Lords Sitting of 24 January 1985

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

Water Industry: Classification
Baroness Burton of Coventry: 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 regard the water industry as a nationalised industry and, if not, what would be a correct classification.
Lord Skelmersdale: Yes, my Lords. However, they have regulatory functions in relation to river quality which set them apart from the more typical nationalised industries.
Baroness Burton of Coventry: My Lords, is the Minister aware that there seems to have been no definite pronouncement that the water industries are regarded as a nationalised industry? Am I not correct in saying that during the past couple of years regional water authorities have been classified as nationalised industries for public expenditure survey purposes? Also, can the Minister give any information about the consultation proposals recently issued by the Treasury on nationalised industry legislation?
Lord Skelmersdale: My Lords, under the Water Acts 1973 and 1983 water authorities are subject to Ministerial appointment, powers of Ministerial direction, and financial controls of the same kind as are other nationalised industries. They are treated as nationalised industries for the purposes of public expenditure controls and financial monitoring. So far as the consultation paper involving my right honourable friend the Chancellor of the Exchequer is concerned, I am afraid that I can give the noble Baroness no information.
Lord Ross of Marnock: My Lords, will the Minister make it clear that he is talking about England and Wales? In Scotland, water is a local government service. That may be why it is so much easier for the Secretary of State to reduce rate support grant and thereby pass on the burden of the cost of water to the local authorities.
Lord Skelmersdale: Yes, my Lords, I can confirm to the noble Lord that I am talking about water authorities in England and Wales.
Baroness Gardner of Parkes: My Lords, does not my noble friend agree that it is rather confusing when we receive our bills to see them described as being for water rates. This tends to make one think that they are like a local authority rate. Would it not be better to change the terminology?
Lord Skelmersdale: My Lords, that is the way it has been done heretofore; but, as I and my noble friend Lord Avon have made clear on numerous occasions recently, it is a charge for water.
Baroness Nicol: My Lords, does the Minister recall an earlier Question, when he denied that the excessive charges being insisted upon this year were a tax gathering exercise? Does he not agree therefore that the point made by his noble friend Lady Gardner of Parkes is relevant and that this charge should be called a tax? Also, can the Minister say whether he considers it good business practice that today's users should be paying for tomorrow's consumers? That is what is happening, because capital schemes are being financed from the pockets of today's users.
Lord Skelmersdale: No, my Lords, I do not believe that that is happening. What is happening is that today's consumers are being asked to reduce the debts which water authorities have brought forward from historical times. With regard to the suggestion that water charges are a tax, I have consistently made it clear that there is no tax element involved, that water has a cost based on collection, storage and delivery, and that this cost is what comes in the water rate.
Lord Nugent of Guildford: My Lords, is my noble friend aware that it is common practice for all nationalised industries to provide out of their own resources a proportion of their capital expenditure? That is a normal principle in all nationalised industries and it has been for years. The only difference so far as the water industry is concerned is that it has only recently started on this path. In fact, it is self-financing a far smaller proportion of its capital expenditure than are other nationalised industries.
Lord Skelmersdale: My Lords, I am very grateful to my noble friend; he is of course quite right. Last year's average rate of return for water authorities in England and Wales was 1 per cent. This year it is intended that it should be 1.4 per cent; next year, 1.7 per cent.; and in 1987–88, 1.9 per cent. If you compare those figures with, for example, the 9 per cent. for major non-oil industrial and commercial companies, the return in the water industry will remain extremely low.
Lord Grimond: My Lords, whether or not this charge is called a tax, does not the Minister agree that even his own supporters have said that it certainly has the effect of a tax? Is there any point in reducing taxation if this highly regressive impost is to be carried out through the nationalised industries?
Lord Skelmersdale: My Lords, if the noble Lord, Lord Grimond, is trying to scotch the argument as to whether or not it is a tax, then I would say that surely the point at issue is whether the money raised should come from taxpayers as a whole or from water users. It is the Government's view that it should come from water users.
Lord Molson: My Lords, is it not a fact that under the Act of 1983 there are consumer councils which have a right to make representations in respect of charges levied by water authorities? Does the same

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apply when the Government impose upon the water authorities an extra charge? Will the Government pay attention to representations made to them by the consumers' committees?
Lord Skelmersdale: My Lords, we are not yet in a position of knowing what extra charges there will be, because the water authorities will not be deciding until March upon the charges they will be making within the financial limitations laid down by my right honourable friend the Secretary of State. So far as the consumer consultative committees are concerned, my right honourable friend receives the reports, though they are made in the first instance to the water authority concerned.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that the chairman of the Thames Water Authority seems to be in severe disagreement with the Government on this particular issue?
Lord Skelmersdale: Yes, my Lords; and I find that particularly difficult to understand, given that he was the chief executive of British Airways, which has a 5.75 per cent. rate of return.
Lord Leatherland: My Lords, does not the Minister agree that it is unwise to put up the price of water, because to do so might tend to influence people to drink other liquids where usually they would be satisfied with water?
Lord Skelmersdale: My Lords, I simply cannot gree with the noble Lord.
Baroness Burton of Coventry: My Lords—
Lord Murton of Lindisfarne: My Lords, may I ask my noble friend whether it is a question not only of water that is drunk, but also of the very major problem of expenditure on sewerage repairs? In many towns the sewerage systems are in a very bad state.
Lord Skelmersdale: Yes, my Lords, and so we are frequently told. In fact, I am going to Northampton tomorrow to inspect the sewers there.
Noble Lords: Oh!

Livestock Protection: Dogs
3.7 p.m.
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 what action is being considered to deal with the damage being done to livestock by dogs.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): Under the Dogs (Protection of Livestock) Act 1953, it is already an offence to allow a dog to attack livestock. The Government, however, believe that education and publicity offer the most realistic solution to the problem, and to this end a new publicity campaign was launched by the Ministry of Agriculture, Fisheries
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and Food last year. As part of this continuing campaign, and with lambing already under way in some parts of the country, dog owners were reminded on 9th January of the dangers to livestock posed by dogs and of their responsibilities under the law.
Lord Gainford: My Lords, I thank my noble friend the Minister for that Answer. Will the Government consider the possibility of a revision of dog-licensing arrangements, particularly as it happens in other countries that a licensed dog has to carry a form of identification tag on it? And are there satisfactory facilities for dog owners and farmers to take out insurance policies against such contingencies?
Lord Belstead: My Lords, in answer to the first part of my noble friend's supplementary question, the law already provides, of course, that all dogs on a highway or in a public place shall wear a collar with the name and address of the owner on it. In answer to the second part of his supplementary question, the answer is yes.
Lord Somers: My Lords, may I ask the noble Lord whether dogs themselves are not classed as "livestock"?
Lord Belstead: My Lords, for the purposes of this particular law, no.
Lord John-Mackie: My Lords—
Lord Mackie of Benshie: My Lords, I am sorry that my senior kinsman has to sit down. Is not the answer that the most popular tax among farmers which could be raised would be the tax on dogs which has been static for what appears to be centuries?
Lord Belstead: My Lords, last November the Government put out a consultation paper which included precisely that proposal and that the system should be shifted on to a more local basis. Comments are still coming in and the time for comments to finish coming in has been set as the end of February.
Lord John-Mackie: I always give way to youth, my Lords! Is the Minister aware that in spite of the publicity campaign, which I think is a good idea, so far as we can see, the problem of sheep worrying by dogs is still very bad? I have two neighbours who had their sheep worried last month. Is he also aware that the identification of the dog is the biggest problem? We often know where the dog is but the police have no powers to go into the house and say, "We want that dog out to give it an emetic and prove that it has worried sheep." We had an amendment, if I remember correctly, on the Police Bill in this respect but it was turned down. Until that happens and dogs are identified it will continue to be a very big problem.
Lord Belstead: My Lords, I certainly agree with the noble Lord that this is a problem. The consultation paper which was given out by the Government last November made the point that if we could have a licensing system on a more local basis, then that would give the local authorities, among other matters, the responsibility for stray dogs. If we can do that, we will have gone a considerable distance towards solving this problem.
Lord Harvington: My Lords, is it not a fact that the law as it stands is that if a dog is caught flagrante delicto it can be shot by the farmer without legal penalty?
Lord Belstead: My Lords, I am advised that in a civil action the farmer has a defence for killing or injuring a dog provided he can prove that he was acting to protect his livestock and provided he had notified the police within 48 hours.
Lord Constantine of Stanmore: My Lords, has my noble friend considered the possibility of tattooing the ears of dogs to identify them, whether they are collared or not?
Lord Belstead: My Lords, that might be one of the proposals to come out of the consultations which are now proceeding.

Ethnic Minorities—Education: Swann Report
3.13 p.m.
Lord Taylor of Blackburn: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they expect the report of the Committee of Inquiry into the education of children from ethnic minority groups, under the chairmanship of Lord Swann, to be published.
The Earl of Swinton: My Lords, I understand that the committee held its final meeting last week and intends to submit its report to my right honourable friend the Secretary of State for Education and Science after some final editorial work.
Lord Taylor of Blackburn: My Lords, I thank the Minister for that reply. May I ask him to do everything that he possibly can to expediate—
Noble Lords: Oh!
Lord Taylor of Blackburn: Exactly, my Lords, "expediate" it—and to get the report out as quickly as possible, because there are so many local authorities waiting to know exactly where we go?
The Earl of Swinton: My Lords, as the spokesman for the Department of Education I think I ought to tell the noble Lord that the word is "expedite". I understand that there is a substantial amount of editorial work yet to be done to the full text, so it is unlikely to be delivered to my right honourable friend before the middle of next month.
Baroness Faithfull: My Lords, as a member of the Swann Committee, may I ask my noble friend the Minister whether he does not agree that this unique national committee has needed time to produce a report with a fair consensus of opinion in view of the fact that, of the 20 members, 10 have their origins in
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the Indian sub-continent, the West Indies, Africa and China, and 10 have their origins in this country? All are British. Furthermore, does he not agree that the wide spectrum of education has needed to be covered?
The Earl of Swinton: Yes, my Lords, I agree with my noble friend Lady Faithfull, and the Government recognise that the education of ethnic minority children raises difficult and sensitive issues. Therefore, it is not surprising that the committee should wish to deliberate on them at some length.
Lord Avebury: My Lords, can the Minister say whether the Swann Committee was able to consider the effect of racial harassment and intimidation on the academic achievement of children living on housing estates such as those in Tower Hamlets described in a recent television programme? If not, can he say whether the Government will institute inquiries into this matter on an urgent basis?
The Earl of Swinton: My Lords, I think we must wait for the outcome of the report to see what it includes.
Lord Beloff: My Lords, can the Minister assure the House that "editorial" will mean what it usually means and that it will not be a matter of toning down the report in order to spare the susceptibilities of certain pressure groups in this area?
The Earl of Swinton: My Lords, I think editorial means editorial.
Lord Kilmarnock: My Lords, can the noble Earl give the figure for the number of children in English schools for whom English is a second language? Is the noble Earl satisfied that provision in this respect is adequate?
The Earl of Swinton: My Lords, again, I think we shall have to wait to see what the report has in it.
Lord Hatch of Lusby: My Lords, has the noble Earl had his attention drawn to the somewhat shocking report on the education of Chinese children, who, I believe, are the third largest ethnic minority in this country? If he says that the committee had its last meeting last week, did that committee have the opportunity to study this report in view of the revelations in it on the disabilities under which Chinese children are now suffering.
The Earl of Swinton: My Lords, the committee has been sitting for some five years, so I think it has had ample opportunity to look into all sorts of things.

Trident: Cost Estimate
3.17 p.m.
Lord Tordoff: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what has been the effect of the recent changes in the sterling-dollar exchange rate on the estimated cost of the Trident project.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, my right honourable friend the Secretary of State for Defence is currently reviewing the estimate of the cost of Trident and expects to make an announcement shortly. The exchange rate applicable to the revised estimate will be announced at the same time. However, what chiefly matters is the rate which applies when Trident expenditure peaks around the turn of the decade. At present, it is comparatively small.
Lord Tordoff: My Lords, while I thank the noble Lord for that Answer, is he aware that it is extremely disappointing that this information is continually withheld from the country? I understand that the last available estimate is for March 1984, when the exchange rate was 1·53 dollars. Is the noble Lord aware that if we do some simple arithmetic on the basis of 1·11 dollars the cost of Trident will now have exceeded £10 billion?
Lord Trefgarne: My Lords, I am aware of course of the fluctuations in the exchange rate since the last announcement was made. That is why my right honourable friend thought it right to make another statement and he will be doing so very shortly.
Lord Molloy: My Lords, can the noble Minister say whether the Government are paying attention to submissions made in this House on many occasions to the effect that the monies being spent on the Trident system would be much better used on conventional systems for the defence of this nation?
Lord Trefgarne: My Lords, I am afraid that the noble Lord is quite mistaken in that view. The cost of Trident is equivalent to three or four armoured divisions and the Soviet preponderance on the central front is about 80 divisions of that kind, so three or four additional divisions are not likely to make much difference.
Lord Bruce-Gardyne: My Lords, is it true that the period of procurement for this weapons system has now been stretched from 15 to 20 years? Is there any hope that if that has already happened we could stretch it out to 25 years, 30 years or even infinity?
Lord Trefgarne: No, my Lords, that is not true. The period of acquisition remains as it always has been. I refer my noble friend to the speech which my right honourable friend made at the party conference last year in which he set out the time-scale involved.
Lord Beswick: My Lords, can the noble Lord say whether this is in the nature of a cost-plus contract, and does not the British defence industry require a fixed price?
Lord Trefgarne: My Lords, there are of course a number of contracts involved in the Trident procurement process but they are, generally speaking, fixed price contracts.
Lord Tordoff: My Lords, I am sorry to intervene again, but is the noble Lord aware that the answer that he just gave his noble friend does not square with an
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Answer that was given in the other place to a Written Question by Mr. David Alton earlier this week?
Lord Trefgarne: My Lords, I believe that the answer that I gave does coincide with what has been said before. There has been no change in the acquisition period. I repeat that I invite the noble Lord to refer to earlier remarks on the subject.
Lord Beswick: My Lords, can the noble Lord clarify his answer to me? If they are fixed price contracts, how is it that they are continually increasing?
Lord Trefgarne: My Lords, the contracts themselves are not increasing. What is changing of course is the dollar-pound exchange rate. About 45 per cent. of the contracts are set in dollars. The number of dollars is remaining the same; the number of pounds necessary to acquire those dollars is changing.
Lord Harvey of Prestbury: My Lords, can my noble friend say what percentage of this work is being carried out in the United Kingdom?
Lord Trefgarne: My Lords, a large percentage of the project overall is being carried out in the United Kingdom—something like half overall—including of course the submarines themselves. Indeed, United Kingdom firms are being given the chance to tender for some of the other work as well.
Lord Molloy: My Lords, with respect, will the noble Lord answer the important part of my question? As I am sure he is aware, it refers to very important submissions made by distinguished service officers who are now in this House. Are the Government at least paying attention to their submissions that the money spent on the Trident system might be better spent on conventional weapon systems?
Lord Trefgarne: My Lords, the noble Lord is referring to "service officers" in the plural. As far as I know, there is only one service officer making such submissions.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Avon will, with the leave of the House, repeat a Statement that is to be made in another place on radioactive waste disposal.
It may be for the convenience of the House if I announce that, subject to the progress of business, the Committee stage of the Prosecution of Offences Bill will be adjourned at approximatley 7 p.m. for a short period and the Fishing Vessels (Acquisition and Improvement) (Grants) (Amendment) Scheme 1984, the Agriculture and Horticulture Grant (Variation) (No. 2) Scheme 1984 and the Committee stage of the Recreational Gardening Bill will be taken during this adjournment.

Business of the House: Consolidated Fund (No. 2) Bill
The Lord President of the Council (Viscount Whitelaw): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That Standing Order 44 (No two stages of a bill to be taken on one day) be dispensed with to enable the Consolidated Fund (No. 2) Bill to be taken through all its stages this day.—(Viscount Whitelaw.)
On Question, Motion agreed to.

Business of the House: Short Debates
Viscount Whitelaw: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
In doing so, it may be helpful if I point out to your Lordships that in relation to the debate in the name of the noble Lord, Lord Harris of Greenwich, this will be the first time that a two-and-a-half-hour time limit has been applied to a Motion which is intended to lead to the expression of a point of view by the House. I very much hope that this procedure will prove to be satisfactory. It will of course be possible to review the matter when we have had a chance to see how next Wednesday's debate goes.
Moved, That the debates on the Motions in the names of the Lord Harris of Greenwich and the Lord Mayhew set down for 30th January shall be limited to 2½ hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates set out in Appendix H to the Companion to the Standing Orders shall apply to each debate.—(Viscount Whitelaw.)
On Question, Motion agreed to.

Consolidated Fund (No. 2) Bill
Brought from the Commons, endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read a first time.
Then, Standing Order No. 44 having been dispensed with (pursuant to resolution), Bill read a second time; Committee negatived; Bill read a third time, and passed.

Insolvency Bill [H.L.]
Lord Brabazon of Tara: My Lords, on behalf of my noble friend Lord Lucas of Chilworth, I beg to move the Motion standing in his name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Insolvency Bill [H.L.] has been committed that they consider the Bill in the following order:

Clauses 1 to 4,

Schedule 1,

Clauses 5 to 36,

Schedule 2,

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Clauses 37 to 87,

Schedule 3,

Clauses 88 to 90,

Schedule 4,

Clauses 91 to 146,

Schedule 5,

Clauses 147 to 184,

Schedule 6,

Clauses 185 to 202,

Schedules 7 to 9,

Clause 203.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

Royal Assent
The Lord Chancellor (Lord Hailsham of Saint Marylebone): 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:
Consolidated Fund Act,
Elections (Northern Ireland) Act,
London Transport (Tower Hill) Act.

Prosecution of Offences Bill [H.L.]
3.25 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 22 [Reference to Court of Appeal of certain Crown Court Sentences]:
On Question, Whether Clause 22 shall stand part of the Bill?
Lord Elwyn-Jones: I rise to propose that Clause 22 be left out of the Bill. The clause, in effect, enables the Attorney-General to refer to the Court of Appeal for its opinion any sentence passed by the Crown Court for an indictable offence thought to be too lenient. In brief, the case against the proposal in the clause is that it is not only wrong in principle, but that it is also unnecessary in view of the fact that the Court of Appeal already can and does lay down guidelines to guard against over-lenient sentences. In my submission, here we have a proposal which is not only wrong in principle, but which is also wholly unnecessary—a most unattractive combination indeed.
The principle to which I have referred, over which the clause rides roughshod, is that those who prosecute an offender should have no say in his sentencing; that is for the judge. To depart from that principle, which leaves it to the judge to decide the sentence (subject of course to any errors which may be corrected or remedied in the Court of Appeal) is, I submit, wrong

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and dangerously wrong. Prosecution neutrality on sentencing is and always has been an important feature of our system. While this does not happen in many other countries, I think that their experience shows that they are the worse for it. It certainly has been the practice and tradition here. Indeed, the Bar's code of practice states in terms:
"Prosecuting counsel shall not attempt by advocacy to influence the court in regard to sentence".
In my submission, the proposed clause will put in peril the impartiality of the state and of the prosecution in the matter of sentencing. It will tend to line up the prosecution in the public mind exclusively on the side of longer sentences and harsher treatment. The Attorney-General himself will be subjected to increasing pressure to intervene in that direction from the press, from party conferences and sometimes from ill-founded public clamour.
3.30 p.m.
I should like to make it quite clear that the aim of enabling the Court of Appeal to lay down, where it is necessary to do so, sentencing guidelines to guard against over-lenient sentences is of course entirely reasonable. But the court already can and does just that by laying down policy guidelines on sentencing in the course of its judgments as cases come up. Unfortunately, a very large number of cases do come up before the Criminal Division of the Court of Appeal.
In 1982, for instance, after the widely publicised case of over-lenient sentencing in which a rapist was fined £2,000, the noble and learned Lord the Lord Chief Justice lost no time in laying down, in the Roberts case, that an offence of rape requires immediate custodial sentence. Since then, the sentences passed in rape cases have indeed given rise to that guidance. The noble and learned Lord the Lord Chief Justice has given similar guidance in firearm cases, in drugs cases and in cases of armed robbery. The machinery is there and the machinery is being used.
A further objection to the clause is that it will be extremely difficult, as it stands, to hide the identity of the offender, who will in a sense be on trial again—although it is true his sentence cannot be increased. His anonymity is in no way protected, least of all guaranteed. Judicial opinion on this matter may be judged by the fact that in a report on two judicial seminars, which were held in Roehampton about a year ago, attended by about 150 judges, it recorded that there was a strong feeling against giving the prosecution the right of appeal against sentence and against the Attorney-General having power to refer sentences. Acceptance of the proposal that I now make in moving that Clause 22 do not stand part of the Bill will prevent happening what the judges fear may occur. I beg to move.
Lord Denning: May I ask the Committee to reject this clause? It is the outcome of newspaper reports. The Committee will have seen the nature of them: "Guards officer guilty of rape—six months; ordinary man next door guilty of rape—two years or five years". Newspapers are not to be condemned. It is part of their
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work. As Lord Atkins once said, no person does any wrong in criticising a public act done in the seat of justice. He went on to say that justice is not a cloistered virtue. Every court must be subject to the scrutiny and the respectful, if outspoken, comments of ordinary men. So the newspapers are perfectly entitled and within their rights to make these comments on sentences by the judges.
But is this to be the remedy? Is the judge to be reported to the Attorney-General, and the Attorney-General to report that to the Court of Appeal? This would not be to increase the sentence (there is nothing said that the court can increase the sentence) but to enable it to say that the judge was wrong. Here the judge is being condemned by the prosecution. Who is to tell the Attorney-General about the case? Is it the newspapers? God forbid!—they do not often get it right; they usually get something wrong, incomplete or misleading. The only person who can tell the Attorney-General about the case is the Crown prosecutor himself. He will have been in the court. He will have heard the witnesses on one side and the other, and then, after the judge has given his sentence, he will say, "Ho, Ho! That was much too lenient. I will report this to the Attorney-General and the Attorney-General will report it to the Court of Appeal".
Are the judges to be reported like this? In a case like this, the defence always put in their plea of mitigation. The judge always hears that plea. But never do we allow, nor is counsel for the Crown allowed, a plea in aggravation—because this is what it is; a plea in aggravation of sentence. I might have been faced with it years ago. I was trying a case at the Old Bailey of the driver of a motor-car. He had a most excellent character for 20 years and then one day he was forced out of his overtaking lane and as a result two delightful girls were killed. What was the sentence to be? I saw how sorrowful and distressed the driver was. I heard the plea in mitigation by his counsel but of course no plea by the prosecution. Then I sentenced him to nine months' imprisonment. Was that right? Was I to be taken and reported to the Attorney-General as being too lenient?—because many might have thought I ought to have given him three or five years' imprisonment for killing those two girls.
But appal the thought! We have to remember that it is the Crown prosecutor's duty and the duty of the Bar always to be fair; never to press the case. In a case of that kind, was I to turn to the counsel for the prosecution? In any of these cases, if a case like this came before me, I would say to counsel for the prosecution, "I have it in mind to give this man one more chance. I know his record has not been good but I have seen him; I have heard what his counsel has said; I think it is right to give him one more chance. I will bind him over". But if I were to say, "Mr. Snooks, are you going to suggest afterwards to the Attorney-General that I was wrong?" If he is going to say I was wrong, I should tick him off very considerably. But in every case he would say. "Of course not, my Lord. I leave it to your Lordship", as counsel for the prosecution always have left it to the judge. It is their duty to leave it to the judge and never to press for a heavier sentence at all in the court.
What is to be the outcome of this case if this clause goes through? The Crown prosecutor will report to the

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Attorney-General, who will not have heard the plea in mitigation. The Attorney-General will report to the Court of Appeal. The Court of Appeal will only hear one side: it will hear the prosecution. It will not hear the man's side—he will not worry; he has got off with a lesser sentence anyway. It will not hear the judge's side. It will not, as it ought to do, hear the parties. Then, upon that, the judge may be condemned and reproved, and they will say, "Oh, that's all wrong. We are not going to allow you any promotion or anything of that kind in the future; you give too lenient sentences".
It is quite wrong that judges of this country should be reported to the Attorney-General by the prosecution for giving too lenient sentences. It is loading a dice in the hands of the prosecution to press all the time for heavier sentences and to expect the judge to give them. It is an entirely wrong procedure and there are entirely wrong suggestions made by this clause. I hope the Committee will not accept it.
Lord Rawlinson of Ewell: The noble Lord, Lord Denning, has long been the hammer for successive Attorney-Generals and I have at one time been the anvil on which he has struck. But I support very much what he has said because I believe it puts an Attorney-General in an impossible position if this proposal in this clause remains. As the noble Lord has said, from where does the Attorney-General obtain his information? Will he respond to clamour, which is the worst possible guide for anybody in dealing with the prosecution of offenders and the responsibility for the administration of the law? There is a distinction with the right of the Attorney-General to make references on matters of law to the Court of Appeal with regard to guidance to jurors which led to acquittals. There is, I think, a considerable difference. The Attorney-General has the responsibility for the prosecution of offenders. He wants to know what the guidance is. He wants to clarify what the criminal law is. There is a great distinction between that power and the proposed power. For the reasons that have been given by both noble and learned Lords, I fully support the amendment.
Lord Campbell of Alloway: There is much mischief in this clause. The ambit of the academic exercise proposed—for an academic exercise is what it is—is open to the most serious objection. By tradition, sentencing is never a matter for the Attorney-General. Only counsel for the defence are concerned with sentencing. Judges and recorders—I declare an interest as a recorder—have never suffered the indignity of having their sentencing functions rebuked on the basis of a sort of public tutorial. Our courts in criminal matters only give judgments on sentencing intended to have effect. How is this tutorial, if you look at the wording of the Bill, to be conducted? A retrial, I quote:
"having regard to all the circumstances of the case which were known to the Crown Court".
A paper trial, a paper retrial, on argument, affords no substitute whatever for a live trial when witnesses are seen and heard and impressions gained by the sentencing judge which may well be crucial in the case in which, for one reason or another, he sees fit to exercise mercy and to give a lenient sentence.
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What is the object of this exercise? To placate public concern? It is true that on occasions what appears to have been an over-lenient sentence raises problems. It is picked up by the press. Questions are asked in Parliament. The victim and the family feel outraged. This, on rare occasions, may lead to private retribution. The public feels cause for concern. But Clause 22 can do little, if anything, to deal with any of these considerations. It is much to be doubted whether such be the object of the clause.
What other object? The regulation of sentencing? Surely not. There is already adequate and efficient machinery to regulate the problem of over-lenient sentencing. There are the guidelines to which the noble and learned Lord, Lord Elwyn-Jones, referred. All judges and recorders of the Crown Court have to attend judicial sentencing seminars. It may be that the machinery that already exists could be extended. But, surely, there is no case for advisory control over general sentencing policy in cases selected by the Attorney-General in the manner proposed.
In sentencing, there is always scope for human error. But my noble and learned friend the Lord Chancellor, who appoints such judges and recorders, is able to take sometimes formal, sometimes informal, administrative steps, where appropriate, to ensure that the duties of those whom he appoints are properly discharged. I have never heard of any cause for concern as to the way in which that administrative process has worked. With the greatest respect, this clause should never have appeared in this Bill. So far as I can see, there is no justification for it whatever.
3.45 p.m.
Lord Edmund-Davies Lord Edmund-Davies:
"A miscarriage of mercy is as bad as a miscarriage of justice"—
those words call for quotation marks for they are not my words. They are emphatically not my words. They are imputed to the generally genial Robert Lynd. Whether that is right or wrong—the attribution, I mean—I know not, but what I do know is that the proposition that it contains is detestable and should be entertained by no Member of this, your Lordships' House. The newly appointed judge soon discovers that the most difficult and detestable of his tasks is that of deciding the matter of sentencing. He may get case-hardened, it is true. Some judges never do. One old judge, I recall, reflected towards the end of his career on the Bench that he thought that he had spent most of his time when on the Bench wondering what to do with an accused man who had been convicted.
Despite dedication, ability and care, judges can occasionally make an error. They may impose too heavy a sentence. If that happens, those concerned can appeal. They can do that at the present time without risk. Formerly, in my time on the Queen's Bench, and certainly in the time of the noble and learned Lord, Lord Denning, one ran a risk. One ran the risk of having the sentence increased. I have heard it done. But public opinion would not tolerate that. Ultimately, so opposed to it was the public, that it was abandoned. On the other hand, the judge may impose too light a sentence. He may pay too great attention to the exhortation of a prophet Micah to love mercy and he errs on the side of leniency. That is unfortunate, but it is not the end of the day by any manner of means.
The fear expressed or contained in Clause 22 is that the sentence may begin to set a precedent and lead on to mischief to the public weal. I do not believe it, and I hope that your Lordships will not, either. There are several remedies for such an unfortunate situation. The first lies in the informal but very powerful capacity of those in authority not to direct the judge as to what to do in future, for no man can do that, however high placed. But it has been known for a Lord Chancellor and it has been known for a Lord Chief Justice informally to see the judge in question and to have a quiet word, a quiet but most powerful and efficacious word, with him. It is right to do this, and it is done.
Apart from that, there can be, as already stated, the formal guidelines and the sittings of the sentencing conferences. Finally, and very powerful, is the influence of the media, the expression of public opinion. At times, it can overdo itself. I have heard none other than the noble and learned Lord, the Lord Chancellor, recall the case of a most distinguished and dedicated judge who was so excoriated on the grounds of his leniency, as it was said in one sentence, that it really wrecked that man's life. The underlying basis of this clause is, therefore, in my respectful submission to your Lordships, absolutely wrong. It is contrary to established attitude in this country. The prosecution does not concern itself with the penal consequences of a conviction. It is a wholly unnecessary provision for a situation which is adequately covered at the present time.
How is Clause 22 to be implemented? The Attorney-General has counsel briefed to make complaint that the sentence is too lenient. The clause makes provision for the representation of the defendant if he desires to be represented. Why should he? There are times when he should, for it is wrong to think that the convicted man, although his sentence cannot be increased by the reference, is always going to escape scot-free. His reputation may be further polluted. Such regard as he has been able to build up in the community may be largely destroyed, for it is quite fallacious to think that by resort to anonymity, so-called, he cannot be further injured.
We have found that already, by experience. References are made by the Attorney-General, as your Lordships know, in matters of conviction. I remember quite well, sitting judicially in your Lordships' House, a reference in relation to a case tried in Northern Ireland. It was dressed up all right: it was In re X or Y, or something of that kind, and a set of facts was set out. But everybody knew—everybody present; the press and everybody—what case it was; and that would happen if the resort suggested in Clause 22 were adopted. I think, with great respect (and I hope your Lordships will share my thinking), that this clause is really quite mischievous, uncalled for, a deliberate departure from established attitudes which ought to be maintained. I hope your Lordships will reject Clause 22.
Lord Hutchinson of Lullington: My name appears on this amendment. Your Lordships, having heard the noble and learned Lord, Lord Denning, no doubt feel there is very little more to be said. I want to add only one further point. I ask myself, "Why does this clause
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appear in this Bill at all?", this Bill being an efficient medium for setting up a national prosecution service. Is the reason for this clause appearing in this Bill that henceforth we are to find Crown prosecutors throughout the country reporting on the judges before whom they are appearing to conduct prosecutions—reporting back to their boss, as it were, the Director of Public Prosecutions, in order that he may provide the necessary information to his superintendent, the political head of the service, the Attorney-General of the time?
To ask any prosecuting advocate to do that would be a totally distasteful procedure at this present time, and I ask the noble and learned Lord the Lord Chancellor: is it that he foresees that in this service it is wanted to have a corpus of Civil Service prosecutors who are going to make these reports up the hierarchy, as it were, to the headquarters so that the Attorney-General of the time may have the information on which to bring these cases before the Court of Appeal in order to be able to give judges a rap over their judicial knuckles? I should sincerely hope that that is not the case because, as has already been so well said—I am speaking, if I may, as an ex-practising member of the Bar of England and Wales—it has long been the tradition of the Bar (indeed, it enshrines the independence of the Bar) that the prosecution has absolutely no say in any shape or form in the sentence which is eventually passed by the tribunal.
It is said in the leader in The Times this morning that the reason for this clause in the Bill is that it is part of the Home Secretary's package to assuage those supporters of his at the annual Conservative Conference. I do not know whether or not that is the reason. But the other matter which was part of that package, which was the amendment to the whole basis on which parole had been given up to now, has done a great disservice to the administration of justice, I would suggest; and to allow this clause to remain part of this Bill would also, I would suggest, do an equal disservice to the administration of justice.
Baroness Macleod of Borve: I should like to support everything that has been said so far in the debate this afternoon. It seems to me that this clause is a result of a few reports in the press of a few serious cases in which it is thought that a judge has given too lenient a sentence. I hope that journalists do not think I am inferring that they misrepresent any of the cases; but within my knowledge all reports of cases before our courts are incomplete because they have to be condensed, pressure of space and time of course being one of the reasons.
But they are incomplete also because only those adjudicating, from the magistrates' courts to the Crown Courts to the Old Bailey, can see all the papers that are before the court. In fact, the probation office reports, the social service reports, the home reports, are read only by those who are actually adjudicating; and the judge, at whatever court, will base his judgment on all the facts, including those papers.
The learned judges are appointed by my noble and learned friend the Lord Chancellor, in his wisdom. They must and do carry the confidence of the people. Our judicial system, I feel, is second to none in the world, and is known as being wise and fair. Therefore,

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I feel it is wrong that the judgment of the judges should be queried except by the defendant on appeal, especially when the appeal court will not be able to alter the sentence, anyway. I feel that the whole exercise is a waste of time.
The basis of going to court and standing trial in this country is that hopefully the defendants have confidence in those who are judging them. I feel that in this particular case, where we might possibly be accused of putting something in this otherwise excellent Bill by acting on very few facts, doing so will make bad law. I am afraid I cannot accept this amendment.
Lord Wilson of Langside: I support wholeheartedly the rejection of this clause. I rise to do so with a degree of diffidence, because of course the criminal jurisdiction with which I am familiar is foreign to that of the English. Perhaps my interest in opposing the clause might be said to be that if, in what I imagine is the quite unlikely event of the Government rejecting out of hand everything that has been said from the Opposition Front Bench, from these Benches and, above all, from the Cross-Benches, and insisting on this clause, and in the unlikely event of your Lordships also supporting it, there is a danger—it sometimes happens—that if this becomes part of the English law and the administration of English justice, in time those responsible north of the Cheviots will emulate this thoroughly bad example.
Everything that can be said against it has been said. I shall say only this in addition. When I sat—as I did for many years—in a very busy criminal court, there were rare occasions when I had to pass sentence when I wished that another point of view had been put to me. However, there are of course ways of overcoming that problem.
4 p.m.
The other matter which I should like to raise and which I do not think has been referred to already, is that I find this an extraordinary provision for the reason that, so far as I remember—and it is a long time since I practised or sat in the courts—we had a principle in Scots law that the courts were never asked to pronounce upon what was fundamentally an academic question. Litigants were not allowed to come before the courts and ask for an answer to a question which would have no immediate practical results. I should have thought that that was a very sound principle and that there was something absurd about taking to a judge to make a pronouncement upon, with all the consequences of public pronouncements, a matter which will have no practical effect. I should have thought that, for all those reasons, your Lordships should reject the clause.
Lord Simon of Glaisdale: I opposed this clause on Second Reading and I certainly do not wish to weary your Lordships by repetition. In any case, anything that I might say has been far better said by noble Lords, who have preceded me. I wish to say only two things.
First, I hope that my noble and learned friend the Lord Chancellor will give weight to the extraordinary experience and authority that has today pronounced
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against this clause. Secondly—and I hope that I may say this in view of our old friendship and comradeship, as I should like to flatter myself—I hope that the noble and learned Lord will not regard what has happened today as a challenge to his dialectic powers. He is one of the most formidable of living debaters, probably of all time. He likes to proceed rapidly to checkmate in argument, taking a couple of bishops probably on the way! I do, with all respect, ask him to show flexibility and acknowledgement of what has been said today.
Baroness Phillips: I realise that if I could use colloquial expressions I would say that I was on a hiding to nothing. I am now going to try to tangle with noble and learned Lords who speak from experience and from a great knowledge of the law which I do not possess. However, I should be betraying the women's organisations for which I speak if I did not voice the fact that there is public concern about the leniency of many sentences.
We have heard that the press misrepresent or do not always give the full facts. No one would dispute that. But surely they can hardly misreport the nature of the sentence. When we read that somebody who has tortured and finally murdered a small child and who is described as the "living-in boy friend", gets 18 months and the mother (who should have had something to say in it) is referred to a psychiatrist, one cannot wonder that ordinary women feel concern.
We have heard today from all the noble and learned Lords and there is to me—and I am sorry to say this—a certain arrogance about the suggestion that a judge cannot be called to account. I would remind my noble and learned friends that judges will eventually be called to account by a higher Judge. But in the meantime on this mortal coil it is not unreasonable that anyone who sits in a judicial capacity should have another authority by which he can be called to account.
As a magistrate, I always understood that my verdict could be taken to an appeal court. It seems that here we are only asking for a right that is already given to the offender. The ordinary people outside very often feel that justice has not been done and they are beginning to feel that the offender gets all the benefit and the victim is not considered. That is my plea as regards this matter. I realise that I am on a sticky wicket, but I should be betraying the people for whom I speak if I did not voice my concern about this matter.
Lord Morris: When I first read this clause, I could not help but feel somewhat cynically that the only possible explanation for its inclusion in the Bill was that it was, as it were, the Aunt Sally clause—namely, a clause which is put in deliberately to be knocked down in order, however marginally, to divert attention from other matters in the Bill which may not be considered quite so important. No doubt I am wrong in taking that view.
I wish to make only one point with regard to this clause and that is that it raises a constitutional matter of the greatest importance. The clause undoubtedly puts pressure upon the judiciary, however mild and, indeed, however public, and as such in my humble and totally untutored opinion it constitutes a considerable

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threat to the independence of the judiciary. Therefore, I agree entirely with the proposal that the clause should be rejected.
Lord Gisborough: I rise briefly to support the amendment. This seems to me to be a pointless clause in the Bill which has been largely instigated, as has already been said, by party conference clamour. Furthermore, it is no more than an academic exercise because, after all, the sentence cannot be altered. When there is a different trial subsequently under the Bill—if it is passed as it is—there will be very little likelihood of the accused giving evidence again and therefore it is almost inevitable that a different slant will be taken on the result. Apart from that, I point out that no two judges at any time are likely to give exactly the same sentence. Therefore, in my view all that will happen is that it will cast doubt on the legal system and on the justice of our courts, which are probably, in fact, the fairest in the land.
Lord Scarman: It is refreshing that at last a noble Lord has expressed some concern about the opposition to this clause. I support my noble and learned friend Lord Elwyn-Jones and all other noble Lords who oppose this clause standing part of the Bill. But it is very important that your Lordships' Committee should, so to speak, base it opposition on sound reasons and not on unsound reasons. It is no part of the duty of this House to spare the feelings of judges. Of course judges must be subject to public criticism when they dispense justice sitting in the seat of justice. Of course judges are accountable morally and spiritually as well as legally. I would ask your Lordships to set aside any arguments based upon the embarrassment that this clause may cause to judges. The true objection to this clause has been touched upon by several noble Lords. First, it is a constitutional monstrosity. Under our constitution the Crown has concentrated in it all the functions of the state: executive, legislative and judicial. But it is accepted as part and parcel of our unwritten constitution that in the conduct of the public business of the state the various functions of the Crown—executive, judicial and legislative—be kept stringently apart.
The essence of our criminal law is that the Crown, as prosecutor, shall not take part in argument addressed to the Crown as sentencer in the person of the Crown's judge. It is vital, for reasons already developed by one noble Lord, that the judicial act of sentencing should be seen to be kept out of the grasp or reach of the Crown as prosecutor and now, when this Bill becomes law, out of the grasp of the national service of prosecutors. This is a judicial function. The prosecution has a lively job to do up to the moment of conviction. After that the initiative passes from the prosecution. The prosecution can assist with the exposition of facts, the elucidation of evidence and so forth, but it makes absolutely no submission on the Crown's judicial function, exercised in the person of the judge. At that stage the Crown as prosecutor—that is an executive function—has to retreat.
With an unwritten constitution, unless we keep these matters absolutely clear in practice, there is nothing in theory to prevent us confusing the lot; and if we confuse the lot, we do indeed, throughout the
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whole of the kingdom, perpetrate injustice on a large scale. I suggest to your Lordships that this clause is objectionable in principle. As noble Lords have plainly indicated, it is unnecessary in practice. We should forget the distress, if any, of a judge who may find himself criticised. It may also be—and I mention this to your Lordships because we must consider the offender at some stage—the cause of unnecessary and irretrievable further distress imposed upon a man who has already been publicly punished for his crime.
That is not double jeopardy, as a lawyer understands that phrase. The man is not in danger of an additional penalty to that already imposed. But he is in danger of publicity, whatever steps are taken to protect him. The publicity, the public repute, among those who know him and, indeed, among the general public to a man who was sentenced in one way and who should have been sentenced very much more severely in another way, is a distressing public reputation with which that offender has to go through life. That may not be the most important reason, but let us not forget the offender. We should forget the judge, but we should not forget the offender or the basic constitutional separation of powers upon which not only the criminal law depends.
4.15 p.m.
The Lord Chancellor: There is one point at which I cannot submit to the blandishments of my noble and learned friend (if I may be so allowed to call him) Lord Simon of Glaisdale. My noble and learned friend asked me not to treat this as a challenge to my debating skill. I should be mad if I did not. I have had about 15 speeches fired at me—no bishops this time!—and I am supposed to lie down and wag my tail with my paws in the air. I shall not do it.
First, because it is fresh in my mind at the moment, let me address a few remarks to my noble and learned friend Lord Scarman. Of course I do not forget the offender in the sense in which my noble and learned friend has asked me not to forget the offender. As I think the noble and learned Lord, Lord Elwyn-Jones, said, of course it is true that in a number of cases—though perhaps not in all—it may be possible to identify the case which is the subject matter of the reference. Of course it is true that there may be people—though I hope that they would be a minority—who, should the reference succeed, would say, "He got off with less than he deserved". I think that some noble Lords who have spoken have somewhat forgotten this, although three noble Lords have made a passing reference to it, but that must be true in exactly the same sense of an Attorney-General's reference on conviction. The case will be identified and people will say—and, again, I hope that it will be a minority—"There is a man who got off scot-free and he ought to have been convicted" of whatever it may have been, up to and including murder. Therefore, I do not think that that was a fair point to make.
I should like to make two others points before I go back to the beginning. First, it is utterly unworthy to suggest, as did one noble Lord, that this proposal in this Bill was, either in origin or in purpose, the result of some package made by my right honourable and learned friend the Home Secretary in response to

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clamour from a party conference. That is unworthy and it is untrue. I say that of knowledge and not of opinion. It is equally unworthy and untrue to suggest that there is an oblique objective in this clause, whatever its merits or demerits, to invest a class of prosecutors—who will, of course, provide a service, if the Bill is passed in its entirety—with powers, duties or rights which do not already exist in counsel for the prosecution in the Crown Courts.
I shall now begin at the beginning. I thought that the case, whatever it is, was very well formulated by the noble and learned Lord opposite when he spoke to this Question. It is a question of principle and it is a question of practice. The noble and learned Lord put it exactly as I would have wished to put it, whichever side I had been arguing on in this particular debate. But I do not claim the noble and learned Lord's experience, the experience of my noble and learned friend Lord Rawlinson as a Law Officer, or the experience of my noble and learned friend Lord Simon of Glaisdale. Nor, of course, can I claim the experience as a trial judge of several of the noble and learned Lords on the Cross-Benches who have spoken. But I was called to the Bar as long ago as 1932 and for a barrister who principally practised in the civil courts I suppose that I have prosecuted and have defended in criminal cases as often as the next man.
I nail my colours of principle to two or three general propositions. I do not think any of them are infringed by Clause 22, and I do not think that in formulating any of them—although I may formulate them in different words—I would at all differ in principle from what any noble Lord or any noble and learned Lord has said.
In the first place I refer to prosecuting counsel. Prosecuting counsel is not an avenging angel; he is an instrument of justice. It is not his business now, it will not I hope ever be his business in the future, whatever the result of this proposal regarding the clause, to ask the court to impose a particular sentence. Particularly it is not his business to ask a court to impose a particular sentence in the direction of severity.
Indeed, it would be his task, especially if the accused were unrepresented, to bring out in his opening for the prosecution any mitigating factors that he could legitimately point to. That was always my practice, long before the code of practice referred to by the noble and learned Lord was even formulated by the Bar Council. It has always been the tradition of the Bar, and I hope it will remain the tradition of the Bar until judgment day.
The second point is that the sentence of the court is a question for the trial judge and nobody else. That is absolutely vital to our system of justice. It will remain vital to our system of justice, whatever the result of this proposal now before us. But—and here I must come back to my noble friend Lady Macleod of Borve—it is not a criticism of a judge that he is reversed. Indeed, it is my task as Lord Chancellor to hear the oaths of a judge before he can sit. One of the few things I nearly always say to them is, "Don't be afraid of being reversed", because if I find a judge who has never been reversed, I know about that judge one of two things: either he has fudged his facts, or he has been afraid of the Court of Appeal.
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Those of us who sit in the highest tribunal in this land in the House of Lords know how often we are divided three to two. We cannot always be right, and it is the mark of a judge who has not identified the true principles involved that he is never reversed. If he identifies the true principle, if he identifies the real question of principle to be decided, it is just as likely as not that in a certain proportion of his cases he will find an upper court reversing what he has done. It is the mark of a good judge to be reversed occasionally though it is not the mark of a particularly good judge to be reversed always.
But whereas the sentence of the court is a matter for the trial judge, sentencing policy is a matter for the Court of Appeal (Criminal Division). It is not a matter for the Lord Chancellor; it is not a matter for the Attorney-General; it is not a matter for the Home Secretary. It is a matter for the Judiciary, the Judiciary alone, and in particular the Court of Appeal (Criminal Division). That is where Clause 22 puts it. Fairly and squarely on the Court of Appeal (Criminal Division) it is now, and it will be thereafter, whatever the result of this proposal to delete the clause.
But I would say, with respect to the noble and learned Lord who sits opposite, that it is as important to get your principles right, your sentencing policy right, as it is your principles of law. It has been a wholly beneficial change in our criminal law during my professional lifetime that if a judge misdirects a jury, not only can he be appealed by the defence through the process of an application for leave to appeal, but the Attorney-General, as the instrument of justice, and, as the noble and learned Lord quite rightly said, in order to clarify for the future what principles you act on, can have an Attorney-General's reference.
In passing, I remind my noble and learned friend Lord Scarman that we do our best to preserve anonymity in those cases, as he knows. We do our best, and we know that we shall not succeed in every case because some cases are already so notorious that the identity, although superficially concealed, will be fairly widely known. Therefore, when the noble and learned Lord, Lord Elwyn-Jones, places his case on principle, my principle is the same as his. I do not think I have said—at any rate until this moment—anything which the noble and learned Lord who has spoken in this debate on the opposite side could reasonably complain of.
Lord Elwyn-Jones: I am grateful to the noble and learned Lord for giving way. On the matter of practice is the noble and learned Lord suggesting the Criminal Division of the Court of Appeal have been neglecting their duty up until now in stating principles clearly and well when they think right as the matter arises?
The Lord Chancellor: The noble and learned Lord will see as I go along that I have not missed any of the more obvious points, and that is one of them that I shall not miss. I am not quite so silly as he takes me for.
Having said that—and I think I may have committed myself to my own credo in this matter—I come back to perhaps the very point which the noble and learned Lord has just put to me. This does not

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have its origin in press criticism. It does not have its origin in party conferences. It does not have its origin even in women's organisations, although I much appreciated the courageous and well-spoken speech of the noble Baroness, Lady Phillips. It has its origin in the Lord Chief Justice. No less; no more.
He was speaking at the Mansion House in, I think, the summer of 1983 at the Judges' Dinner, in the presence of the assembled Judiciary of England and Wales, I think with one or two Scots guests. He was speaking about the difficulty of the judicial role. He said, incidentally, at the beginning of the passage I am about to refer to that the first thing that a judge needs is a thick skin, and I rather agree with that. Then he went on to say this and I quote his actual words:
"Then there are the occasions, happily not frequent, when there is an outcry about a particular sentence passed by a judge, usually because it is said to be too lenient. This difficulty will never be cured"—
I repeat, "This difficulty will never be cured"—
"until there is introduced, as there should be, with suitable stringent safeguards, a right in the Crown to appeal a sentence manifestly too light".
That is what he said. In fact, he went on to elaborate it.
I was present at that dinner. May I say, perhaps indiscreetly, perhaps unconstitutionally, that I played no part in the introduction of this particular clause. I was present at that dinner and I reacted to what the Lord Chief Justice said. I reacted to what he said in almost exactly the words which have been used against this clause, subject to the fact that he asked for stringent safeguards.
4.30 p.m.
I was afraid that he was suggesting a retrial in the sense of double jeopardy. As a matter of fact, that is a construction which, in the heat of the moment, could legitimately be put on the words I read out. It is almost as important not to have double jeopardy in sentence as not to have double jeopardy in conviction. A man must not be put on trial twice, once the trial has come to a legitimate conclusion. That is almost, though perhaps not quite, as important in relation to sentence as it is to conviction. I thought perhaps that was what was being suggested at the time, and I said so in my speech in reply, which came later in the evening.
The other thing which concerned me was precisely the point of which the noble and learned Lord spoke earlier; that is, the role of the prosecutor at the trial. I have already said that I regarded it from the earliest moments—and I received it from my father before me—that the function of prosecuting counsel is to be objective. If he knows points favourable to the accused which are undisputed, whether on conviction, on sentence or on a mitigating factor, he ought to bring them out to the jury, if the case is contested, and to the judge if the judge is dealing with a plea of guilty.
I was afraid that that criticism might be true. But if the clause is examined further it will be found that it is not in the form in which it has been proposed by my right honourable and learned friend and by the Government. It is not subject to either criticism. It is for the Court of Appeal (Criminal Division) to decide, in the particular circumstances under discussion, what
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sentence should be imposed. Sentencing policy is with them under the clause, as it is now, and nothing that counsel for the prosecution can say imposes on him a duty—I hope the reverse is true—to ask for any particular sentence, and particularly any sentence in the direction of severity. So that is a genuine fear. It is one I shared myself when I heard the proposal first made. It is one which I think has been met in the clause which has been put before the Committee.
The noble and learned Lord and I believe, my noble and learned friend Lord Edmund-Davies—certainly someone from the Cross-Benches, said that there is ample machinery already. Says the noble and learned Lord, Lord Elwyn-Jones—this is the question he asked me a moment ago—"Ah! but in the rape case, where the man was fined £2,000, the Lord Chief Justice took an early opportunity to lay down guidelines from his seat in the Court of Appeal (Criminal Division)". So he did; and he made his speech which I have just quoted after having just done so, if my recollection is correct.
In passing—and again it may be I am being indiscreet—I may say that the moment I saw that case I spoke to him. We both agreed that something had to be said, and he said it; but he said it in the context of somebody else complaining in a sexual case that his sentence had been excessive. That is an extraordinary way of having to set about things. He had to wait until somebody complained that his sentence was too severe before he could indicate by oblique reference, even, that a particular sentence was inadequate. What an extraordinary thing to make him do! The noble and learned Lord says that that is good enough. I venture to ask the House to say that that is not good enough; that the proper way is to apply an astringent, objective reference in exactly the same way in relation to sentence as has already proved successful in relation to conviction. That is my answer to the noble and learned Lord's question.
Some noble and learned Lords and some noble Lords may say, "But the Lord Chancellor may have a word with an errant judge". That is all very well. Perhaps to an assistant recorder who has been consistently too lenient over a period of time one might manage to say something, but I do not recollect having done so since 1979. It is easier for the presiding judge, because he is a High Court judge on the circuit. It is possible for the Lord Chief Justice; but justice should not only be done (Oh, dear, I am going to use a cliché!) it should be seen to be done. Is a private word from the Lord Chancellor or from the Lord Chief Justice or from the presiding judge to take the place of a judgment of the Court of Appeal (Criminal Division)? My noble and learned friend Lord Edmund-Davies spoke about detestable opinions. Is that not a detestable doctrine? I think it is. Let what is said about sentencing be said in public, so long as it is said about sentencing principles. Let it be said, if need be, in the context of a particular set of facts.
Then it is said "Oh, dear; but there are the sentencing seminars at Roehampton". Every year in which such a sentencing seminar has been held I have opened every single one and spoken at their dinners. And very valuable they are. I would not be without them for worlds. They help to give the Judiciary—and, in particular, the new Judiciary, although the seminars

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are not held only for new judges but for the junior Judiciary: potential deputies, the acting stipendiaries, acting recorders and recorders—a three dimensional sense of what the sentencing processs ought to be. They visit prisons; they have police officers to address them; they hear distinguished psychiatrists and doctors; and occasionally they even listen to a High Court judge.
It is not good constitutional doctrine to say that this is a substitute for the principles of sentencing in the Court of Appeal (Criminal Division). If I may say so with the greatest respect both to my noble friend Lord Morris and to my noble and learned friend Lord Scarman, it is they who are guilty of constitutional monstrosity. It is necessary as a matter of practical necessity for the Court of Appeal (Criminal Division) to be in charge of sentencing principles. They cannot properly or completely be so in charge if they limit themselves to cases in which what they have to decide is limited to whether a sentence is excessive.
I now return to the speech of the noble Baroness, Lady Phillips. I think that the grandees of the legal profession who have spoken in this debate with such force, including my noble and learned friend Lord Simon of Glaisdale, who threatened me with bishops, take too little account of public opinion. The difference between being Lord Chancellor in 1970, which I had the honour to be first, and being Lord Chancellor from 1979 to 1984 under a number of Home Secretaries, has been, first of all, the question of matrimonial legislation, which I will not trouble the bishops with on this occasion but which I hope we have amicably settled in the course of debate in this House and elsewhere.
The other point is the growing volume of complaint that the sentences of the criminal courts are too lenient. I can say, crossing my heart, that I always reply to these MPs' letters or these other letters in the same terms. I say that sentencing is not for the Lord Chancellor; the Lord Chancellor is not responsible for sentencing; I cannot comment on the particular case. I say that sentencing policy is a matter for the Court of Appeal Criminal Division and not for the Executive in any shape or form. I do not get much praise for saying that but that is what I say.
Having had week by week and year by year an increasing volume of complaint, I can say, equally crossing my heart, that although most of the complaints are without foundation—and there I would agree with my noble friend Lady Macleod of Borve: it is impossible to sentence in a case on the basis of a press report. Such reports are bound to be truncated and many of them are sensationalised. But although I would accept that statement from my noble friend at its full value, I am still left with the conviction that there is an irreducible minimum of cases where public opinion is right and the grandees of the legal profession have not been right.
I will say this—and I am going to be reminiscent for a moment, and am now fixing my noble and learned friend Lord Rawlinson with a basilisk stare. I have not always been wrong about such things. I can remember very clearly when I was what they call shadow Home Secretary and Mr. Roy Jenkins was the Home Secretary. He came to me—and I hope that he will not think if he reads what I say that I am breaking a
402
confidence—and he said that he wanted to have majority verdicts; he said ten to two. We talked about it and I said, "I will deliver. I will support you on that". I tried to square every grandee on my side of the House of Commons—and there were nine of them. They all were squared; and they all ratted on me before the end. Every one of them! They all said to me, "You are diluting the burden of proof". They all said to me, "You are undermining trial by jury".
The first verdict—and I told them that it was going to be so, although I did not tell them that it would be the first—given under that provision was a verdict of not guilty. Let us remind the noble Lord, Lord Hutchinson of Lullington, that one of the verdicts of not guilty by a majority was that of (I am not sure whether he still is a co-religionist) Mr. Peter Haine—not my favourite man—who was acquitted, and, in my opinion, quite rightly acquitted, on a charge of theft by a majority verdict. If he had not been acquitted he would have had to stand his trial again. I only say this to the House. I am fighting, it may be tenaciously, contra mundum; but history will say that I am right.
Lord Wigoder: When the noble and learned Lord, Lord Elwyn-Jones, and I, agreed that he might move this amendment, and that I might reply to it, one of the purposes of that was that we might demonstrate in a practical way that this was in no sense a party political issue. It is hardly necessary, I think, to pursue that aspect of the matter any further. Having heard three noble and learned Lords from the Cross-Benches opposed to Clause 22; having heard five noble Lords and noble Baronesses from the Government Benches, including one former Attorney-General, opposed to Clause 22; and having heard only a single voice raised in its support, and that from the noble Baroness on the Labour Benches, I think it is perfectly clear that party political issues have nothing to do with the merits of what we are now discussing.
I want to devote myself briefly to some of the points made by the noble and learned Lord the Lord Chancellor, a formidable advocate, as we all know, and indeed—and I mean this as a compliment—someone who was well known in his days at the Bar for being the more formidable the weaker was his case. Let us look in a practical way at the problems that are going to arise. There is a case and a sentence is passed. There is not then a reaction of public opinion; that does not happen spontaneously. There is a reaction of the media—this is inevitably so. Sometimes it may be justified, often it is due to a misreporting, often it is due to a partial reporting, often it is due—and the noble and learned Lord knows this only too well—to an entirely appropriate sentence passed in a somewhat unhappily inappropriate way.
As a result of the outcry that then follows, the Attorney-General, through the medium of the Director of Public Prosecutions, wants to know whether the matter should be referred to the Court of Appeal. His first duty inevitably will be to go to the prosecuting counsel in the case and ask, "What do you think of the sentence?" I think it is quite idle to pretend that we can continue the tradition that prosecuting counsel are not concerned with sentences if they are to be consulted after a case as to whether, in their view,

403
the sentence is appropriate or not. We shall see in a minute the real problems that prosecuting counsel will have to face in answering that question. For what happens then is that there will be a reference to the Court of Appeal.
I do not believe that the Court of Appeal are going to welcome that. They are very desperately overworked as it is. If I may say so, I was extremely unhappy at the (I am sure, quite inadvertent) suggestion made by the noble and learned Lord the Lord Chancellor that in some way the noble and learned Lord the Lord Chief Justice of England approves of Clause 22. I should be very surprised if the noble and learned Lord the Lord Chancellor does not know perfectly well the views of the noble and learned Lord the Lord Chief Justice of England on this clause; and if the noble and learned Lord the Lord Chancellor wants to suggest that there is the slightest sympathy in that quarter for the way that the Government have gone about this matter, then I give the noble and learned Lord the Lord Chancellor an opportunity of doing so now.
The Lord Chancellor: I have not spoken to the Lord Chief Justice. I quoted him in a public speech directly, and I know that if he were here—whether he would approve this particular formulation or not, I know not—he would go at least as far.
Lord Wigoder: I can only say that I know perfectly well the answer.
Let us come now to this. What happens in practical terms in the proceedings on a reference in the Court of Appeal? Prosecuting counsel is there. He is asked, "What do you say about the sentence? Why did the judge pass this sentence?". He does not know. He does not know what influenced the judge. He does not know that the judge might have been particularly affected, as the noble and learned Lord, Lord Denning, said, by some passage in the evidence, by some part of the defendant's own evidence, by some particularly impressive statement in mitigation by the defendant's wife. In particular—and the noble Baroness, Lady Macleod of Borve, hit this nail very firmly on the head—prosecuting counsel has not the faintest idea of what was in the probation officer's report, the social inquiry report, which has been made to the judge and which may very much influence the judge in the decision he takes.
If we are going to go on to a system as proposed in Clause 22, we are going to have a situation in which prosecuting counsel, in defence of the system, is going to demand at every sentencing process in the Crown courts that the probation officer be called and that he should be cross-examined by the prosecuting counsel as to why he has made a particular recommendation on sentence. The noble Lord, Lord Elton, will know perfectly well that the prosecution service is in no position to withstand strains of that sort. So prosecuting counsel will have no idea why the judge passed the sentence.
The defence counsel will not be there: why should he be there? Why should a defendant, who cannot be affected, except notionally or as a matter of moral reputation, by the fact that he is being told that instead of being fined 100 he should have been sent to prison
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for two years, trouble to turn up to take part in these proceedings? What is going to happen in the Court of Appeal if the presiding judge says, "I would like a little elaboration of this particular point: what was meant when the defendant in his evidence said this, that or the other"? There will be a total silence. Prosecuting counsel is not properly instructed; defence counsel will in all probability not be there. And it goes without saying that the judge will not be represented—of course he will not be. Nobody will be there to put the reasons why, in a particular case on a particular argument in particular circumstances, the judge passed a particular sentence.
The whole proceedings, I venture to think, would bring our system of justice into total disrepute. The fact that in occasional circumstances in that situation an ex cathedra statement is handed down, saying, "In this particular situation we think the proper sentence might have been this rather than that" is not going to reassure public opinion. It is going to bring our judicial system into total disrepute.
The only other matter I would add is this. It is important of course that if sentences which may be too lenient are passed, there should be the machinery for putting the matter right. There is the machinery for putting it right. There is abundant machinery at sentencing conferences; there is abundant machinery for laying down guidelines. And the noble and learned Lord the Lord Chancellor knows this perfectly well, too. If there is today a particular case of, let us say, rape—for some reason we always talk about rape in connection with this sort of amendment—and a sentence is passed as a result of which there is some comment in the press tomorrow, it is well within the powers of the Court of Appeal to have a similar rape case brought into the list the day after tomorrow, and straight away the Lord Chief Justice is able to make comments which will affect the case that was in the list today far more quickly, far more readily and far more effectively than going through all the procedure of referring to counsel and the Director of Public Prosecutions, referring to the Attorney-General and, in a few weeks' time, giving notice and then, when the matter has gone completely stale, having these artificial proceedings in the Court of Appeal.
I venture to suggest to your Lordships that, on the merits of the argument today, Clause 22 ought not to remain part of this Bill and I would invite your Lordships in all parts of the Committee to join now and reject it.
4.53 p.m.
On Question, Whether Clause 22 shall stand part of the Bill?
Their Lordships divided: Contents, 98; Not-Contents, 140.

DIVISION NO. 1

CONTENTS

Abinger, L.

Belstead, L.

Airey of Abingdon, B.

Bessborough, E.

Alexander of Tunis, E.

Boyd-Carpenter, L.

Avon, E.

Brabazon of Tara, L.

Aylestone, L.

Braye, L.

Belhaven and Stenton, L.

Caithness, E.

Bellwin, L.

Cameron of Lochbroom, L.

405

Cathcart, E.

Merrivale, L.

Constantine of Stanmore, L.

Milverton, L.

Cox, B.

Moran, L.

Cullen of Ashbourne, L.

Mottistone, L.

Daventry, V.

Murton of Lindisfarne, L.

Davidson, V.

Noel Buxton, L.

De Freyne, L.

Nugent of Guildford, L.

Denham, L. [Teller.]

Orkney, E.

Drumalbyn, L.

Orr-Ewing, L.

Eccles, V.

Pender, L.

Ellenborough, L.

Pennock, L.

Elliot of Harwood, B.

Penrhyn, L.

Elton, L.

Phillips, B.

Faithfull, B.

Platt of Writtle, B.

Gainford, L.

Reay, L.

Gainsborough, E.

Renton, L.

Glanusk, L.

Renwick, L.

Glenarthur, L.

Rodney, L.

Gowrie, E.

Romney, E.

Gray, L.

St. Aldwyn, E.

Gray of Contin, L.

Selkirk, E.

Hailsham of Saint Marylebone, L.

Sempill, Ly.

Skelmersdale, L.

Harvington, L.

Soames, L.

Henley, L.

Southborough, L.

Hertford, M.

Stockton, E.

Home of the Hirsel, L.

Sudeley, L.

Hornsby-Smith, B.

Swinton, E. [Teller.]

Howe, E.

Taylor of Blackburn, L.

Kitchener, E.

Teviot, L.

Lane-Fox, B.

Teynham, L.

Lindsey and Abingdon, E.

Trefgarne, L.

Liverpool, E.

Trumpington, B.

Long, V.

Ullswater, V.

Lothian, M.

Vaux of Harrowden, L.

Lucas of Chilworth, L.

Vickers, B.

Luke, L.

Vivian, L.

MacLehose of Beoch, L.

Ward of Witley, V.

Mancroft, L.

Westbury, L.

Margadale, L.

Whitelaw, V.

Marley, L.

Young, B.

Marshall of Leeds, L.

Young of Graffham, L.

Massereene and Ferrard, V.

NOT-CONTENTS

Ailesbury, M.

Denning, L.

Airedale, L.

Derby, Bp.

Alport, L.

Diamond, L.

Amherst, E.

Donaldson of Kingsbridge, L.

Ampthill, L.

Edmund-Davies, L.

Ardwick, L.

Elwyn-Jones, L.

Attlee, E.

Ezra, L.

Avebury, L.

Falkender, B.

Banks, L.

Falkland, V.

Beaumont of Whitley, L.

Foot, L.

Beswick, L.

Gallacher, L.

Birk, B.

Galpern, L.

Blease, L.

Gisborough, L.

Boothby, L.

Gladwyn, L.

Bottomley, L.

Graham of Edmonton, L.

Brandon of Oakbrook, L.

Grimond, L.

Brockway, L.

Hampton, L.

Broxbourne, L.

Hanworth, V.

Bruce of Donington, L.

Harris of Greenwich, L.

Burton of Coventry, B.

Hatch of Lusby, L.

Caccia, L.

Henderson of Brompton, L.

Campbell of Alloway, L.

Henniker, L.

Caradon, L.

Hughes, L.

Carmichael of Kelvingrove, L.

Hunt, L.

Chitnis, L.

Hutchinson of Lullington, L.

Cledwyn of Penrhos, L.

Hylton-Foster, B.

Collison, L.

Ilchester, E.

Cork and Orrery, E.

Irving of Dartford, L.

Cornwallis, L.

Jacobson, L.

Cottesloe, L.

Jacques, L.

Craigavon, V.

Jeger, B.

Craigmyle, L.

Jenkins of Putney, L.

Cudlipp, L.

John-Mackie, L.

David, B.

Kagan, L.

Dean of Beswick, L.

Kearton, L.

Denington, B.

Killearn, L.

406

Kilmarnock, L.

Rugby, L.

Lauderdale, E

Sandford, L.

Lawrence, L.

Scarman, L.

Leatherland, L.

Seear, B.

Listowel, E.

Seebohm, L.

Llewelyn-Davies of Hastoe, B.

Sefton of Garston, L.

Lloyd of Hampstead, L.

Serota, B.

Lloyd of Kilgerran, L.

Simon, V.

Lockwood, B.

Simon of Glaisdale, L.

Longford, E.

Somers, L.

Lovell-Davis, L.

Stallard, L.

McIntosh of Haringey, L.

Stamp, L.

Macleod of Borve, B.

Stedman, B.

McNair, L.

Stewart of Fulham, L.

Mar, C.

Stoddart of Swindon, L.

Mayhew, L.

Strabolgi, L.

Mersey, V.

Swinfen, L.

Meston, L.

Terrington, L.

Molloy, L.

Thorneycroft, L.

Molson, L.

Tordoff, L. [Teller.]

Monckton of Brenchley, V.

Underhill, L.

Morris, L.

Wallace of Coslany, L.

Moyne, L.

Walston, L.

Nicol, B.

Wells-Pestell, L.

Onslow, E.

Whaddon, L.

Oram, L.

White, B.

Polwarth, L.

Wigoder, L.

Ponsonby of Shulbrede, L. [Teller.]

Wilberforce, L.

Wilson of Langside, L.

Porritt, L.

Wilson of Rievaulx, L.

Prys-Davies, L.

Winchilsea and Nottingham, E.

Rawlinson of Ewell, L.

Rea, L.

Winterbottom, L.

Roskill, L.

Woolley, L.

Ross of Marnock, L.

Wootton of Abinger, B.

Resolved in the negative, and clause disagreed to accordingly.
Baroness Trumpington: My Lords, I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Radioactive Waste Disposal
5.3 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Avon): My Lords, with premission, I shall repeat a Statement being made in the other place by my right honourable friend the Secretary of State for the Environment on waste disposal planning procedures. The Statement reads:
"With permission, Mr Speaker, I wish to make a Statement about the disposal of low and intermediate radioactive wastes. The House will recall that on 25th October 1983 I announced two things—a public consultation on the principles for assessing disposal facilities, and procedures for dealing with the possible sites which NIREX had inititally identified. These sites were at Billingham, in Cleveland, for deep disposal, and at Elstow, in Bedfordshire, for less deep disposal. The House will remember that the deep depository would be for the longer-lived, intermediate-level wastes, and depending on the geology, would be at least 300 feet deep; the other facility, for shorter-lived wastes, would probably consist of concrete-lined trenches up to 60 feet deep, covered by a thick layer of concrete, and a mound of earth.

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"The final version of the assessment principles is published today, and I have placed copies in the Library and the Vote Office. The report on the consultation will be published shortly. The principles are now accompanied by detailed guidance about the environmental assessments which NIREX will be required to produce covering where and how waste would be disposed of. These will have to include discussion of alternative sites.
"This brings me to the planning procedures. To ensure a fair comparison of alternative sites. I have decided that NIREX should be required to carry out geological investigations for at least three possible sites for each type of depository. Such investigations will themselves require planning permission. I am therefore revising the procedures and now propose to ask Parliament to give these limited planning permissions by way of a special development order. These limited permissions, given only for geological investigation, would carry no presumption that permission would be granted for the actual development of any site. Before development could take place, a public inquiry would be held which would examine all the alternative sites and also the environmental assessment for each site.
"As regards the less deep facility for shorter-lived waste, which is the bulk of the waste to be dealt with, I have asked NIREX to select and announce as soon as possible at least two further sites for investigation in addition to Elstow.
"As for the deep facility, for the longer-lived wastes, I have asked NIREX to start the search for alternative sites. Further work is however needed to review the technical options. I am therefore asking the nuclear industry to do two things; first, in consultation with the Radiochemical Inspectorate and the Nuclear Installations Inspectorate, to continue to seek ways of improving the condition of intermediate-level wastes for disposal; and, second, for NIREX to take full account, in the choice of sites, of research into methods of containing the radioactivity in the wastes. The necessary studies are bound to take some time. So, in order to avoid a further period of uncertainty at Billingham, I have invited NIREX, and they have agreed, not to proceed further with that site."
My Lords, that concludes the Statement.
Baroness Birk: My Lords, I should like to thank the Minister for repeating the Statement made in another place and to say, first, that the people of Billingham certainly will be greatly relieved when they hear of this Statement. The trouble is that if one shifts the place, one shifts the anxieties, and what the Statement does is to raise even more questions, but with very few answers. The instructions to NIREX should be fully published, not just in Parliament—and, incidentally, we have not yet had a chance to see the principles or the consultation instructions—so that the public themselves can know what is going on. This is a matter which causes enormous anxiety among people all over the country, particularly in those areas, certainly down the West coast, where they are concerned that theirs may be the place that is next chosen for nuclear waste disposal.
408
We do not know what is the time scale for the NIREX consultations and for NIREX to come forward with its suggestions and recommendations on areas. Have the Government any information about the areas that they have in mind? I am raising only the kind of questions which I think will be raised by people who are very concerned about this and about its effect on their own areas. What of the transport facilities for packaging the waste? The Tenth Report of the Royal Commission on Environmental Pollution stated in its recommendations that,
"The terms of reference of either the Radioactive Waste Management Advisory Committee or the Advisory Committee on the Safety of Nuclear Installations should be extended to cover the transport of nuclear materials".
Do the Government have any intention of implementing that recommendation?
The Royal Commission recommended also that the membership of the Radioactive Waste Management Advisory Committee,
"should be enlarged to include people with local government experience".
Do the Government have that in mind?
The commission also recommended that NIREX,
"should be enlarged to include independent members, appointed by the Secretary of State for the Environment, who are able to speak from a knowledge of wider public concern, and to contribute suitable scientific and environmental expertise".
I ask this question with rather a heavy heart because on 25th October 1983, the Secretary of State for the Environment, Mr. Patrick Jenkin, made a Statement in another place on radioactive waste. He said at column 147 of Hansard:
"I intend to seek the advice of the Radioactive Waste Management Advisory Committee and to strengthen the committee by appointment of additional members".
It is my understanding that no additional members have yet been appointed along the lines of the recommendation made by the latest commission. Perhaps the Minister can help me with that point.
What are the Government's views and proposals on the subject of dumping at sea? This is another area of concern in dealing with nuclear waste. Finally, can the noble Earl provide us with some idea of the amount of nuclear waste of this kind which has to be disposed of today? We know that it has been on the increase over the last few years. It may be that people believe the volume to be much greater than it is, or it may be that the volume is much less. It is important that the Government should be as open as possible about what I admit is an extremely difficult topic. It is one that requires a very careful balance. Above all, it requires the greatest concentration on the safety of the public.
Lord Ezra: My Lords, I, too, should like to thank the noble Earl for repeating this Statement and to reiterate the concern expressed by the noble Baroness, Lady Birk, on this whole issue. This is a very delicate matter, and it is one of great public concern. It is satisfactory to note that the Government are dealing with this question with great care and circumspection, and particularly that the Billingham issue has been resolved.
However, as the noble Baroness pointed out, the Statement still leaves certain questions to be answered. I should like to add to the points she raised—and I

409
hope that the noble Earl will reply—by asking this question: why have we been presented with this Statement before the consultation report has been put before us? We could have studied that first.
Secondly, in regard to seeking to revise the planning procedures, why are we being asked to short-circuit the normal procedures, in view of the fact that the areas likely to be affected even in the preliminary investigations would certainly like to be consulted in the normal way? If they were consulted in that way, and the points were put to them very clearly, this could serve further to allay public concern.
Baroness Nicol: My Lords, before the noble Earl answers—
Lord Skelmersdale: Order!
The Earl of Avon: My Lords, perhaps I may reply to the noble Baroness and the noble Lord. I am grateful to them for their reception of the Statement and for the even-handed way in which they are looking at this problem. I agree with the noble Baroness that it is important that the public know, that the public are brought along, and that the public are informed about Government thinking on this subject. I believe also that it is very necessary that a clear understanding of the problems attached to this particular nuclear waste are understood by people, so that they do not get into a panic about it, when such clear directives are being laid down.
The noble Baroness asked some specific questions. She asked about the timing. Subject to the outcome of the review I have mentioned, we would expect that a deep facility could be in operation in the mid-1990s; so there is nothing tremendously rushed about this. My right honourable friend has asked NIREX to start the search for alternative sites. However, it is also sensible to review the options for longer-lived waste on the basis of the most complete scientific information before alternative sites for a deep facility are identified.
The noble Baroness asked about the membership of NIREX. I can tell her that this matter has been looked at and is being watched. The Government are considering the appointment of independent members. They have taken the recommendations of the Royal Commission seriously. We now have additional medical members appointed to the Radioactive Waste Management Advisory Committee. So far as dumping at sea is concerned, we wish to pursue the suggestions of the Holliday report before there is any suggestion of this happening again.
The noble Lord, Lord Ezra, asked whether there was not a danger of pre-empting the planning. I do not think so. I believe that all this is about right. The planning ideas as laid down will enable the locals to have their say. At the same time they will ensure that all possibilities will be looked at.
The noble Baroness asked about the quantity of waste involved. I understand that the current accumulations of untreated, intermediate-level waste total some 30,000 cubic metres and that an additional 15,000 cubic metres can be expected to arise between now and 1990. By the year 2000 some 80,000 cubic metres will have been produced. Of this, it seems likely
410
that at least 72,000 cubic metres would have to use the deep facility.
I have endeavoured to answer specific questions and I should like again to thank the noble Baroness and the noble Lord for their positive response.
The Earl of Lauderdale: My Lords, can my noble friend shed a little more light on the question of dumping at sea, to which he alluded obliquely? Is it not the case that the sea surface of the globe is many more times than the land surface? Therefore, one automatically thinks first of dumping at sea, and was it not mistaken of this Government, and other European Governments, for that matter, to have allowed themselves to be pressurised by the maritime unions, whose scientific expertise is not very special?
Does not my noble friend agree that given the advances in vitrification, and its encasement in concrete systems, there are far better prospects for dumping at sea now than there have been hitherto? Is it not also the case that the Atomic Energy Authority in this country would much prefer to see dumping at sea restored?
The Earl of Avon: My Lords, sea dumping does of course remain an option, but its resumption will depend on the results of relevant international reviews which are currently proceeding and the best practical environmental options study recommended by Holliday. We have all discovered over the past few years that however one proceeds with this matter, the Government must bring the public along with them. I believe that sea dumping in particular is a case in point. Before we can proceed further we must not only look at these reports, but also try to educate the people involved.
Baroness Nicol: My Lords, does the figure which the Minister has given for waste to be dealt with include imported waste, or was he speaking only of our home product? If the figure includes imported waste, what proportion represents such waste and what proportion represents, as the noble Earl called it, a short-term hazard? Am I right in thinking that a short-term hazard in terms of radioactive waste really means a term of 300 years?
The Earl of Avon: My Lords, I am told that the figure includes some imported waste, but I do not know the proportion; I shall let the noble Baroness know what it is. My understanding is that the term involved is not as long as the noble Baroness suggests. Again, I shall let her know the answer to that question.
Baroness White: My Lords, as a member of the Royal Commission on Environmental Pollution, which produced the sixth report on nuclear energy, and having studied the relevant parts of the tenth report, I support the questions put by my noble friend Lady Birk. I also emphasise that I hope everyone in public life will encourage further scientific research into the problem of what we are to do with nuclear waste which already exists, which will not go away and which cannot remain indefinitely in the present storage conditions.

411
This is an emotional subject, as I know very well because I live in a part of Wales which has the geological conditions which might be conducive to exploration for storage purposes. People get extremely emotional about the subject and it is incumbent upon all of us to emphasise and re-emphasise that this is a problem which has to be faced and that the more scientific evidence we can obtain, the better.
The Earl of Avon: My Lords, I would not cavil with one word of what the noble Baroness says. In fact, I think I agree with every word.

Prosecution of Offences Bill [H.L.]
5.20 p.m.
House again in Committee.
Clause 23 [Power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings]:
Lord Elton Lord Elton moved amendment No. 68:
Page 23, leave out lines 13 to 16 and insert—

("(i) in the custody of a magistrates' court; or

(ii) in the custody of the Crown Court;").

The noble Lord said: I rise in rather more subfuse circumstances to move Amendment No. 68, and in so doing I will also speak, with your Lordships' permission, to Amendments Nos. 69, 70, 71, 72, 73 and 74:
Amendment No. 69: Page 24, line 7, leave out from ("person") to ("or") in line 8 and insert—
("escapes from the custody of a magistrates' court or the Crown Court before the expiry of a custody time limit which applies in his case;").
Amendment No. 70: Page 24, line 20, leave out from ("person") to ("or") in line 21 and insert—
("escapes from the custody of a magistrates' court or the Crown Court").
Amendment No. 71: Page 24, line 41, at end insert—
(" "custody of the Crown Court" includes custody to which a person is committed in pursuance of—

(a) section 6 of the Magistrates' Courts Act 1980 (magistrates' court committing accused for trial); or

(b) section 43A of that Act (magistrates' court dealing with a person brought before it following his arrest in pursuance of a warrant issued by the Crown Court);

"custody of a magistrates' court" means custody to which a person is committed in pursuance of section 128 of the Magistrates' Courts Act 1980 (remand);").
Amendment No. 72: Page 25, line 12, leave out from ("is") to the end of line 14 and insert ("in the custody of a magistrates' court or the Crown Court—").
Amendment No. 73: Page 25, line 15, leave out ("so remanded") and insert ("in the custody of a magistrates' court").
Amendment No. 74: Page 25, line 18, leave out ("so committed in custody") and insert ("in the custody of the Crown Court").
Having moved the amendment I shall, with your Lordships' permission, move the remainder en bloc.
These are technical amendments clarifying the periods of custody to which a time limit may be applied to take account of the voluntary bill procedure which at present the clause does not. Their effect is to ensure that any person who is in the custody of the Crown Court—whether he has come into its custody having been committed by a magistrates' court or having been indicted under the voluntary bill procedure—enjoys the protection of any custody time
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limit which might apply. The inclusion of a corresponding definition of custody of a magistrates' court simplifies the drafting of the clause.
Lord Elwyn-Jones: Without prejudice to Amendment No. 75, which proposes to leave out Clause 23, the suggestions in the amendments do indeed seem to be sense.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment Nos. 69 to 74 en bloc:
[Printed above.]
On Question, amendments agreed to.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 75:
Leave out Clause 23 and insert the following new clause:
("Limit on custody before summary trial.
—(1) Subject to subsections (2) and (3) below, an accused who is remanded in custody for a summary offence, or for an offence to which the accused consents to summary trial, shall not be detained by virtue of that remand and any further remands for a total period of more than 40 days, unless the summary trial is commenced within that period, which failing, he shall be released forthwith and thereafter he shall be forever free from all question or process for that offence.
(2) A single Judge of the High Court may, on application made to him for the purpose, extend the period mentioned in subsection (1) above, where he is satisfied that delay in the commencement of the trial is due to—

(a) the illness of the accused;

(b) the absence or illness of any necessary witness; or

(c) any other sufficient cause which is not attributable to any fault on the part of the prosecution.

(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by notice of appeal presented to the High Court; and that court may affirm, reverse or amend the determination made on such application.
(4) For the purpose of this section, a trial shall be taken to commence when the prosecutor opens the case.").
The noble and learned Lord said: I am not sure whether we can discuss this with Amendment No. 76, but perhaps it might be convenient to do so.
Amendment No. 76: After Clause 23, insert the following new clause:
("Limit on custody before trial.
—(1) Subject to subsections (2) and (3) below, an accused who is committed for any offence until released in due course of law shall not be detained in custody for a total period of more than 110 days, unless the trial of the case is commenced within that period, which failing he shall be released forthwith and thereafter he shall be forever free from all question or process for that offence.
(2) A single Judge of the High Court may, on application made to him for the purpose, extend the period mentioned in subsection (1) above, where he is satisfied that delay in the commencement of the trial is due to—

(a) the illness of the accused or of a Judge;

(b) the absence or illness of any necessary witness; or

(c) any other sufficient cause which is not attributable to any fault on the part of the prosecution.

(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.
(4) For the purpose of this section, a trial shall be taken to commence when the oath is administered to the Jury.").
The difference between the two amendments is that Amendment No. 75 deals with a proposed limitation

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of time when an accused person can be held in custody in regard to summary proceedings, whereas Amendment No. 76 refers to those who are held in custody pending trial before the Crown Court.
One of the matters of great concern in recent years, and certainly until now, is the sense of unfairness that arises in the case of prisoners held awaiting trial for month after month, often in appalling conditions of overcrowding. When one considers those on remand in custody awaiting trial in the Crown Courts, recent statistics show that in 1983 47,496 people were remanded in custody. The important question is: what was the outcome of the proceedings against them? Approximately 4 per cent. were acquitted and 29 per cent. given non-custodial sentences. Those in the 4 per cent. and 29 per cent. categories may well have been in prison for months and months.
In Leeds gaol on 25th October 1983, of the 360 remand prisoners on one wing 130 had been awaiting trial for more than 110 days. In Strangeways on 9th November 1983, 97 remand prisoners from a total of 431 had been waiting for more than 110 days. That means that some, at any rate, of those held for that immense period of time may be found not guilty and a substantial number of them may be dealt with other than by being given a sentence of imprisonment. That is a basic unjustice, especially bearing in mind the length of time about which we are speaking.
As to the amendments tabled, and certainly the amendment limiting the power to hold in detention awaiting trial in proceedings coming before the Crown Court, the inspiration for the proposal is what is happening in Scotland, and has been happening for almost 100 years, where there are specific time limits of 100 days in regard to indictable offences. It is, of course, appreciated that there may be occasions when delays occur through no fault of the prosecution or the police. Perhaps I should deal in turn with what the amendments propose, and I make these submissions with the powerful support of the National Association of Probation Officers.
As regard those awaiting summary trial, the maximum period during which they may be remanded in custody is proposed to be 40 days and no more. In Amendment No. 75 we have the provision that,
"A single Judge of the High Court"—
I am referring to subsection (2)—
"may, on an application made to him for the purpose, extend the period mentioned in subsection (1)"—
that is, the 40 days subsection on summary trials—
"where he is satisfied that delay in the commencement of the trial is due to—

(a) the illness of the accused;

(b) the absence or illness of any necessary witness: or"—

and this is a fairly wide-embracing provision to prevent abuse by the guilty, or by the accused for that matter, of what is proposed—
"(c) any other sufficient cause which is not attributable to any fault on the part of the prosecution".
There is then provision in subsection (3) that,
"The grant or refusal of any application to extend the period"—
that is, the 40 days—
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"may be appealed against by notice of appeal presented to the High Court; and that court may affirm, reverse or amend the determination made on such application".
Therefore, there will be reasonable provision for the unavoidable time delays in that class of case.
When we come to the trial of indictable offences it is proposed that,
"an accused who is committed for any offence until released in due course of law shall not be detained in custody for a total period of more than 110 days, unless the trial … is commenced within that period … he shall be released and thereafter … be … free from all question or process for that offence".
Again, there are the qualifications in subsection (2) of the kind that I have already indicated in regard to the 40-day limitation. There is the general provision that,
"any other sufficient cause which is not attributable to any fault on the part of the prosecution",
may be called in aid by the Crown, and:
"The grant or refusal of any application to extend the period [of 100 days] may be appealed against by note of appeal presented to the High Court [which] may affirm, reverse or amend the determination".
5.30 p.m.
It is our view that these amendments and this imposition of a time limit, subject to those relaxations which are provided for in the amendments, would put pressure on prosecutors and courts to prepare and administer cases speedily, and may also lead to a more efficient use of bail. It is the lamentable fact at this time that the number of prisoners in prison is as high as, if not higher than, it ever was. I am not sure what the immediate figures are. That, in turn, means that the conditions of overcrowding in some prisons, and particularly in some of the remand prisons, are appalling. Complaints about Brixton, where large numbers of prisoners are kept, have been raised in your Lordships' House time and again.
It is indeed sad that so little has at any rate been accomplished. It may well be that some efforts have been made to deal with the problems, but still we have conditions in remand prisons which are often far worse than prison conditions of other kinds which a man may suffer when in due course he is sentenced to a term of imprisonment. That is intolerable. I have indicated from the statistics that I mentioned earlier what kind of numbers we are considering.
We therefore feel that what is proposed will be just and will do a good deal to reduce the daily prison population, and we think that it will be fair for the reason that I have mentioned. Partly it will give protection to the rights of prisoners, who are of course presumed innocent until they are proved guilty. In addition, the speeding up of trials while the evidence is still fresh will greatly improve the quality of the administration of justice, both, if I may say so, for the prosecution and for the defence.
For those reasons, I hope that the noble Lord the Minister who I know has expressed sympathy about this problem, will be able if not to accept the amendments as they stand—and I see a doubtful look on his face when I suggest that he might be willing to do so—at any rate to point to some positive amelioration in what has become a scandalous state of affairs. I beg to move.
Lord Elton: If your Lordships will permit me, I will just say this—and I put in parenthesis at this point that it is Committee stage and I can stand up to speak, I regret to tell your Lordships, as often as I like. The noble and learned Lord has argued the case for his solution to the problem which we agree exists, but his proposal is also to remove the solution which the Government already have in the Bill. I did not hear him adduce reasons why that was not a good solution. Should I wait for one of his comrades in arms to do that, or should I, after the noble and learned Lord, Lord Denning, has spoken, expect him to speak again?
Lord Elwyn-Jones: Perhaps I may express my objection briefly but brutally. The Government's solution does not go anything like far enough.
Lord Denning: This is an important point. If we refer to the report of the Royal Commission, we find that it went into the practice and experience of other countries—the United States, the Netherlands, and so forth—where they have fixed time limits for the bringing of prosecutions. It found that in nearly every case they did not work satisfactorily, so that report came rather reluctantly to the conclusion that we should not try to introduce time limits at all. It pointed out, quite rightly, that the time when a case comes on depends very much on the volume of business coming into the courts—there may be hundreds or thousands more cases—and then on the number of courts available to deal with them. The reason for much of the delay is that there is a great increase in the volume of cases coming forward and not enough courts to deal with them. That is the problem, which can be dealt with administratively.
The Royal Commission did not think that it would be of much use to put on time limits because there would be these unsatisfactory circumstances. When the man was in custody, the prosecution would rush the case on as quickly as it could so that the man should not get away with it; but, on the other hand, that would mean that all the people on bail would have to wait much longer for their cases to be tried. They might have to wait two or three years on bail waiting for their cases to be tried because the custody cases were given priority. That was the big problem which the Royal Commission had to face. It said that on the whole it did not think that it was practicable or good to put on time limits.
Having seen both the solution put forward by my noble and learned friend Lord Elwyn-Jones and, indeed, if I may say so, that put forward by my noble friend Lord Elton, I do not know that there is much to choose between them. But I would certainly support an attempt in this country to impose time limits for certain stages of the proceedings. At least that would provide an incentive for all concerned with prosecutions to get on with the cases as quickly as they could within the specified time limits. Of course, there are exceptions. As the amendment suggests, let a High Court judge extend the time, and so forth. But at all events let this be tried. Let time limits now be applied in our jurisdiction.
If that is so, the real contest in principle is which is the better solution. My noble and learned friend Lord Elwyn-Jones said that we could not do better than take
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a leaf out of Scotland's book. We have often found that in our jurisdiction in England. We are taking a leaf out of Scotland's book in some of the prosecution systems that we have now, with the procurator and all that sort of thing. Scotland has had experience of such things.
My great objection to the solution in the Bill itself is that it leaves all this so much to regulations. There are the regulations about specified preliminary stages; the regulations apply only to certain areas and not others; and so forth. It is going to be very complicated, and people will have to go to the regulations to find out what should happen. I myself do not like regulations. I never know where they are, and they have to be put out somewhere. From that point of view, if I may say so, I should prefer the amendment, which is clear and specific. It gives the number of days—how long there should be at each stage—quite clearly. On the whole, I prefer the amendment, but it is such a debatable point that I should very much like to have the Government's specific views in favour of their clause.
Lord Rawlinson of Ewell: I apologise to your Lordships for not being here at the start of this debate. I was defending my conduct over the last amendment to some of my friends. It gave me a great feeling of déjá vu to hear the noble and learned Lord, Lord Elwyn-Jones, make his speech. I certainly heard the majority of it. I think certainly since the 'sixties, on one side or the other, in one or other House of Parliament, either he, myself or someone close to us has been putting before either House of Parliament the requirement for some time limit for cases to be brought more quickly to trial. It has gone on and on for 25 years.
In my view, the problem cannot be solved by the amendment which is set out by the noble and learned Lord. Of course, in some ways it prescribes, as it were, a perfect solution but it just is not realistic and practical. Over the past 25 years there just have not been the resources allocated to all the matters that are required to obtain much speedier trials. There have not been the courts built by any Administration for 25, 35 or more years. There are not the staff, there are not the services, and there are not the judges. It can never be done unless you do all these things and have all these resources made available so that then you could have cases brought on for trial more swiftly.
As the noble and learned Lord, Lord Denning, has said, when he referred to the Royal Commission with the reference to the experience of overseas jurisdictions, it is true that some jurisdictions think we are much too swift, that we bring on cases too quickly. They say they are much more sure. In fact, compared with many countries, our present administration of justice especially in bringing cases to trial is very much superior in the field of common law jurisdiction. I think that the aim of the noble and learned Lord is right, and it is right to have the debate about it, which is the traditional debate which we always have had about this matter. We all ask and hope that things can be improved, but everybody secretly knows that until you can get all the resources together and until you can get the provision for them all you will not make a serious inroad into the time awaiting trial. Therefore I personally much prefer the amendment proposed by my noble friend the Minister to that put forward by the noble and learned Lord, Lord Elwyn-Jones.
Lord Hutchinson of Lullington: I must say that I am a little disappointed that the noble and learned Lord is already showing signs of backsliding. I should like to support the amendment because it is not complacent. I have just listened to the noble and learned Lord saying how for 25 years we have wanted this and we have wanted that and we all know secretly there will never be an improvement. That has led to the situation in which we are now. I support this amendment because drastic measures have to be taken with the situation with which we are now so familiar, although there will be practical difficulties about the 110 days and the 40 days. Of course all of us know there will be practical problems which will have to be resolved.
Over four years ago I initiated a debate in this House on the plight of the remand prisoner. Since then, in debate after debate, in Question after Question, that plight has been referred to. Now the position of the remand prisoner in local prisons is absolutely no better than it was four years or more ago. Something radical has to be done to get those people out of those prisons and to prevent their being there for anything up to 12 months or 18 months before their trials come on in the Crown Courts and in the magistrates' courts.
It is a scandal. The only way to deal with it now is to bring in some kind of sanction such as is put forward in this amendment. Every effort has been made to try to improve the situation. All kinds of suggestions have been put forward to the Lord Chancellor's department, by the Criminal Bar Association and by the Law Society, to improve matters. Nothing is done except to build more and more courts and to make more and more judges. With the greatest respect, that is not the solution. Somehow—and here I include lawyers—the sloth of lawyers and other persons who are waiting to deal with cases must be got rid of. People must have some kind of incentive to get on with their cases, to have cases heard. It is this amendment which, if I may say so, my noble friend Lord Donaldson, has long supported. Indeed four years ago, he was supporting this idea and I was pointing out to him the difficulties of it. However, I think now most of us have come to the same conclusion: that this is the only path forward.
5.45 p.m.
Lord Donaldson of Kingsbridge: I should just like to associate myself, in part, with the noble and learned Lord, Lord Rawlinson. He was on a committee for which I produced a report in 1958, which I think referred to this. If it did not, as my noble friend Lord Hutchinson, says, we have from these Benches moved, I think in every Criminal Justice Bill for the last 10 years, an amendment to this effect.
It used to be laughted at: "Don't talk such absolute rot. It cannot possibly be done". Now there has been a marvellous change of heart on the part of the Home Secretary. I wrote to him congratulating him on it with enthusiasm. It is now in the Bill. It is perfectly reasonable to try to set a time limit. But, alas, the Home Secretary is doing what the Home Office always does, which is having lengthy experiments—pilot schemes, as they are often called. Judging by the report on drunkenness in 1972, if it is going to take as long to do this as to do what that report recommended—which has not been done anywhere yet; it is still in the
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very early stages of discussion—this means that this is going to be put off for another 20 years.
I give the Home Secretary and the noble Lord on the Front Bench total credit for being sincere in their belief that this ought to be done. We want to make it more difficult for their very cautious advisers to see that it is not done. I believe that an awful lot of people among these advisers believe that it should be done but they are nervous of the effect it will have.
The effect is a perfectly simple one. It will be a choice between two evils: would you rather have a large number of people kept in prison when they should not be there, or would you rather have an approximately similar number of people out on bail for longer than they would otherwise be? It is as simple as that. You can do one or the other. My view is that the evil of keeping in prison people who should not be there is worse than the acknowledged evil of putting people back on bail in order to bring other cases forward.
However, I repeat my satisfaction that it is now in a Bill and will become an Act. This is the right thing to try to do. I hope that my noble friend and the noble Lord, Lord Elwyn-Jones' amendment will stir the Government to pressing on and doing something of a drastic kind about the situation.
Lord Elton: The noble and learned Lord, Lord Elwyn-Jones, gave an apt description of the evils which he, the Government and his noble friends all over the place wish to remedy. It is one of the odd and I think agreeable experiences of service at this Dispatch Box that I spend so much of my time striving after the same objects as the noble and learned Lord and his friends on the other Benches. Then I have to spend part of my time persuading them that that is what I am doing and a great deal more of my energy persuading them that I am doing it in a better way than they are. That is just to inform the Committee that in some senses this is a familiar tune that I am playing but I have good reason for playing it.
I hope that I shall persuade the noble and learned Lord—my noble and learned friend, if I may return the compliment—Lord Denning, that there is indeed quite a bit to choose between the two paths and that ours is the preferable one. Of course we recognise the example that the Scots have set. One has only to see the number 110 written anywhere in the past two years for me immediately to think of this particular rule because it has been put before me so often in so many various contexts.
The noble Lords would adopt, in place of the enabling power that we propose in Clause 23 and essential elements for the scheme that we propose, a ready-made scheme complete in its procedure and with specified limits. We also have been much influenced by practice north of the Border. I hesitate to criticise the amendments, but they fail to take account of the significantly different procedures and circumstances in the two jurisdictions we are looking at. I fear that the simple graft of the Scottish scion on to the English stock will not therefore take. Nonetheless, I suspect that the noble and learned Lord would like me to explain why the Government have not simply followed the Scottish model, taking these differences into account, which he has not.

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I should first make clear that the Scots do not have committal for trial in the English sense to the Crown Court by decision of a magistrates' court. The prosecutor there can, in effect, determine the mode of trial in most cases by choosing the court in which to proceed. It makes sense, therefore, to have a single time limit, where the accused is in custody, of 110 days from committal in the Scottish sense to the commencement of the trial. In England and Wales we judge that it would be preferable to have separate time limits for each stage, before and after committal, in order to establish with certainty how long might be available for each.
Secondly, delays to trial in the Crown Court in the most hard-pressed parts of the country—London and the South-East—are still very long; this is, I should add, despite the Government's actions to reduce them, in spite of the provision of more resources, and in spite of efforts to improve efficiency. A limit of 110 days on periods in custody awaiting trial on indictment in London and the South-East would mean either that a great number of extensions would be granted—that would draw the resources of both prosecutors and courts from other tasks and so be self-defeating—or that a considerable proportion of accused persons would go free without trial. Elsewhere a 110-day limit would not have these consequences.
Similar considerations apply to the magistrates' courts. To fix in statute single limits to apply nationally in summary or in indictable cases respectively would have the consequence that the limits in some parts of the country would be either unrealistically tight, with the damaging consequences that I have mentioned, or incapable of being implemented, while in other parts of the country they would be both realistic and helpful. That is why we have decided to mount field trials before settling the details of the scheme, including the choice of time limits.
I notice that two reflex actions have been triggered in your Lordships' Chamber by the Bill. One is the reflex action against the power to make regulations. The other is a reflex action against the proposal to have field trials. I hope that what I have said has begun to show your Lordships' Committee that both are necessary. We cannot put on the face of the statute a fixed limit in any part of the country until we are certain what is appropriate. We cannot in any case put on the face of the statute a single limit to apply to every kind of case in every part of the country or, indeed, to two kinds of cases, as the noble and learned Lord's amendment suggests.
This is not merely the view of the Government. When the Select Committee in another place recommended statutory time limits they said that there should be experiments to test what limits might be feasible and that they should take account of the special difficulties faced by the courts in London and the South-East. So that reflex has been overcome in another place. That is why the Government thought it right to proceed cautiously towards establishing a full system of limits. The Bill gives the Secretary of State power by regulation to define the preliminary stages of criminal proceedings which are to be made subject to a time limit and then to apply limits to them, if
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necessary making different provision in different parts of the country.
Another important difference between our proposals and those of the noble Lords is this. Theirs would bite on far fewer trials than ours. This is because they have only one set of limits of 40 or 110 days which apply only when the defendant is held in custody. If the defendant is not held in custody, no time limit applies. In this the noble Lords have not borrowed parts of the Scottish provisions, which apply a limit to bail provisions. Our view is that the principle of limits is a good one and that it should be applicable in all cases, not just in some of them. So we go further than noble Lords opposite. Plainly there is a more obvious need for them and a more obvious need for expedition altogether where the defendent is being held until trial in a prison. But the defendant on bail has a Sword of Damocles hanging over his head, too. And justice delayed is justice denied to him as well. We, therefore, propose eventually to bring in the limits in these cases too, though they will be longer than in custodial cases.
Mention of this difference leads me to direct the Committee's attention to another. The effect of the single limit proposed by noble Lords would be that once the original or the extended deadline had been breached, the accused goes scot-free—an appropriate phrase, given the noble Lord's source—the very next day. It offers no distinction in this respect between those held in custody pending trial and those who have been bailed. Our own view is that there may be important differences between the consideration of public protection in these two kinds of cases.
We therefore propose that the overall time limit within which any case must be commenced should be longer than the custodial limit within which a person may be held in custody pending trial. If the accused is in custody and has not been brought to trial by the end of the custodial limit, he must then be released from custody, but he will still be liable to trial, though only until the end of the overall limit. This seems to us a proper balance between the public interest and interest of the alleged offender. It seems to me a further reason for preferring the system that we propose to that proposed by noble Lords opposite.
A further point that I might draw to your Lordships' attention—and I think I must be full because I detect that the noble Lord wishes me to produce the philosophy of our scheme—is that the amendments would provide for extensions to be granted by a single judge of the High Court, if certain conditions were satisfied. The Bill provides for extensions by the court having charge of the case; that is, the magistrates' court in summary cases and in the period before committal in cases to be tried on indictment; and the Crown Court in indictable cases after committal. This seems to us a practical and sensible arrangement. If the amendment was accepted, I invite your Lordships to consider what would happen if, on the last day allowed for a trial to begin, the accused fell ill. The prosecution could not make its application for an extension in the court that would have heard the case, but would have to go to a High Court judge who would not, incidentally, have been involved in any earlier proceedings. This seems unnecessary and undesirable.

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It seems that we have covered, in our view, the circumstances in which extension may be granted more suitably from the point of view of England and Wales—I intend no criticism of the Scots—in the Bill than in the amendments. Illness or absence would be covered by the test of good and sufficient cause, provided, of course, that the prosecution could show that it had acted with all due expedition. We think it better to set a duty upon the prosecution in these terms, instead of relying on the concept of fault on the prosecution's part. Other of your Lordships will be able to judge better than I, but it seems to me that the word "fault", although well-established and understood by the Scottish courts, might create difficulties of interpretation south of the Border. The requirement of due expedition, on the other hand, is clear and strict.
Finally, the amendments would provide for a right of appeal against the grant or refusal of an extension. The terms of the amendments seem to us unsatisfactory in making the decision of a single judge of the High Court subject to review by the High Court; but that is not the most serious point. The Government are willing—I invite the noble and learned Lord to pay close attention to this—to consider whether an appeal should lie against a decision to extend, or not to extend, a time limit by a magistrates' court, but any provision should have regard to both the burden on the court to which an appeal would lie and the appropriateness of the route. I hope that your Lordships will allow us to give this aspect of the matter some further thought because from that I think that we can profit from the noble Lords' recorded advice.
6 p.m.
To sum up, I would say that we have here a means of establishing in this country a system which can take account of the different requirements, not only of different sorts of cases but of different parts of the country. It can also take account of the different requirements at different stages of the progress to trial. I hope I have shown that to do this it is necessary to have, as the House of Commons Select Committee advised, an experimental period, and in order to get this into the Bill it is therefore necessary to make a regulation-making power.
We hope to start the field trials in the course of this year—I think it was the noble Lord, Lord Donaldson, who felt that the phrase "field trials" spelt indefinite delay; I may have misheard him. We have not yet worked out with the judges and others to be consulted how long they should last, and the other details, but we have no intention of dragging our feet. We have an interest in this even stronger than that of your Lordships opposite. We all share the interest of justice, but I have the rather dolorous responsibility for the prisons and I have every interest, as has my right honourable friend, in seeing that we get any alleviation of that as soon as may be.
Lord Denning: May I just say that, having heard what my noble friend the Minister has said, I much prefer the clause as it is and should be against the amendment?
Lord Elwyn-Jones: In spite of that active discouragement from my old and noble friend, I should like to say that of course we sympathise with the Home Office in the appalling responsibility which faces it. The bald fact is that there are more individuals in prison in this country, per head of the population, than in any other country in Western Europe. Whose fault is that? It is partly the fault—
Lord Elton: The noble and learned Lord invites an answer. If it was a rhetorical question, I apologise for responding to it. We are a service industry. We are given duties by the courts. I should not wag a finger at the courts. I suppose it is the fault of the offenders themselves for committing their crimes.
Lord Elwyn-Jones: I doubt whether there is greater perversity in the British population as a whole—and I will not specify the foreign countries I have in mind, in case it might add to international discomity rather than harmony—but the fault is partly in the law which we are enforcing, partly in the administration, partly in the limited responsibilities which at the present time we place upon the prosecuting wing of government. That is why we think it of value that these time limits should be imposed.
I should like, less I be thought to be churlish, to join with the noble Lord, Lord Hutchinson, in noting with gratitude the fact that now there is a commitment, however qualified and limited, to make some attempt to impose limits on the holding of people in custody pending trial. What is lacking, however, in the proposals in the Bill is any precision, even a hint, first of all as to when these regulations will be made. I know the old answer will be, "Whenever it is possible", or some other avoidance phrase like that. If we could get a little help about that, it would be at least encouraging.
Clause 23 (1) provides:
"The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period".
Can the noble Lord perhaps give the slightest hint of what maximum period the Home Office has in mind? We have suggested 100 days for indictable offences. Is thinking moving in that direction, or is there so much caution and awaiting the field trials that there can be no indication yet as to what sort of periods of limitation the Home Office has in mind? There is now common ground that there ought to be a period of limitation, and that is a very important thing which has been accomplished by the pressures over the years in this field, from all sides of the House. If we could be given guidance about that, it would be helpful.
In spite of his discouragement, I share the concern expressed by the noble and learned Lord, Lord Denning, about the complexity of the regulations which are proposed. The noble and learned Lord referred to regulations which may,
"be made … to apply … in relation to proceedings … in specified areas",
and,
"make different provision with respect to proceedings instituted in different areas".
Is that degree of differentation and particularity so really necessary? It looks as if we are going to be

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enmeshed into a terrible bureaucratic jungle if we have to go down that road. Perhaps I may be oversimplifying. I have an open mind about this. I shall not announce my decision. The Committee will not be surprised that I shall not be seeking the views of the Committee on this matter, but before I say farewell I should like to hear the response of the Minister to what I have said.
Lord Elton: May the day when the noble and learned Lord says farewell be distant. If he means that he suspends his judgment as to whether to take the opinion of the Committee until he has heard me speak further, I should like to say that I have not a great deal more that I can say of comfort to him. I have offered to consider the concept of an appeal from a time limit and to embody that in what we propose. Whether consideration will lead to that resort is of course something which I cannot tell your Lordships before Report.
As to the extent of the period, I think it would be wrong to lead your Lordships to think that we had already picked on a time limit for either the South-East or anywhere else. But I think I can say that we would expect the result of the field trials to be comparable to what is provided in Scotland. They are of course intended in part to illuminate what those limits should be and also what the areas should be.
The noble and learned Lord directed our attention to Clause 23(2). The first two paragraphs of that subsection are relevant to this because different areas have different caseloads, proportionate to the capacity of the courts. The purpose of the field trials is to establish what are the time limits appropriate to those proportions. It seems to me that I cannot say much more to the noble and learned Lord. We shall do it as quickly as is prudent, and prudence involves the considerations which my noble and learned friend Lord Rawlinson mentioned to us. It also involves the question of what the courts can deal with as they stand.
I have said that we are anxious to do it as quickly as possible, that our general expectation is that what we come up with will not be radically different from that in Scotland, and that we are prepared to consider the principle of an appeal. I hope the noble and learned Lord will feel that this will keep him content until the Report stage.
Lord Elwyn-Jones: I am most grateful for that further elucidation. I forgot to note, with regard to the intervention by the noble and learned Lord, Lord Rawlinson, that it is to be hoped there will be a saving of resources and money if people are kept in prison for a shorter time. This is one of the factors. However, in the light of what has been said by the noble Lord the Minister, I ask leave to withdraw the amendment, with the possibility of returning to the matter again before this Bill has reached its ultimate destination and, in view of the fact that there are some good provisions in the Bill, receives Royal assent.
Lord Elton: I hope that particular phrase will not escape the Official Report.
Amendment, by leave, withdrawn.
On Question, whether Clause 23, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: I have one very small point which is really almost the same one as was made by my noble and learned friend Lord Elwyn-Jones, relating to subsection (2) and particularly the early paragraphs. It is a point which I made earlier and concerns the relationship of that type of provision to Clause 29(2). Clause 29(2) is a formula much cherished in the draftmen's office and I confess that I do not share their enthusiasm for it. But so long as we have it, it seems to me that one can economise on the type of provisions that are in Clause 23(2). Will the noble Lord the Minister consider the matter at this point along with the point at which I raised it earlier?
Lord Elton: The noble and learned Lord is gradually accumulating for me quite a weighty little portfolio to take to the draftsmen. I certainly undertake to add that point to it and shall write to him on all these matters when I am in a position to do so.
Lord Simon of Glaisdale: I am much obliged.
Clause 23, as amended, agreed to.
[Amendment No. 76 not moved.]
Clause 24 agreed to.
Clause 25 agreed to.
Clause 26 [Consents to be admissible in evidence]:
On Question, Whether Clause 26 shall stand part of the Bill?
Lord Rawlinson of Ewell: I want to raise one very short, small cheer that at last this provision has been incorporated into an Act of Parliament and that the consent of a law officer:
"shall be admissible as prima facie evidence without further proof".
It is obviously clearly necessary and I am very glad that the Government have taken the opportunity of putting this minor clause into the Bill.
Lord Elwyn-Jones: I share that enthusiasm. I did not know that there was that limitation.
Lord Elton: Out of courtesy I should thank my noble and learned friend for his intervention. I do not doubt that he has fought over the ground in the past and that he deserves the satisfaction that he now gets.
Clause 26 agreed to.
Clauses 27 to 30 agreed to.
Schedule 1 [Minor and consequential amendments]:
Lord Elton Lord Elton moved Amendment No. 77:
Schedule 1, page 29, line 12, at end insert—
("1A.—(1) Section 12 of the Magistrates' Courts Act 1980 (pleading guilty by post etc.) shall be amended as follows.
(2) In subsection (4) (notification of accused's desire to plead guilty without appearing before court to be read out) the words "by the clerk of the court" shall be added at the end.
(3) At the end there shall be added the following subsection—
"(9) Where the clerk of the court has received such a notification as is mentioned in subsection (2) above but the accused nevertheless appears before the court at the time and place appointed for the trial or adjourned trial the court may, if the accused consents, proceed under this section as if he were absent".").
The noble Lord said: I beg to move Amendment No. 77 and speak to Amendment No. 78.
Amendment No. 78: page 29, line 13, leave out ("the Magistrates' Courts Act 1980") and insert ("that Act").
These amendments seek to effect two changes in the guilty plea by letter procedure established under Section 12 of the Magistrates' Courts Act 1980. The first amendment, which will, subject to your Lordship's approval, be brought about by the insertion of the words "clerk of the court" in subsection 12(4) of the 1980 Act, is to provide for the clerk of the court in future to read out the statement of facts. As your Lordships will know, this statement of facts will already have been agreed between the defence and the prosecutor.
As your Lordships may be aware, the Royal Commission on Criminal Procedure advised that the proposed prosecution service should provide advocates in all cases where criminal proceedings are instituted by the police, other than those covered by the Section 12 procedure. Such cases, the Royal Commission said, only required someone to read out the already agreed statement of facts. It clearly would not be cost-effective for a trained lawyer of the new service to have to be present to perform this task. On the contrary, it would be an inefficient and wasteful use of resources. As the clerk of the court already reads out the plea in mitigation by the defence, the change proposed cannot be thought to identify the clerk (and by implication the court) with one party rather than the other.
6.15 p.m.
We are also taking this opportunity to rectify a minor defect in the guilty plea by letter procedure. This is the second change that would be effected by these amendments, by virtue of the insertion, if your Lordships approve the amendments, of a new subsection (9) into the 1980 Act. As your Lordships will know, Section 12 is designed to work in the absence of the accused. He will have formally notified the court beforehand of his intention to be absent, but notwithstanding this, in a significant number of cases the accused unexpectedly turns up. I would imagine he does so usually for the understandable reason that he wants to know as soon as possible what sentence is imposed in response to his plea of guilty. Unfortunately the court cannot, in such cases, proceed under the Section 12 procedure. Furthermore, as in future we envisage that the prosecutor will be absent in such cases, the court will be precluded by Section 15 of the 1980 Act from taking the defendant's guilty plea and proceeding anyway. The inevitable result is an adjournment, adding to delay and expense—exactly the type of problems Section 12 is designed to minimise. It would also be somewhat frustrating for the defendant, who has already taken the trouble of notifying his acceptance of the statement of facts and his intention to plead guilty by post. This amendment avoids these difficulties by allowing the court to proceed under Section 12 provided that the defendant continues with his plea of guilty and consents to the court so proceeding. Of course, if the accused has had a change of mind and now wants to contest the case, an adjournment is the right course and will have to be accepted.
The second amendment replacing "the Magistrates' Courts Act 1980" by "that Act" is a minor drafting amendment consequential on the first one. I hope that your Lordships will be content with these amendments.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 78:
[Printed above: col. 425.]
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Repeals]:
Lord Elton Lord Elton moved Amendment No. 79:
Schedule 2, page 32, line 50, at end insert—

("1983 c. 2.

The Representation of the People Act 1983.

In section 181, subsections (4) and (8).").

The noble Lord said: This is a minor drafting amendment consequent upon the repeal of the Prosecution of Offences Act 1979 effected by Schedule 2. It is also the last amendment on the Marshalled List. I should like to thank the Committee for taking many important and mostly wise decisions on this Bill. I beg to move.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
House resumed: Bill reported with amendments.

Fishing Vessels (Acquisition and Improvement) (Grants) (Amendment) Scheme 1984
6.20 p.m.
Lord Belstead: My Lords, I beg to move that the scheme laid before the House on 3rd December 1984 be approved.
The purpose of this statutory instrument is to extend for a further period of two years the scheme of Exchequer grants towards the cost of constructing and improving fishing vessels. The scheme will continue to be administered by the Sea Fish Industry Authority as the Government's agent.
The new instrument does not alter in any way the structure of the scheme as it has applied in recent years. Nor does it change the rate of grant of 25 per cent. of the approved costs of building new fishing vessels and modernising existing ones. This instrument simply extends the closing date, by which applications for payment of grant must be approved, for a further two years to 1st January 1987.
The grants scheme provides incentives for the rejuvenation of our fishing fleet by assisting owners to bring new and better-equipped vessels into service and to modernise existing boats. The original scheme—which we are now extending—ran for three years, during which time over £18 million was approved by way of grants to owners. In addition, the scheme provides the national grant element which is needed to enable our fishermen to be eligible for additional assistance from the European Community, and over the past three years this has meant a further £8 million of grants being awarded to United Kingdom fishermen.

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This two-year extension of the scheme gives the fishing industry a further period in which to re-equip itself, and, as it sees fit, to take advantage of the available fishing opportunities. It also brings the period during which the scheme will operate into line with those for the restructuring measures introduced early last year. This is a scheme which brings much benefit to our fishermen and one for which I believe there is still a need in the period ahead. I beg to move.
Moved, That the scheme laid before the House on 3rd December 1984 be approved.—(Lord Belstead.)
Lord John-Mackie: My Lords, I thank the Minister for putting forward this scheme which advances the date to 1987 when these grants will be available. The noble Lord said that £18 million had been paid out and that the Government were anticipating paying out another £8 million this year. I am sure that we all appreciate the need for these grants to the fishing industry, and I certainly have no objections to or criticisms of this scheme, although I warn the Minister that I shall have some on the next order which he is about to move.
On Question, Motion agreed to.

Agriculture and Horticulture Grant (Variation) (No. 2) Scheme 1984
6.23 p.m.
Lord Belstead; My Lords, I beg to move that the scheme laid before the House on 14th December 1984 be approved.
The scheme which is before your Lordships today has two important features. First, it is intended to achieve savings as part of agriculture's contribution to the reduction in public expenditure. Secondly, it takes a further step towards the integration of conservation and agricultural policies in the area of capital grants.
I should like to say a few words about the savings aspect. I appreciate that cost-cutting is never an easy or a palatable exercise; but your Lordships will know that the Government are determined to continue with their efforts to reduce public expenditure, and agriculture has to take a share in the national interest. However, in achieving the savings which are expected to flow from the changes set out in this order, the reductions in grant rates are designed so far as is possible to fall upon those areas which are best able to sustain them. But there is of course a problem. Previous savings exercises have also been concentrated upon these same areas of agriculture—essentially the cereals sector.
There is perhaps a level of grant rates below which it is not really cost-effective or productive to go. With the latest series of grant changes, we have reached the level of 15 per cent. for most grants in the lowlands, but this on its own would not produce anything like sufficient money for the savings we had to achieve. We had therefore to turn our attention to the uplands, the less favoured areas. It is also true to say that we did not want a too wide a differential between the lowland and upland rates of grant. Having said this, it is still the case that the less favoured area rates for land works and for grants beneficial to conservation are double those available in the lowlands, thus preserving the
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quite substantial differential which has existed for many years. It is also of interest that these changes have introduced new differentials for buildings and ancillary works such as gas and electricity supply, since the previous common rate of grant for these has been reduced in the lowlands but not in the uplands.
Noble Lords will no doubt have noticed the fairly substantial reductions which have been made to the rates of grant for drainage. This reduction was essential to the achievement of the necessary savings. In any case, drainage is an activity which the prudent farmer ought to undertake in the interests of good land management and returns a substantial benefit; it would have been impracticable to have left its comparatively high grant rates completely untouched. This change has, I know, caused concern not least in the drainage contracting industry; but in my view the worthwhileness of drainage will ensure its continuing to hold an important place in agricultural investment. Of course, the new less favoured areas now attract the higher rate of drainage grant.
In recent years, this Government have introduced grant packages to benefit certain sectors of the horticultural industry; namely, for the replanting of apple and pear orchards and for the replacement or improvement of existing glasshouses. I am pleased to say that we have been able to maintain this commitment to the horticultural industry, despite the financial pressures which have resulted in the changes which are before the House today.
I now turn to the other area where we have not only maintained our past commitments but have now improved upon them: I refer here mainly to conservation. Towards the end of 1983, as part of an exercise similar to the present one, we introduced enhanced rates of grant in the less favoured areas for the provision, replacement or improvement of hedges, traditional walls and shelter belts. As part of the present changes, we have taken the opportunity to extend this initiative to include hedges and traditional walls in the lowlands for higher grant. I hope that this will be a further incentive for well maintained and traditional field boundaries.
The other environmental change that we have made by this scheme will have at least as significant an effect as those that I have just described. The deleting of land clearance and reclamation works from the schedule of eligible operations in Great Britain means that the removal of stumps and other obstacles to conservation, land-levelling and grading in order to bring the land into agriculture is no longer eligible for grant aid.
Similarly, operations up to and including the deep ploughing of heath and moorland to convert it to pasture or arable cultivation will also no longer be eligible for grant aid will continue for the regeneration of existing grassland by shallow ploughing or surface treatment and the regeneration of heather by cutting or burning. When the new European Community Structures Directive is finally agreed, in implementing those new structures regulations, it is also our intention to look carefully at measures for helping conservation, in particular for encouraging farmers to diversify with non-farming enterprises.

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Finally, I should like to say a few words about the reduction in the investment ceiling. Your Lordships will recall that, in response to criticism that the larger farm businesses were getting more than their fair share of the grant paid, this Government introduced a ceiling on the amount of expenditure which, over a rolling period of six years, could qualify for grant. This ceiling applied to certain claims under the Agriculture and Horticulture Grant Scheme received after 1st February 1980.
I would emphasise that only a proportion of the larger farm businesses have invested at a level which could exceed £50,000 over a six-year period, that being the figure to which we are now reducing the ceiling. I would ask: how many smaller farms maintain a regular investment on grant-aidable items of some £8,000 to £9,000 a year, which is what will still be allowed on the £50,000 ceiling? We decided, therefore, to reduce the ceiling for all businesses rather than to reduce grant rates even further—a change which would have hit middle and smaller size businesses more than larger ones.
The change is not retrospective; it applies in exactly the same way as grant rate changes or the deletion of items from the schedule. It affects only expenditure which was not legally committed before 12th December 1984. Some agricultural businesses will therefore be able to claim grant on expenditure in excess of £50,000 because the expenditure was committed before 12th December last year.
Having regard, however, to the reason for the introduction of the ceiling it would have been inequitable to the great majority of farm businesses to wipe the slate clean for all and start afresh with a new ceiling of £50,000. It would also have given rise to administrative problems. I really believe that this reduced farm ceiling is not going to hurt the vast majority of farm businesses, and it will in fact affect only the larger farms. I commend this order to the House.
Moved, That the scheme laid before the House on 14th December 1984 be approved.—(Lord Belstead.)
6.32 p.m.
Lord John-Mackie: My Lords, the Minister has given a full review of what the order means. He pointed out the two main items in it: the savings and the fact that it was doing something to integrate grants which would help the environment situation, which is much to the fore at the present moment. I make no point at all about the Government's policy on savings. It is the Minister's job, I suppose, to find something from agriculture, and they have done it by reducing these grants by, I think the estimate is, £40 million.
I hate to use my age in anything, but I have been farming since 1926. Since that time, and from before that—it started way back at the end of the last century—the infrastructure of agriculture has deteriorated. It deteriorated worst after the end of the 1914–18 war, and continued to deteriorate right through the recession up to the middle of the next decade, 1935 to 1940; and it was pathetic to see that deterioration.
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This is not concerned with this order, but if I remember correctly the first grant was for liming, and that made a fantastic difference, if I may use the word, to the infrastructure of the land itself. From then on we had these grants to help farmers to improve the infrastructure of agriculture: the buildings, roads, fences—the lot, as shown in the schedule here, which gives all these things.
Here we have the situation that the infrastructure is something which few other countries have. The Minister made the point—and I appreciate it—that if a prudent farmer wants to do something to improve that infrastructure—his buildings, fences, roads, drains and so on—he should do it out of profits, and he would do it anyway if there was not a grant. My Lords, farmers are human beings like everybody else. There is no doubt that the attraction of a grant has led to this tremendous improvement in agriculture. However prudent you are, I do not think you will just sit down and spend money. The attraction of these grants has done the trick far better than anything else that I can think of. The Minister says that they have now got to a level where they cannot go much lower, Thank goodness for that; but a lot of them are pretty low now, and some have been removed altogether.
The Minister mentioned drainage. If I remember rightly, that was the next grant which came along after the liming grant. It alone has made a tremendous difference to our infrastructure in agriculture and the land. If you mention drainage to an environmentalist, he will immediately think of draining marshes and areas of special scientific interest, and so on, and not what we farmers think of as the normal job of draining our land and keeping it properly drained. I think the Minister would agree that an enormous amount of land is still to be properly drained in this country, and the drainage grant he mentioned is the one I would not have cut. I would have cut a lot of others but not that one, because it is so important.
I do not think that the 30 per cent. rise in relations to the hedges, walls and dykes built of traditional local material will have a lot of effect on the environment. I have always said—and I said it in the last debate—that I did not think that farmers had done all the harm to the environment that we hear of. I am not suggesting that there are not areas here and there; but, nevertheless, I doubt very much whether this will make a lot of difference. But, of course, it is there. I am sorry that the noble Lord, Lord Sandford, is not here. No doubt he would have had a word or two to say on this subject.
On the question of drainage, the Minister mentioned contractors. There is a lot of employment in drainage contracting work, and I hope that this cut in grant aid will not create more unemployment there. The other point is land reclamation. I know that in unfavoured areas it is not cut so badly, but nevertheless there are a lot of hill farmers and farmers in less favoured areas who rely on land improvement and on taking in more land to improve their financial position, and it would be a pity if the cut in grant stops that.
From there the Minister went to the ceiling. I think I would agree with him that larger farmers did have a big advantage in the high ceiling of spending that they

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could undertake to obtain a grant, and I do not think that the reduction to the £50,000 will have a great effect. It will certainly allow the class of farmer that he mentioned to carry on improving without losing anything there.
I should like the Minister to confirm the point that this is the last cut. He said that we had reached a stage where we cannot cut much more. With these few remarks on the subject, I would merely ask the Minister that question.
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord John-Mackie, for responding to this order. I entirely take the point from the noble Lord's experience that the institution of capital grants had a rejuvenating effect upon British agriculture after the appalling years between the two world wars, and particularly following the terrible recession of the 1920s and early '30s. Both the noble Lord and I from my generation are familiar with that, because we both of us live in the area which today in the east of the country is thought of as having achieved considerable prosperity and made great contributions to the national economy through arable farming, but which was probably hit as hard as any part of the country during those terrible years to which the noble Lord refers.
It is in those few sentences of the reply that I venture to give to the noble Lord that there are the seeds of the reasons why we have felt it necessary for agriculture to bear its share of savings in public expenditure in this country. I do not need to go into any detail at all about the problems, which all the European countries face of the production of surpluses; the difficulties which we face because of the great successes which our agriculturists, farmers and horticulturists have achieved. But it has meant that the nation has looked to agriculture to bear its share. In order for agriculture to bear its share we have had to look at capital grants.
In responding to the noble Lord, I should also say that it is important for us to remember that when my right honourable friend the Minister was speaking in public on 11th December about these decisions on capital grants he made the point that we are maintaining a level of grant which will enable our agriculture industry to maintain its competitive strength and to be ready, when the structures negotiations in the European Community are completed, which we hope will be soon now, for us to have in being a continuing capital grant structure through which we shall be able to avail ourselves of the new arrangements under the new structures directive. It is important that I say that because it is, in part, an answer to the noble Lord's question about where do we go from here. We believe strongly that we still have, and must have, a proper capital grant system in operation and we believe that we still have that.
I am afraid that in answer to the noble Lord's last question I cannot give any undertaking about future financial arrangements which involve both my right honourable friend and the Treasury. I assure the noble Lord that we are committed to keeping a proper capital grants structure in being.
Incidentally we are also committed, as we have shown we are committed in this order, to keeping a
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proper differential between the less favoured areas and the lowlands. My right honourable friend also made it clear that for the future he was committed to considering the claims of conservation whenever making any changes in capital grants, particularly looking at the new arrangements we shall need under the new structures directive, and also giving particular consideration always to the livestock sector.
I should say one word about drainage which the noble Lord raised. I will not conceal that we needed to look at drainage because the field drainage grants have been accounting for a considerable share of the total capital grants bill. In addition to that we felt—and the noble Lord picked the point up in the fairest possible way—that drainage is an operation which any prudent farmer who needs to, will undertake, because the payback is usually so swift. We were also bearing in mind that we were not removing the drainage grant completely. Indeed not: it is still 15 per cent. in the lowlands and 30 per cent. still in the LFAs, with a considerable additional acreage able to claim the new LFA grant, having come into the new LFA intermediate areas.
Finally, on conservation: the noble Lord said that he felt that perhaps the increased grants for conservation both last year and this would not have very much effect. I beg to differ. The grant rate is 60 per cent. It is a very high grant rate in the less favoured areas for the planting of shelter belts, the building of traditional stone walls, and we have brought into the grant rates as well, as I said in my opening remarks, the building of walls and so forth in the lowlands.
Lord John-Mackie: My Lords, may I—
Lord Belstead: My Lords, if I may add one last thing before I give way to the noble Lord, there is the other side of the coin. By taking land reclamation out of grant eligibility, we are doing what conservationists have been asking for again and again for the last few years: that is to give Government support to enable woodland, for instance, having been felled, to be cleared with grant aid so that it can be ploughed up for agriculture. That is something which conservationists say they felt that the Government could not stand by any longer. Constantly eating into the high heathlands and moorlands, higher and ever higher, with grant aid meant eventually that somebody had to say, "This has gone far enough". For those reasons I will not conceal from the noble Lord that the land reclamation removal of grants will have those effects. But if any farmer wants to re-seed existing grassland, then, as the noble Lord has probably noticed from the schedule, that will still be eligible for grant aid.
Lord John-Mackie: My Lords, the noble Lord made the point about this 60 per cent. for the less favoured areas but only 30 per cent. for the lowlands in the new grants to affect the environment. But may I point out that it is in the lowlands that the great criticism is heard, not in the less favoured areas? I have heard little criticism about what is happening in the less favoured areas. All the criticism is in the areas such as the eastern counties where the grant has been increased only to 30 per cent, but it has been increased to 60 per cent. in the areas where there has been no criticism.
Lord Belstead: My Lords, I do not agree that that is entirely the picture. Because of where we live, the noble Lord and I are very much aware of the criticisms directed at those of us who farm in the eastern counties, but, as the noble Lord will remember well from the important Countryside Commission report on the uplands, remarks are made about the need to improve the uplands. We believed that by bringing in these comparatively high rates of grant for positive conservation operations in both the LFAs and the lowlands we were doing the right thing. I must beg to differ from the noble Lord in that we are also doing the right thing by keeping the differentiation that exists between the upland and the lowlands.
I hope that I have referred to all that the noble Lord has said on this order. I deliberately have not said "answered" because I realise, fair-minded though the noble Lord always is, that there are aspects of the order which I do not think he and I will agree on from the point of view of Government and Opposition. Nevertheless, I hope that the noble Lord will now allow the order to pass.
Baroness White: My Lords, may I reassure the Minister that there are some people who very much approve some of the conservation measures which he has been describing. I hope that at some time my noble friend might visit the North York Moors National Park, for example, and see places where heather moorland has been ploughed up in order to grow highly expensive and unwanted cereals. If he moved occasionally from the lowlands to the highlands he would see some of the areas about which some of us are concerned.
Lord Belstead: My Lords, I am grateful to the noble Baroness for her intervention.
On Question, Motion agreed to.

Recreational Gardening Bill [H.L.]
6.49 p.m.
Lord Wallace of Coslany: 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 Wallace of Coslany.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Duty of certain councils to provide allotment gardens]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Wallace of Coslany: I wish this clause and Clause 2 deleted. The reason for my opposition to the retention of Clause 1 is that, as with Clause 2, it could be held to be imposing extra work upon local authorities at a time when they are experiencing great
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difficulties arising from the imposition of Government policies. On the other hand, the Government have objected to the two clauses on the grounds that, in effect they were imposing bureaucracy on local authorities, these are, of course, conflicting arguments which more or less come to the same conclusion; that is that the two clauses ought to be deleted. Therefore, when the Question is put, I shall oppose the inclusion of Clause 1.
Lord Simon of Glaisdale: I said in the last Session that I supported the noble Lord on his similar Bill. I came down to support him this evening only to find him moving a wrecking amendment to his Bill. I think in those circumstances I have to remain mute though, I assure him, not out of malice.
Clause 1 disagreed to.
Clause 2 [Publication of statistics about allotment gardens]:
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Wallace of Coslany: The words are the same. I have already explained the reason. I oppose the inclusion of this clause.
Clause 2 disagreed to.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 1:
After Clause 2, insert the following new clause:
("Access to records of statutory and temporary allotment gardens.
—(1) The council of a district, parish, community or London Borough shall afford to organisations representing allotment garden interests in their area sufficient access to their records to facilitate the preparation of an annual statement of the number and area of statutory and temporary allotment gardens provided under the Allotments Acts 1908–50, of the numbers which are occupied and of the number of persons who have applied for an allotment garden.
(2) In this section the expression "statutory allotment gardens" means land purchased or acquired under section 8 of the Allotments Act 1925.").
The noble Lord said: I beg to move the new clause standing in my name. This clause in effect replaces Clauses 1 and 2 to which the Government, together with one local authority association have objected. I may add that this association now approves the new clause and the Bill as amended by these adjustments. Subsection (1) of the clause now places responsibility on allotment garden associations to obtain and record information about allotment gardens in their respective areas without involving local authorities in additional statistical work. In most areas there is a close association between responsible allotment associations and their local authorities. This subsection will encourage still closer association and lead to co-operation in the letting of vacant plots, which no allotment tenant likes to have around him and which encourage weeds and pests, or where, there is little demand on the site, lead to closure or unnecessary transfer of a few plots to another site. On the other hand, evidence of great demand in an area with no vacancies could lead to negotiations for the provision of a new site.
Subsection (2) is very important as it defines "statutory allotment gardens". At the moment, according to the evidence of a letter from the Department of the Environment to the London Borough of Ealing, statutory allotments are not legally defined. But the letter goes on to refer the council to Section 8 of the Allotments Act 1925, which is generally interpreted to mean that if the council originally purchased or acquired the land for use as allotments, it must thereafter be considered to be a statutory site. I referred to this point at Second Reading but, for various unfortunate reasons, without previously notifying the noble Lord, Lord Skelmersdale, to whom I have already given a copy of that letter. I hope that this new clause, and particularly subsection (2), will be acceptable and helpful to the Government.
In deleting Clauses 1 and 2 and tabling this new clause I have tried to be reasonable and to extend co-operation to the Government. This is the very essence of this Bill. I cannot, of course, discuss the whole Bill at this stage. That will have to wait until a subsequent stage. But it is in a spirit of co-operation, and bearing in mind the helpful advice received indirectly from the Government, that I beg to move.
Lord Skelmersdale: I have listened with interest to what the noble Lord, Lord Wallace, has said. I observe that he has again taken careful note of what I said at Second Reading. I thank him for that. He must appreciate, however, that he is placing both the Government, and, perhaps, more importantly, the Committee, at considerable difficulty by the withdrawal of Clauses 1 and 2 of the Bill to which he spoke at Second Reading. When this new clause is passed, as I am sure it will be, the noble Lord will have a Bill which is more than slightly different from the one that he presented. So I appreciate the dilemma of the noble and learned Lord, Lord Simon of Glaisdale.
The noble Lord, Lord Wallace, referred briefly to this new clause at Second Reading and said:
"I would suggest that when we get to the Committee stage this amendment will be of great importance because the point is that you have to define a statutory allotment because a statutory allotment must not be cleared and used for another purpose without the consent of the Minister. The problem up to now has been: what is a statutory allotment?"—[Official Report, 3/12/84; col. 1130.]
While I accept that the word "statutory" is not defined in legislation, I raise again the questions of evidence to support contention. Nothing I have seen in any way leads me to believe, as the amendment of the noble Lord, Lord Wallace, appears to imply, that local authorities, where they need to do so for the purposes of disposal of allotment land, have any difficulty in determining which of their allotment land is "statutory" land or, as a consequence of this, are failing to obtain the consent of the Secretary of State when disposing of such land, as required by Section 8 of the Allotments Act 1925.
The Departmental Committee of Inquiry into Allotments—the so-called Thorpe Committee—stated in paragraph 61 of their 1969 report (and here I quote):
"The following definitions of allotment land—although not included in the legislation—became widely accepted: (i) land of which the freehold was vested in the allotments authority, and which had either been originally purchased for allotments or had
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subsequently been appropriated to allotment use, became known as statutory allotment land; (ii) land which was either rented by the allotments authority on lease or tenancy, or, being owned by the authority, was destined ultimately for some other use, became known as temporary allotment land".
It also defined a third category—private allotment land—which does not concern us this evening.
I have on a number of occasions during the passage of the noble Lord's Bills made it clear that the Government's aim is to reduce the burdens on local authorities, not to increase them. The noble Lord, Lord Wallace, will therefore understand that in the terms of this amendment, under which local authorities would be obliged to:
"afford to organisations representing allotment garden interests in their area sufficient access to their records to facilitate the preparation of an annual statement",
I still stand by that, although I understand what the noble Lord said in introducing this new clause to the Committee.
The new clause is also unclear as to whether the allotment societies or the local authority are to prepare the annual statement, although I understand from what the noble Lord has said this afternoon that he is quite clear in his own mind that it is the allotment societies who are to prepare the report. I must say that in this the noble Lord has made a small step in the right direction. Nonetheless, local authority man hours would still be needed to make these records into an acceptable and understandable form. I am prepared to accept that it would be a nice thing to do, in theory, but my central point on Second Reading remains the same: what proof has the noble Lord that such a report is necessary at all? I cannot countenance legislation unless I know that there is an evil to be righted.
Baroness Nicol: I should like to take up one point that the Minister has made. We support my noble friend's Bill and would like to see it go through. The local authority time involved here, surely, is very small. I do not agree that there is any doubt about who is to prepare the annual report. It seems clear to me from the Bill that it is the allotment societies themselves. In most local authorities, the kind of information that would be required is easily available. It is simply a question of allowing access to the records which are clearly kept by most competent local authorities. Therefore, I think that the objection raised by the noble Lord the Minister is not very useful.
7 p.m.
Lord Wallace of Coslany: I am somewhat surprised at the noble Lord, Lord Skelmersdale. I am getting the impression that Private Members' Bills are not liked by government departments. We are presuming to do something that they would like to do but never get down to doing. The noble Lord, Lord Skelmersdale, quite rightly quoted the Thorpe Report. One of the reasons for this Bill, which has a lot of good points, in spite of what the noble Lord says, is that the Thorpe Report has never been implemented. I tried when my own party was in power to get the Thorpe Report implemented, and the noble Baroness then replying for the Government said that at some time that might be done; but it has never been done.

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As to formulating what a statutory allotment is, when a government department gets a letter, a request for the schedule, from a very important and large London borough asking which are statutory allotments and which are not, the department cannot tell them and apologises because there is no legal definition, but it advises them that if they search out those allotments acquired and purchased under Section 8 of the 1925 Act they can be held to be statutory allotments.
Hang it all, here am I extending a helping hand to the Government which will save many local authorities sending in letters of inquiry for schedules, wasting the time of civil servants. This is reducing the burden on local authorities, and I am completely astonished at the reaction to the DIY (if I may so put it) effort of local allotment associations, most of which are of great repute and most of which are already involved in a close degree of co-operation with their local authorities, anyway. There is not the slightest difficulty whatever in obtaining the information they want, but the difference now is that instead of council officials preparing the figures, the allotment association does it itself.
Allotment records are accessible. It is not as if we were dealing with some state defence document of high secrecy. I have had local government experience. I have been chairman of a parks and cemeteries committee which deals with allotments, and these statistics are supplied from time to time. But I am not asking the local authorities to do it now. In order to meet the Government's wishes, the local associations, if they so wish, can go to the council and obtain the necessary figures they want.
That is all there is to it. I have never heard such a load of waffle on the part of the Government in trying to dodge a simple issue. Therefore, as I said at the beginning, I am convinced that if you promote a Private Bill, then all the departments get jealous of you and you have not got a chance. I beg to move.
On Question, amendment agreed to.
Remaining clauses and schedules agreed to.
House resumed: Bill reported with the amendments.
House adjourned at five minutes past seven o'clock.