noble friend is being asked to reconsider this schedule, may I make the suggestion that there does not seem to be any underlying principle which separates the items in the schedule from some of the items in the clause. I should have thought that, for the sake of public understanding of what will become quite an important piece of the law, it would be better to have the whole thing either in the schedule, with a reference from the clause, or else all set out in the clause. As it is, I think that it is very muddled and unsatisfactory.
Lord Elton: The purpose of the schedule is to try to set out those offences of which really there cannot be relatively harmless examples. I will come in a moment to No. 7, the indecent assault one; but one cannot have a minor case of murder, an insignificant case of manslaughter, or a trivial case of rape. Incest with a girl under the age of 13 is always serious.
Lord Gisborough: Will the noble Lord give way?
Lord Elton: No. It is late. I should like to develop my theme, and the noble Lord can puncture it when it is complete. The purpose of the clause is to catch those offences which are not in that stark condition.
The amendment we are discussing seeks to delete from Schedule 5 the entry relating to indecent assault which constitutes an act of gross indecency. It may help your Lordships if I explain that this will not include the offence of gross indecency between men, under Section 13 of the Sexual Offences Act 1956. Such offences are not indecent assaults, and so will not be covered by paragraph 7 of the schedule.
The offences of indecent assault are dealt with in Sections 14 and 15 of the 1956 Act, and, as might be expected, an essential element of the offence is that there must be an assault. Thus, for example, the touching of a person at his invitation, in an indecent or a grossly indecent manner, is not an indecent assault if the person is above the age of consent, which is 16 for indecent assault.
I think that it is clear that some indecent assaults are always serious offences. Bad indecent assaults can be at least as bad as a rape. Equally some indecent assaults

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are not so serious as to merit inclusion in this schedule— for example, the friendly heterosexual pat.
To overcome the difficulty of ensuring that only serious offences were covered in the schedule, we have added a qualifying phrase. Only indecent assaults which constitute acts of gross indecency will always count as serious arrestable offences. The concept of gross indecency, which was endorsed in the recent report of the Criminal Law Revision Committee, is a well-established one in the law on sexual offences, and will exclude the less serious cases of this offence.
Indecent assault in circumstances of gross indecency is the way in which one can, in legal terms, describe indecent assaults that will at the very least involve genital contact and they can be very bad indeed. They are not in the least trivial and the Criminal Law Revision Committee were satisfied that this description would attract the most serious indecent assaults, but not others—and that was after long years of debate.
As I have explained, the concept of gross indecency is descriptive of the character of the act constituting the assault. The concept is not limited to homosexual conduct. It has been applied for over 20 years in the case of conduct involving children of either sex under the Indecency with Children Act 1960. And, as I have said, there must be an assault—which means either that there was no consent or that the victim was too young to give a consent valid in law. These can be serious cases where the powers in the Bill may be called for. I hope that it is clear from what I have said that paragraph 7 of Schedule 5, Part I, does not cover anything but the most serious cases where the powers that they will attract ought to be attracted.
Lord Wigoder: Before the noble Lord sits down, has he by any chance the figures for which I asked him?
Lord Elton: No; the answer is that the figures are not broken down in a way which makes it possible to relate them to the items in Part I of Schedule 5, and I regret that.
Lord Wigoder: Is the noble Lord really saying that he has no idea how many offences of this type are committed every year?
Lord Elton: Not without notice. I see the force of the noble Lord's interest and I will write to him.
Lord Gifford: Do I understand that the Minister is closing his mind to any reconsideration of the inclusion of paragraph 7? It is a matter which has caused the greatest concern among homosexual men and the organisations which represent them. They fear—and it would seem with substance—that their lot (which is already an unenviable one because there are many police forces which pay a disproportionate amount of attention to crimes involving homosexuals) will be to be classified in the category of suspected serious offenders. Let us remember that it is not a question of proving the offence, but a question of whether someone is suspected of a serious offence, and then all these provisions bite. We will have persons suspected of having committed or attempting to
900
commit assaults involving gross indecency—which will normally be, as I understand it, homosexual men—with all the consequences that follow. It does seem to me to be out of context with the other provisions of the schedule, and I ask the Minister to look at it again.
Lord Elton: I do not see how, where there is both assault—which means that there is either resistance or else the victim is too young to give consent—and genital contact, it can be thought of as trivial. And I do not see how people can be thought of as being at risk in the normal pursuit of life if this particular activity should attract the attentions of the police and they should have the powers available to them—which are not draconian—of the serious arrestable offence.
Lord Donaldson of Kingsbridge: Before we leave this subject—which we shall soon—I have been worrying from the beginning about paragraph 5. Anybody who has studied the problem of incest knows that it is a most peculiar crime, not suitable in any way to the police. but suitable in almost every case to a doctor or someone of that kind. The idea that the police should have special powers in relation to all the different things that arise regarding incest seems to me very odd and rather an ignorant approach. I shall not say more at this stage, but I hope that the noble Lord will look at this.
Lord Harris of Greenwich: The noble Lord will be relieved to know that this is the last time that I shall intervene on this particular point. I suspect the noble Lord realises that the Committee would be grateful for some assurance that the department will look at the whole of this schedule again between now and the Report stage. I rather agree with my noble friend Lord Hutchinson: I understand paragraphs 1 to 4 inclusive. After that, quite frankly, it does not make much sense. I do not propose to rehearse the argument on arson; I still find it odd. if we go beyond paragraph 4, that we do not include arson. I find it strange that we include incest and leave out armed robbery.
Quite bluntly, I do not believe that this is a sensible schedule and I very much hope that the noble Lord will agree at least to look at this matter rather carefully between now and the Report stage to see whether he is prepared to introduce some amendments at that stage.
Lord Simon of Glaisdale: In view of what the noble Lord has said, as I understand "assault" it merely involves a contact without consent. It is not necessarily anything violent. The mere placing of a hand, for example, on the outside of the trousers would be an assault, unless it were by consent, which in this context it would not be. Perhaps the noble Lord would investigate that with the legal department. That is what I have always understood to be the law relating to assault.
Lord Elton: That was what I intended to convey by a "friendly heterosexual pat". The assault need not be serious and that is why it is coupled with the phrase "gross indecency", which then may combine to give the effect which a moment ago I described and which the Criminal Law Revision Committee was satisfied

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only attracted the most serious indecent assaults and not others.
I am no lawyer; I rest on the wisdom, after years of consideration, of the Criminal Law Revision Committee. It is late and I think that that contributes a little to my willingness to say that we shall look at this. I think that, because that contributes so much to my willingness, I should tell your Lordships more forcefully than I usually do not to expect too much from it, because frankly I find myself more convinced after reading my speech than I was at the beginning of it, and that is a good test.
Lord Elystan-Morgan: If this amendment has achieved nothing else, it has certainly brought the spotlight to the concentration of this Committee upon Part I of the Fifth Schedule. I am very grateful to the Minister for saying that he is prepared to look at the Schedule again. I urge upon him this consideration. The first four items undoubtedly belong to any list of serious offences. although there can be instances of, for example, manslaughter, where, although the consequences are anything but trivial—certainly nobody could ever say that of the loss of a human life—nevertheless there are cases which call for a non-imprisonment disposal: for example, a common assault—it leads, by the fact of a person having an egg-shell skull, to death. Very few judges would say that it is necessary to deprive a person of his liberty on that account.
Again, if one looks at the totality of the list, one can think of many grave offences—for example, the possession of heroin with intent to supply or arson with intent to endanger life. With the greatest respect to the Criminal Law Revision Committee, we doubt—and I say this with great sincerity—whether the Government have got it right. It may well be that perhaps the best way of reconsidering it would be to think in terms of a threshold of penalty, and to say that all offences carrying a penalty above x years' imprisonment should be included. I know not. It is a thought at a late hour. We are grateful to the Minister for the undertaking of reconsideration, and shall be happy to withdraw the amendment with the consent of the Committee.
Amendment, by leave, withdrawn.
Schedule 5 agreed to.
Lord Denham: We have now reached the part of the Bill where I think it is generally agreed that we should break for the night. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at one minute past eleven o'clock.