HL Deb 24 January 1985 vol 459 cc386-406

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 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 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 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.

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: 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 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, 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 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 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 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 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.

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 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 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 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 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, 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 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.
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.
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.