Lords Sitting of 24 March 1986

Preamble
The House met at half-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark): The LORD CHANCELLOR on the Woolsack.

European Parliament: Election System
Lord Banks: 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 can confirm that they are pressing for the adoption of a uniform system of election to the European Parliament in time for the 1989 election, and whether they will report on the progress made towards this end.
The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur): My Lords, the initiative rests with the European Parliament, which is required to submit proposals to the Council of Ministers. I understand that the Political Affairs Committee of the Parliament has prepared a report containing proposals for uniform elections, but these have not yet been considered by the Parliament.
Lord Banks: My Lords, I thank the noble Lord for that reply. May I ask him whether he is aware that we on these Benches regard the early introduction of a uniform system as essential? Do the Government accept that in order to secure agreement the uniform system must be proportional? By what date has legislation to pass through this Parliament in order that a uniform system may be operative for the 1989 election?
Lord Glenarthur: My Lords, I am well aware of the interest of the noble Lord and his party in this matter. We hope that agreement can be reached, but it is not for us to take any initiative while the matter is still with the European Parliament for it to make its proposals. We shall become actively involved if proposals are put by the Parliament to the Council of Ministers. So far as dates are concerned, we estimate that agreement would have to be reached in time for the necessary legislation to be introduced in the 1987–88 Session of Parliament in order to have the effect the noble Lord would like.
Lord Bottomley: My Lords, does the Minister agree that the government and the alternate government is the best system for this country? It has served our country for generations past and it assures security and peace.
Lord Glenarthur: My Lords, I very much agree with the noble Lord, as no doubt he would expect. I am sure that my noble friend Lord Boyd-Carpenter would also agree, since I believe I heard assenting noises from my right.
Lord Boyd-Carpenter: My Lords, will not the Government view favourably a uniform system of elections to the European Parliament, provided that system were one of the first past the post?
Lord Glenarthur: Yes, my Lords, particularly if it gets universal agreement.
Baroness White: My Lords, does the noble Lord recognise that there is not universal agreement even on his own Benches? The European Parliament is different in character from the type of Parliament we enjoy in this country. It might more properly be called a European Assembly. Considerations are very different, as has been mentioned in this House on previous occasions.
Lord Glenarthur: Yes, my Lords, I am aware of the fact that there are differences of view on this side of the House as well. I am also aware of the fact that European elections are somewhat different. What I think is essential is that there is uniform agreement in Europe for the adoption of any proposals.

Winter Heating Costs: Assistance
2.33 p.m.
Lord Mellish: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how they propose to assist old-age pensioners with the high cost of heating during the recent prolonged cold spell.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, the main help with heating costs is through the supplementary benefit scale rates and weekly heating additions. Most householders in receipt of supplementary pensions who are over the age of 65 are entitled to a basic weekly heating addition, or a higher rate addition if they are over 85 or severely disabled. In addition, supplementary benefit claimants may, subject to the normal rules governing single payments, be eligible for a single payment to cover extra fuel costs arising from the recent exceptionally severe weather.
Lord Mellish: My Lords, I am obliged to the noble Baroness. May I put a case to her so that she can give me an answer? I have been approached by an elderly lady of 83 who has just received her gas bill from Segas for this dreadful winter we have gone through. If I may quote from it, she has consumed gas to the amount of £142.10, with a standing charge of £9.90. Her husband died 10 years ago and left her with about £700. She is unable to claim supplementary benefit. Will the noble Baroness be good enough to tell me what I am supposed to say to her? She is in great distress and does not know what to do.
Baroness Trumpington: My Lords, we are very concerned about old people. Not all claimants automatically qualify for this help when a period of

1153
exceptionally severe weather has been declared. For example, those who pay a fixed heating charge with their rent and those who have sufficient savings in excess of £500 to pay for the extra fuel used do not qualify. Other claimants may find that their quarterly bill, which may have covered a mild spell as well as a very cold spell, is no higher than they had budgeted for. The system last year worked on the basis of the weather over the whole period of the bill and not just over the severe spell. With regard to the bill for £9 odd, that is a matter for British Gas.
Lord Mellish: My Lords, I apologise to the House for coming in again so quickly. With respect to the noble Baroness, that is not good enough. I cannot repeat to an old lady of 83 who has only the income I have described the jargon I have just heard. She went to the DHSS and was told that she had more capital than was required: that is, more than £500. Also, is it not an absolute impertinence on the part of Segas or anybody else to throw a standing charge of £9.90 at old people like that, with no question of a rebate or other consideration? What in heaven's name am I supposed to say to her?
Baroness Trumpington: My Lords, I have already answered the point about having more than £500 in savings, and I have suggested that the noble Lord should contact British Gas about the bill.
Lord Molloy: My Lords, is the noble Baroness aware that it is very grim to have to say in this House that during the winter hundreds of our older citizens have died from hypothermia and there does not seem to be much evidence that the Government are doing a great deal about it? Does the noble Baroness agree that one cause of these deaths has been the type of heating some of these old people have, and particularly those who live alone, because it is totally insufficient? Would it not be an idea for local authorities to know when old people are living alone so that during such extremely inclement weather they can he visited? Should not that be compulsory on their social services?
Baroness Trumpington: My Lords, I think that good neighbours can do a great deal to help. We are very concerned about hypothermia and are investigating the increase in references to it on death certificates last year. In the meantime, we have done much to help those most at risk by the extra money which has been put into heating additions. We now spend £140 million more in real terms on heating additions than in 1979, when the Government took office.
Baroness Faithfull: My Lords, will the Minister agree that in answer to the noble Lord, Lord Mellish, the social services department should be asked to call on the old lady and consult with her on how best she can be helped either through social services or through supplementary benefit? I have dealt with many such cases.
Baroness Trumpington: My Lords, I am most grateful to my noble friend Lady Faithfull.
Baroness Jeger: My Lords, does the Minister not accept that this arithmetical competition in compassion keeps nobody warm and is most offensive to many old people and to many Members on both sides of this House? Can the Minister try to take this question a little further? Why not, for instance, add heating allowances automatically for people on supplementary benefit in the winter? Why do we have to have this argument about how cold the cold weather is? We all know that heating costs more in the winter than in the summer. I should have thought there would have been a great saving in administration if there was an automatic increase in heating allowances in the winter rather than to have a flat sum all the year round.
Secondly, may I ask the noble Baroness whether she will consult her friends in the Government, particularly in this energy year, about getting more repairs and insulation work done so that we are not wasting so much money trying to keep warm? Will she also consult with them about lowering the costs of gas and electricity, which are being kept by this Government artificially high, especially as the price of oil is going down?
Baroness Trumpington: My Lords, with regard to the latter part of the noble Baroness's supplementary question, I can do no better than quote my honourable friend the Minister of State for Social Security when he said during a recent interview:
"If we are going to change to a single payment as we have suggested we would in 1988, we shall need to make sure that there is some effective alternative to ensure the future of these schemes, but that is what we are determined to do".
Lord Paget of Northampton: My Lords, my noble friend who asked the original Question asked the noble Baroness what he should tell his old constituent. She has not answered him. Should he tell his old constituent that her lamentable condition is her fault or the Government's? It is one or the other.
Baroness Trumpington: My Lords, I have stated the case. My noble friend Lady Faithfull has made a most helpful suggestion. Following that, I am unable to suggest to any noble Lord what he should tell a friend of his in a private conversation.
Lord Avebury: My Lords, were there not incomprehensible difficulties between the payments made in one part of the country and those in another in the recent cold spell? How will the local authorities' social services departments be able to explain to an old person that she is not receiving additional heating allowance when somebody in the neighbouring borough is? Will the noble Baroness and the Government seriously consider whether the additional heating allowance should be made universal to all old people during spells of cold weather such as were experienced in February?
Baroness Trumpington: My Lords, the system which operated last year and which was based on data collected from weather stations was declared invalid by the social security commissioners. The chief adjudication officer has subsequently issued revised guidance. It is a regulated system, and Ministers cannot intervene in individual decisions.
Lord Glenamara: My Lords, can the noble Baroness tell us why it took so long in most areas to declare a period of exceptional weather when, during February, the whole country was in the grip of the coldest month for many, many years?
Baroness Trumpington: My Lords, this is a matter for the adjudication officers in DHSS local offices.
Lord Ennals: My Lords, can the noble Baroness say just what ministerial discretion there is? Is she aware that there were hospitals up and down the country that had to declare a red alert? They were unable to take in any other patients because of the patients who were admitted suffering from hypothermia or low blood temperature. She referred to exceptionally severe weather. Is there not some discretion by which the Minister can determine that these are exceptional circumstances, requiring exceptional action to save exceptional people, rather than the decision being taken after the crisis is over?
Baroness Trumpington: My Lords, the Government believe that the proposed system of premium payments which gives extra help to pensioners, the sick and the disabled, in particular, is the most effective means of getting help to those most in need.
Lord Mellish: My Lords, I apologise to the House for intervening again. May I clear up an anomaly? I am obliged to the noble Baroness, Lady Faithfull, who intervened. The DHSS has called and the people were kind and decent, but the fact is that the old lady does have over £500. She has actually about £800 which her husband left her when he died and which she has carefully conserved. She has no income other than the old-age pension. The DHSS said with the deepest regret that there was nothing that it could do. I am simply saying that I do not know where to go from here. She will pay the bill out of the £500, or whatever it is, that she has left. All I am saying is that the DHSS people have already been.
Baroness Trumpington: My Lords, the main help with heating is in the weekly scale rates. They have increased by more than 6 per cent. in real terms since 1978. We have also increased both the availability and value of heating additions. They are now worth £140 million more in real terms than in 1979. In particular, we have extended automatic entitlement to heating additions to those who are most likely to need extra warmth—the elderly, the chronically sick and disabled and families with young children. I am afraid that I have no more to offer them.
Baroness Jeger: My Lords, I apologise for coming back again, but I do not think that the noble Baroness has explained to the House why the heating allowance is the same in a hot summer as it is in a cold winter.
Baroness Trumpington: My Lords, because the heating allowance is covered by the weekly figures that people receive, and savings should be made over the whole year to cover the cold periods.

Queen's Birthday: Commemorative Stamps
2.45 p.m.
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 the special issue of stamps to mark the Queen's 60th birthday on 21st April will include stamps at 12p and if not whether they will recommend to the chairman of the Post Office that such inclusion be given consideration.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, special stamp issues are a matter for the Post Office and I understand that the chairman of the board has recently corresponded with the noble Baroness about this matter.
Baroness Burton of Coventry: My Lords, yes, I have had a long, courteous, detailed and entirely negative letter from the chairman of the Post Office. As the Minister has not answered the Question on the Order Paper, which asks whether Her Majesty's Government would take certain action, perhaps I may ask the Minister this question. As we have a Christmas issue of second class stamps, because so many people want a special stamp, does he not think that many people would equally like a special stamp for the Queen's 60th birthday anniversary? Does he feel that the attention of the chairman of the Post Office could be drawn to that?
Lord Lucas of Chilworth: My Lords, most certainly the attention of the chairman of the Post Office Board will be drawn to the noble Baroness's question. For some years it has been the practice of the Post Office Board to produce only four stamps as a special issue. They range across the main price usages: 17p for the inland first class stamp, 22p for the European stamp, a 31p airmail stamp for Zone B (the Americas, India and South East Asia), and a 34p airmail stamp for Zone C (Australia, Japan and China). The Christmas edition has always been a particular one because the volume of second class mail increases quite significantly at that time,
Baroness Burton of Coventry: My Lords, does the Minister agree that we cannot always dwell in the past on this matter any more than on the first Question that was asked this afternoon? Does he not think that some attention should be given to people who use second class stamps instead of always giving it only for those who use first class stamps?
Lord Lucas of Chilworth: My Lords, in particular, there are design implications for the special issue celebrating Her Majesty's birthday in that the stamp is based on six photographs of Her Majesty—one from each decade of her life. It is an essential part of the design that the stamps are produced in attached se tenant pairs. That design would be upset were there to be an additional stamp. The usage of first class and second class mail is currently about the same so that there will be relatively no disadvantage.

Engineering Design: Training Courses
2.49 p.m.
Lord Rodney: 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 which universities and technical colleges have full-time courses for training mechanical design engineers.
Baroness Hooper: My Lords, courses in engineering design, including courses with a design element, are listed in a booklet called Design Courses in Britain 1986 published by the Design Council. A copy has been placed in the Library. This lists some 48 degree level courses, of which 16 link mechanical engineering with design.
Lord Rodney: My Lords, I should like to thank my noble friend for that Answer. She was kind enough to send me a copy of the booklet. I do not think that it in fact totally records the true situation. May I ask my noble friend whether Her Majesty's Government are aware that there are very few engineering professors who are directly responsible for the teaching and research of engineering design? Are they further aware that at the present time there are vacancies for professors and senior lecturers in engineering design which cannot be filled?
Baroness Hooper: My Lords, I can only say that as a result of this Question my right honourable friend the Secretary of State will be more aware of the problem. My noble friend has rendered a valuable service in drawing attention to the dearth of suitably qualified people in this field. It is vital that industry should co-operate with educational institutions and make clear their needs, and this is one of the objectives of Industry Year.
Baroness Seear: My Lords, does the noble Baroness agree that there will be even more vacancies if the present cuts continue in the universities and polytechnics?
Baroness Hooper: My Lords, in fact the Government have already taken several measures to provide substantial additional resources for engineering, most recently the £43 million to be spent on the engineering and technology programme.

Influenza Vaccine: Business Statement
Lord Ennals: My Lords, if that is the end of Starred Questions, may I ask the noble Viscount the Leader of the House whether he has had any indication of the intention of the Minister from the Department of Health and Social Services to make clear the Government's policy on 'flu vaccine? He will no doubt recall that on Thursday there was an exchange in this House, in which my noble friend Lord Cledwyn of Penrhos and I were involved, when the noble Baroness made a statement which was strongly critical of her own department's policy on 'flu vaccine.
Noble Lords: Order!
Lord Ennals: My Lords, my noble friend asked whether a Statement could be made, and I am asking the Leader of the House whether there is the intention that the Statement should be made—
Noble Lords: Order!
Lord Ennals: My Lords, what is out of order about that?
The Lord President of the Council (Viscount Whitelaw): My Lords, perhaps I should say that I understood that my noble friend said that if there was any necessity for such a Statement after the exchanges last week she would consider making one. She has not told me that she is going to do so. Since the noble Lord asks, I will of course look into the matter further.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Glenarthur will, with the leave of the House, repeat a Statement that is to be made in another place on Evelyn Glenholmes.

Drug Trafficking Offences Bill
2.52 p.m.
Lord Glenarthur: My Lords, I beg to move that the House do resolve itself into Committee on this Bill.
Moved, That the House do resolve itself into Committee.—(Lord Glenarthur.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Confiscation orders]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 1:
Page 2, line 2, leave out from ("trafficking") to end of line 3.
The noble Lord said: I beg to move Amendment No. 1, and it may be convenient to discuss at the same time Amendments Nos. 2 and 39. No point of substance is raised by these amendments, which are intended to clarify the Bill. At present Clauses 1 and 2, in defining what is meant by the terms "has benefited from drug trafficking" and "the proceeds of drug trafficking", provide that payments made partly in connection with drug trafficking and partly in some other connection are to be regarded as payments for drug trafficking. This is important, because it is not uncommon for traffickers to operate through apparently legitimate concerns and, for example, to deliver a consignment of drugs hidden among quite innocuous goods. It would be wrong to allow them to escape full liability by claiming that the payment they had received was primarily for the routine cargo. These proposed amendments delete the specific provisions to this effect in Clauses 1 and 2 and insert a general interpretation provision in Clause 28. I beg to move.
Lord Mishcon: It seems a most sensible amendment.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Assessing the proceeds of drug trafficking]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 2:
Page 3, line 8, leave out from ("are") to end of line 10 and insert ("his proceeds of drug trafficking").
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 3:
Page 3, line 12, leave out ("the proceeds of drug trafficking by him") and insert ("his proceeds of drug trafficking").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 4 to 14, 17, 18, 20 and 21, and 35, 36 and 37. This is a lengthy list of amendments, but I hope I need not take long in explaining their purpose. We want to ensure that what is viewed as the defendant's proceeds from drug trafficking will be consistent throughout the Bill. Clause 2(1)(a) makes it clear that "the proceeds of drug trafficking" by the defendant includes both money made from his own trafficking activities and any payments he has received in connection with trafficking by others.
The phrase "the proceeds of drug trafficking by the defendant" (or "by him") appears in a good many other places in the Bill, and we feel that there may be a risk that, in some circumstances, it might inadvertently be taken to mean only the proceeds of the defendant's own trafficking activities. A change of label is desirable to reflect more clearly the broader nature of what is intended; that is, to differentiate between the proceeds of drug trafficking and the notion of trafficking conducted by a person. I beg to move.
Lord Mishcon: The same observation applies as applied to the previous amendment. This is a very sensible series of amendments.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 4:
Page 3, line 19, leave out ("the proceeds of drug trafficking by him") and insert ("his proceeds of drug trafficking").
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 5 to 7:
Page 4, line 3, leave out ("the proceeds of drug trafficking by the defendant") and insert ("the defendant's proceeds of drug trafficking").
Page 4, line 8, leave out ("the proceeds of drug trafficking by the defendant") and insert ("the defendant's proceeds of drug trafficking").
Page 4, line 11, leave out ("proceeds of drug trafficking by him") and insert ("of his proceeds of drug trafficking").
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Statements relating to drug trafficking]:
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 8 to 10:
Page 4, line 19, leave out ("the proceeds of drug trafficking by him") and insert ("his proceeds of drug trafficking").
1160
Page 4, line 41, leave out ("is the proceeds of drug trafficking by him") and insert ("was received by him in connection with drug trafficking carried on by him or another").
Page 5, line 17, leave out ("is the proceeds of drug trafficking by him") and insert ("was received by him in connection with drug trafficking carried on by him or another").
On Question, amendments agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Amount to be recovered under confiscation order]:
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 11 and 12:
Page 5, leave out line 23 and insert ("the defendant's proceeds of drug trafficking").
Page 5, line 34, leave out ("the proceeds of drug trafficking by the defendant") and insert ("his proceeds of drug trafficking").
On Question, amendments agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Confiscation orders: definition of terms]:
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 13 and 14:
Page 6, line 7, leave out ("the proceeds of drug trafficking by him") and insert ("received by him in connection with drug trafficking carried on by him or another").
Page 6, leave out line 9 and insert ("property received by him in that connection").
On Question, amendments agreed to.
Clause 5, as amended, agreed to.
Clauses 6 to 11 agreed to.
Clause 12 [Application of proceeds of realisation and other sums]:
3 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 15:
Page 14, line 37, after ("may") insert ("after giving the defendant an opportunity of being heard").
The noble Lord said: I hoped that a formula I have used up to now—namely, that the amendment is a sensible one and should be agreed to by the Committee—was one which we would hear from the Minister in answer to my amendment.
The clause deals with the application of proceeds of realisation and other sums which, under the Bill, as the Committee will remember, come into the hands of the receiver. After the taking out of such moneys as are necessary for a confiscation order, the rest of the funds have to be distributed equitably and in accordance with an order of the High Court, to which the receiver will apply. It does not say in the Bill that, after the moneys are taken from the confiscation order, the rest (which presumably are moneys that are not in any way affected by the iniquity of drugs) has to be distributed. It does not say that the defendant has any right of audience before the High Court judge in order to make submission as to the way in which those funds should be distributed. The sole purpose of this amendment is to give him that fair right.
Lord Glenarthur: I am grateful to the noble Lord for that explanation of the reasons behind his amendment. I fear that he is going to be a little

1161
disappointed in that I am going to try to adduce one or two reasons why I cannot follow the form of words which he used in relation to the other amendments.
I cannot agree with the noble Lord that the offender should be put in a special position at this point in the proceedings. That would be the effect of his amendment. The Bill recognises in Clause 11(8) that any person holding an interest in property which is liable to confiscation, whether the defendant or a third party, must be given a reasonable opportunity to make representations to the High Court before that property can be realised. Thus, a third party might argue that property in his hands should not have been included in the confiscation order because he gave full value for it; and the defendant might ask that, say, his shares should be realised rather than his house. It is right and proper that such representations should be made at that stage, before realisation begins. But we are here dealing with how any money left in the hands of a receiver after the confiscation order has been satisfied should be distributed.
In practice, the only cases in which distribution will arise are those where property has been taken not only from the defendant but from third parties as well. They, too, would no doubt have views on how surplus cash should be allocated. I should not favour the defendant being given an opportunity to indicate his preferences among them, which may have little to do with questions of justice, let alone to argue that his claims were greater than theirs. Nor would there seem to be much practical value in allowing all the possible claimants to come forward and argue why they should be given priority. All would simply seek the best possible deal for themselves, or could well do so. Such matters are, I believe, better left to the discretion of the High Court, taking account of all the circumstances of the case.
I hope that the noble Lord will see the force of that argument, and, in the light of the fact that Clause 11(8) has the effect it does on matters arising before the actual property can be realised, will see fit to withdraw his amendment.
Lord Mishcon: I would want to react graciously to anything that the noble Lord the Minister said in regard to a Bill for which, as everybody knows, there is wholehearted support in every quarter of the Committee, but I must confess that I do not understand his argument. If it is my fault, I shall apologise to him.
The noble Lord invokes in aid of his argument that there should be no representation open to a defendant in these cases the fact that there is a previous clause which gives the right of representation of any arguments before a High Court judge prior to realisation. There are two stages: first, the stage of whether you are allowed to realise, and, if so, the way in which you do it; and, after realisation, there are the proceeds of realisation. Therefore the previous clause has nothing to do with the submission I endeavoured to make in regard to this amendment. Realisation has taken place, and the right of audience therefore ceases under the previous clause. What we are dealing with here is what happens with the proceeds of realisation.
1162
I should quite understand it if the noble Lord were to say: "Before the confiscation order has been sufficiently dealt with there should be no right to make submissions at all; the realisation has taken place, the confiscation order has to be effective and the proceeds will obviously be the source from which the confiscation moneys are to be taken". We are now dealing with what is left of what is the defendant's money, one would have assumed prima facie, and how it is to be distributed. I should not have objected if the noble Lord were to say that he wanted to extend the range of representation to those who might claim any interest in exactly the same way as one gets it with stolen property, often with various claimants being allowed to be heard by the court before anything is done by way of order as to where that property goes. I should not have objected if he extended the right of audience and the right of representation. But to say that the High Court is to do that without any guidance whatsoever from the person to whom, prima facie, these moneys belong, and without the defendant being given a right to appear before the High Court judge, is an absolute negation of justice.
One assumes that after the confiscation order has been sufficiently dealt with, the rest of the money belongs to somebody else—it may be the accused; it may be somebody else—but how can the High Court decide this without there being the right of representation to a High Court judge? After all, the person whose money it appears to be ought certainly to be heard. I am afraid that I cannot understand the Minister's reply. If he will show me where I have gone wrong on this argument, I shall be delighted to consider what he has to say, but at the moment I press the point.
Lord Wigoder: Perhaps I may intervene to say that, having listened to the discussion on this amendment with an open mind, and having heard the contributions so far, I come down very much in favour of what has been said by the noble Lord, Lord Mishcon. I rather anticipated that the Minister might have attempted to put forward the suggestion and argument that the amendment was unnecessary because the High Court judge would, as a matter of elementary justice, ask that the defendant should be represented so that he can hear what had to be said. But the Minister has not said that at all. He has come down against giving the defendant a right to make representations over what seems to me to be an important stage in the disposal of what, prima facie, belongs to the defendant himself. I would therefore respectfully support what the noble Lord, Lord Mishcon, has said in urging this amendment upon the Government.
Lord Denning: I, too, have heard all that has been said. I think that the Minister has given a sufficient answer. If I may say so, I think that what my noble friend Lord Wigoder has said is the complete answer. If the judge of the High Court thinks it is necessary or desirable in the interests of justice to hear the defendant, he will certainly arrange accordingly. That is the answer which my noble friend Lord Wigoder suggested. I think it is a sufficient answer, and for myself I would not support the amendment.
Lord Edmund-Davies: I am unable to agree with the noble and learned Lord who has just spoken. The previous clause concluded with the words:
"has been given for persons holding any interest in the property to make representations to the court".
That, I realise, is in relation to the making of an order for the realisation. But the property which is realised might, for example, be a lease. It has to be realised to make up the necessary funds, but it may be that after satisfaction has been obtained there are surplus proceeds in relation to which the defendant and other persons might have an interest. Those parties ought to be heard.
I would have thought that the amendment proposed by the noble Lord, Lord Mishcon, ought to be extended by the adoption of some such formula as that which concludes the preceding clause. That one should rely upon the learned judge doing something that the statute does not find it necessary to include is to expect too much. It ought to be there.
Lord Glenarthur: I have listened with care to what has been said and I have noted the dissenting opinions of the two noble and learned Lords on the Cross-Benches on this issue. The noble and learned Lord, Lord Denning, picked up the point that I made at the end of my initial remarks, that this is very much a matter for the discretion of the High Court, taking into account the circumstances of any case. I would have thought that that could cover the point made by the noble and learned Lord, Lord Edmund-Davies; I would have thought that it could do so, but I cannot be absolutely certain without verifying the fact. Nevertheless, it is an important point.
My other point is that as well as the defendant in this case, there are possible third parties as well to be taken into account. The amendment of the noble Lord, Lord Mishcon, does not take them into account in any case. It is possible that it might not be the defendant's money that we are talking about here: it might well be money that has been confiscated from third parties. I cannot accept that the defendant should have a special position. In fact, that is what he will have under the amendment—a special position; that the hearing should consider the case for all those involved.
The best thing that I can do, without making any commitment to the noble Lord, is this. When matters of this kind are raised, I realise that the remarks made should be studied very carefully. I should like, without making any commitment, to study the arguments that have been put forward and perhaps then correspond with the noble Lord or find some other way of taking the matter forward with him. I do not believe that I can offer any more today. If the noble Lord will be happy to go ahead on that basis, then I will be very grateful.
Lord Mishcon: As I have said, it is the wish of all parts of the Committee to be co-operative in regard to this Bill. The noble Lord the Minister says that—without any commitment, as he emphasises—he is prepared to consider the submissions that have been made. Will he take it for granted from me—and obviously this became apparent from the discussions that have taken place—that if he came forward with an amendment that allowed for the discretion of the court
1164
to be exercised but embodied in the statute, for any party who claimed to have an interest in the balance left over after the compensation order moneys have been paid, then of course I would not oppose any such amendment but would support it? I hope therefore that we may helpfully come forward with a sensible answer to this problem. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clauses 13 to 15 agreed to.
Clause 16 [Enforcement of orders in Scotland]:
3.15 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 16:
Page 17, line 27, after ("may") insert ("for the purposes set out in subsection (1) above").
The noble Lord said: I can deal with this amendment very briefly. It is more of a probing amendment—or if it is not, it is an amendment to try to ensure that we do not do something beyond that which we would want to do in Committee. Clause 16(2) says:
"An Order in Council under this section may amend or apply, with or without modifications, any enactment".
That is a very bold statement, and unless there is an explanation to the contrary that I have not seen it would appear to go beyond what one would want to do. One imagines that the purpose of subsection (2) is to have such an Order in Council that is capable of amending or applying, with or without modifications, any enactment for the purposes set out in subsection (1).
In case anyone should think that this amendment emanates from what little ingenuity I have, I may at once say that I received the amendment from that well-known organisation, Justice, which is very careful about such matters. I am indebted to that organisation for the amendment and it is only right that I should put its authorship where it properly belongs.
Lord Wigoder: I support this amendment. So far as I can see, it does not in any way change the sense of the existing Bill; it merely makes a statement that appears on the face of it to be a trifle bald and somewhat radical a little more moderate in its implications. I hope that the Minister will find a way to accept it.
Lord Glenarthur: I may tell both noble Lords that I can accept the amendment, but with one proviso. The noble Lord will remember that I mentioned on Second Reading that it was our intention to replace Clause 16 with new provisions that will specify in some detail the procedures by which the Bill will be enforced in Scotland.
I regret that I am not yet in a position to table the necessary amendments because they have proved technically to be rather complex due to the difficulties which are inherent in relating the two different legal systems to each other—that is, the Scottish and English legal systems. With your Lordships' permission, I shall be bringing forward the appropriate amendments on Report.

1165
Those amendments will provide for restraint orders made by the High Court in England and Wales to be recognised in Scotland and to be enforceable against assets held in Scotland following registration in the Court of Session. The powers of any receiver appointed under the Bill will also be recognised in Scotland, and Scottish police and customs officers will be given similar powers to those available to English and Welsh police under the Bill.
With that explanation of what is intended for the future, but in order to clarify matters as they stand at present, I believe the best thing to do is to accept the amendment.
Lord Mishcon: I am most grateful.
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Assisting another to retain the benefit of drug trafficking]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 17:
Page 17, line 40, leave out ("the proceeds of drug trafficking by A") and insert ("A's proceeds of drug trafficking").
The noble Lord said: I spoke to this amendment with Amendment No. 3. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 18:
Page 18, line 1, leave out ("the proceeds of drug trafficking by A") and insert ("A's proceeds of drug trafficking").
On Question, amendment agreed to.
Viscount Davidson Viscount Davidson moved Amendment No. 19:
Page 18, line 7, after ("trafficking") insert ("or has benefited from drug trafficking").
The noble Viscount said: In speaking to this amendment, it may be for the convenience of the Committee to discuss also Amendments Nos. 22, 23 and 24. This series of amendments offers what we believe to be some useful improvements to Clause 17, which contains the provisions relating to the new laundering offence. The first amendment follows on from the point my noble friend made earlier; that a person may benefit from drug trafficking either by money derived from his own trafficking activities or by payments received in connection with trafficking by someone else. We want to make clear that where it can be shown that a person—in the terms of the clause, we call him "A"—has received payments in connection with his, or another's trafficking, then anyone who knowingly assists him to retain the benefits of those payments is guilty of the new laundering offence. It will not be necessary to prove that "A" has himself dealt in drugs, although, where he has received payments in connection with another's trafficking there will inevitably be some degree of complicity in drug dealing.
The other amendments seek to redefine, and to distinguish more clearly from each other, the two defences provided to a laundering charge. The second amendment narrows the scope of the defence in Clause 17(3)(a) by requiring the defendant to show, not
1166
simply that he did not know or suspect that the money with which he was dealing was a particular person's drug trafficking proceeds, but that he did not know it was drug proceeds at all. It would be wrong if the launderer could escape conviction by saying that, while he did suspect that the money must have come from drug dealing, he did not know or suspect that it derived specifically from a named person's trafficking.
The third and fourth amendments confine the second offence contained in Clause 17(3)(b) more clearly to the nature of the arrangement the defendant has entered into. He will have to show that he did not know or suspect that its effect would be to assist the particular person named in the charge to retain property or to invest funds. The reference to proceeds is unnecessary here. Ignorance of the provenance of the money will be dealt with by the first defence. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 20 and 21:
Page 18, line 9, leave out ("the proceeds of drug trafficking by any person") and insert ("any person's proceeds of drug trafficking").
Page 18, line 11, leave out ("the proceeds of drug trafficking by him") and insert ("his proceeds of drug trafficking").
The noble Lord said: I spoke to these amendments earlier. I beg to move them together.
On Question, amendments agreed to.
Viscount Davidson Viscount Davidson moved Amendment Nos. 22 to 24:
Page 18, line 16, leave out ("the proceeds of drug trafficking by A") and insert ("any person's proceeds of drug trafficking").
Page 18, line 18, leave out ("those proceeds") and insert ("any property").
Page 18, line 20, leave out ("those proceeds were") and insert ("any property was").
The noble Viscount said: I spoke to these amendments with Amendment No. 19. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 17, as amended, agreed to.
Lord Denning Lord Denning moved Amendment No. 25:
After Clause 17, insert the following new clause:
("Powers and protection of financial institutions.
.—(1) If any bank or financial institution, or any other body, suspects that any proceeds of drug trafficking are or have been under its control or in passage through its banking or financial system, it may disclose the circumstances to the Chief Officer of police for the area, or to any constable in his stead, and may follow any directions which he may give.
(2) In disclosing information, or following the directions of the police, in accordance with subsection (1) above, any institution shall have statutory protection and shall not be liable to any person for breach of contract, confidence or duty in that respect.").
The noble and learned Lord said: This amendment is of more substance than we have hitherto discussed. Clause 17 deals with people who assist drug traffickers by laundering the money. Perhaps I should explain this Americanism, the word "launderers". It arises in this way. A drug trafficker obtains money in notes or otherwise and he wants to get rid of that money or keep it in hand as much as he can. He could take the notes in a suitcase to the hank, and bank them in his

1167
own name; but that would not suit his book, so he takes steps to conceal them.
For example, if he has his own business, such as a betting shop, which brings in proceeds, and he has a side business in drug trafficking, what does he do? He mixes the money together and pays it into the bank as though it is the proceeds of the genuine business. Who can then discover the money after that? Using that money through the genuine business he might buy a house in his wife's or lady friend's name; or he might buy a necklace, or anything like that. Who will then be able to track down those proceeds? If the man is modern enough he might order the bank to transfer the moneys to his numbered account in Switzerland.
There are no end of ways in which a drug trafficker can launder his dirty money and pass it through various channels, with concealment through various nominees, and so on, so that eventually the money appears to be clean. That is the launderer. The launderer and his assistants are now caught by Clause 17, which is a good, comprehensive clause that gets hold of all those who,
"by concealment, removal from the jurisdiction, transfer to nominees or otherwise"
conceal the proceeds of drug trafficking. They will be hit by Clause 17 unless they can prove, as stated in Clause 17, that they did not know or suspect that the money related to drug trafficking. That is very good as it stands.
But what about the bank handling these moneys? It may suspect that the moneys come from the proceeds of drug trafficking. The amounts may be so large that the bank thinks that they must come from drug trafficking; but what is it to do? I must tell your Lordships that the banks and financial institutions of this country are, by law, under a duty of confidence. They must not give notice to anyone of the state of their clients' accounts, the transactions passed through them, and whether or not an account is closed. There is an obligation of secrecy which was enunciated as long ago as 1924 by Lord Justice Atkin in the celebrated case of Tournier v. National Provincial Bank of England. In that case an employer suspected his servant of improperly handling money. He asked the hank manager about it. The bank manager said, "Oh, you need not worry about him. He is getting a lot of money from the bookmakers nowadays". The employee sued for damages for breach of confidence and succeeded because the bank manager had no right whatever to disclose his affairs to the employer.
The object of the new clause is to protect banks. If a bank manager suspects money has come from drug trafficking or anything of that kind, can he tell the police? He ought to be able to do so and to be protected. This is a new and recent problem which my noble friend Lord Harris of Greenwich has drawn to my attention. The Home Affairs Committee of the House of Commons reported last month, and in its first paragraph said,
"we have only one urgent, final recommendation to make. This relates to disposal or 'laundering' of drug money. We are greatly concerned at the apparent ease with which drug dealers are able to use the banking system to 'launder', that is to circulate and disguise the true origin of, drug money. It is a concern which is shared by the bankers themselves. We are satisfied that the banks are ready to co-operate fully with the authorities, provided that the law protects them from any legal action for disclosure of information which they
1168
believe to relate to drug money. We therefore recommend that the present law on the disclosure of confidential information by banks should be amended".
The report adds that in addition to the provisions which protect bankers,
"we recommend that there should be statutory protection for bankers who volunteer information to the authorities about their clients' finances when these seem to be connected with drug trafficking".
It is that recommendation which we seek to enact in the amendment. In the first part we say that if the bank "suspects" that any proceeds come from drug trafficking,
"it may disclose the circumstances to the Chief Officer of police… or to any constable… and may follow any directions which he may give".
The chief officer of police may say, "Hold that money", or he may say, "Let it go and see who it goes to". The bank may follow any directions which the chief officer of police may give. That is where the banks want protection.
Subsection (2) states:
"In disclosing information, or following the directions of the police… any institution shall have statutory protection and shall not be liable to any person for breach of contract, confidence or duty in that respect".
This is an attempt to carry out the very recent and modern recommendation of the Home Affairs Committee and I hope that the Government will accept it. I beg to move.
3.30 p.m.
Lord Lloyd of Kilgerran: Before the noble and learned Lord sits down, perhaps I may presume to ask him whether, when he emphasises the information that bankers have to produce in the circumstances which he has so clearly related, he is including in the generic term "bankers" the so-called bankers who are bankers of subsidiary organisations of Swiss banks? In other words, are the so-called Swiss bankers in London subject to this kind of compulsory disclosure? I ask purely from a state of ignorance.
Lord Denning: I was careful to say that this is voluntary disclosure. A later amendment may concern compulsory disclosure. We may come on later to the question of compulsory disclosure.
In this amendment I am dealing only with voluntary disclosure. If the banks voluntarily disclose the information, then they are protected. They are not in any breach of confidence in respect of the client. I hope that the Swiss banks here and all the banks will voluntarily disclose the information in order to enable us to get to the roots of drug trafficking. I hope that the Swiss banks will volunteer in the same way as our own banks.
Lord Lloyd of Kilgerran: I thank the noble and learned Lord for that reply.
Lord Boardman: I should like first of all to declare an interest as the chairman of one of the clearing banks which would be involved in the operation of this clause. At the same time perhaps I may say that I am quite sure that their objectives would be those of the noble and learned Lord, Lord Denning, in wishing to do whatever was practicable in tracing the laundering

1169
of drug money and stamping out that evil. The amendment of the noble and learned Lord amounts to the volunteering of suspicions. I should like to strike a cautionary note. I have said that banks would wish to co-operate in every way possible and, as the noble and learned Lord will know from the report of the Home Affairs Committee, they have said that they do not want "crooks on their books"—to use their rather catching phrase. The purpose of this clause, as the noble and learned Lord has said, is to enable the banks to volunteer their suspicions.
I wonder whether there is a danger of turning banking staff into amateur detectives. Very large sums of cash cross the banks' counters every day and there are something like 300 registered banks in this country plus hundreds of building societies and other financial institutions. Vast sums pass across the banking counters every day. The culture in this country is somewhat different from that in the United States of America where there are rather different provisions in this respect. In the United States of America cash is not a usual commodity. People operate very largely and to a much greater extent than we do with credit cards of one kind or another. In this country the amount of cash which passes across the counters of banks from operations in a whole field of activities, such as the retail trade, quite apart from the bookies, casinos and other such large handlers of cash, is very great indeed. Inevitably, some of that money will come from an illegitimate source, but it is almost impossible to know how much it is or how it can be traced. Some of it will no doubt be intended for the evasion of tax, but again it is impossible for banks to identify how much or to trace it. I suggest that it would be even more difficult to identify illegitimate cash from drug sources.
There must be a fear that, in putting pressure on people to volunteer information, they will be faced with this sort of dilemma. The too-persistent inquiries to a customer whom they believe may be involved in drug trafficking could put the staff of the bank at risk. On the other hand, insufficient inquiries before reporting a suspicion to the police could cause many innocent customers who are carrying on their normal business to be subjected to police investigation. That is a dilemma which I see arising from this new clause.
There is a very valuable provision in the Bill which enables banks to open their books under a judge's order. Where the police suspect that someone is trafficking in drugs and laundering the money, they can get a judge's order or warrant to compel the banks to open their books. I believe that this is a most valuable amendment which I am sure the financial institutions will welcome. But it is for the police to take the initiative. They are the people who are most likely to have suspicions and the opening of the books may enable them to produce the evidence.
The noble and learned Lord touched on the power under the Tournier decision to disclose information where there is a public duty. This could probably mean that where a banker was quite clear in his own mind that there had been illicit drug trafficking going on, he would probably be protected by Tournier—I bow to the noble and learned Lord on this matter, who
1170
has far greater experience than I—in disclosing those circumstances.
I am sure that all bankers and Members of the Committee support the objectives of the clause. However, I wonder whether it may be counter-productive. I believe that discussions are taking place on this subject, and it may be wise to await the outcome to see to what extent the fears which I personally have expressed might be justified before pressing the clause.
Lord Wheatley: I have had to deal with quite a number of people against whom this amendment is directed, and as I sit north of the Border, I normally would not wish to say or do anything which would differ from the opinions of the noble and learned Lord, Lord Denning, and his comments in connection with this proposed new clause.
However, there is one point which I feel I must raise. The test which the clause lays down is that the bank or financial institution "suspects". That is a purely subjective test, and accordingly I wonder whether it would be more proper if the clause were to read: "suspects or has reasonable ground for suspicion". That is a test which is applied under the Road Traffic Act in other circumstances. It seems to me that it is too absolute simply to say "suspects", because that would allow the banker who had no great degree of conscience merely to say, "Oh well, I thought there was something fishy about this", and that would be sufficient for the purpose; whereas, if the test is to have an element of objectivity it should include the words "and had reasonable ground for suspicion". I offer that suggestion to the noble and learned Lord to consider whether or not he is prepared so to modify the clause.
Lord Denning: I accept it at once.
Lord Edmund-Davies: I should like to support the suggestion that has just been made by the noble and learned Lord, Lord Wheatley, in relation to the addition to the word "suspects". Having said that, I should like to express my wholehearted acceptance of this eminently suitable and required clause. As the noble and learned Lord, Lord Denning, has said, it does not impose any compulsion of disclosure upon the bank. It leaves it to the bank's discretion.
I am worried about the suggestion that it should be contingent upon a judge's order being made because even the inquiring authorities, the police or other bodies, may not know at all about the existence of a certain account and therefore not knowing it there can be no judge's order in respect of it. This amendment enables a bank or the officials of a bank who hold an account which is run by a person whom they suspect has been involved in drug trafficking to offer voluntary disclosure to the responsible authorities. But the clause is a good one. I want to be identified with it and I thank the noble and learned Lord, Lord Denning, and the noble Lord, Lord Harris, for proposing it.
Lord Mishcon: It has been said previously and I think with very good reason, that the duty of Parliament in this dreadful era of drug trafficking is a heavy one. It has a duty to protect the public and to pursue the ringleaders of this iniquitous trade. As I

1171
have so repeatedly said, there is no division in any part of the Committee about that duty and that very proper endeavour. There is equally a duty to see to it that principles that are precious in our law are preserved, if at all possible, and that we do not create precedents that future Parliaments may quote in order to excuse an invasion into a right or a sacred principle of our law in circumstances which today we should not envisage. This in no way causes me to oppose the amendment. As the Committee will hear subsequently, if your Lordships are kind enough to hear me, it will lead me to oppose Amendment No. 30 which is a very different kettle of fish, if I may use that expression.
Having said that, let me utter a few words of most respectful warning. As this is a particularly exceptional case, is it proper that a constable should be allowed to be the recipient of this confidential information and for the bank to follow such directions as a constable may give in regard to the utilisation of the information which the bank thinks that it has? I should have thought that in such an exceptional case it ought to be a high-ranking police officer who is the recipient of this confidential information and certainly who is the giver of advice or directions.
Lord Denning: Let me say that I would accept that, too.
Lord Mishcon: I have never known the noble and learned Lord in such a receptive mood. He is prepared to accept almost anything in order to get this amendment through, and I admire him for that.
Having said that, let me come to a second word of warning which goes the other way round. The noble and learned Lord said at once that he would accept the amendment which in many ways was so wisely put forward by the noble and learned Lord, Lord Wheatley; namely, that suspicion should be covered by the words "has reasonable grounds to suspect". Before the noble and learned Lord, with his great wisdom on these matters, accepts that amendment, may I issue this caveat? The bank is excepted from the normal law of contract and confidentiality by this clause, but if one limits that exception to the bank having reasonable cause to suspect, as against bona fide suspecting, do you not then open the floodgates to litigation from people who will sue banks by saying, "You disclosed this information. No charge has been brought against me. Two years have elapsed. You had no right to do that, and I challenge your reasonable grounds for suspecting"?
That would not be an avenue, if I may mix my metaphors for a moment, that would be open to anyone if the clause stood as it does now; namely, "the bank suspected". Once you put that additional ingredient in of its having to have reasonable grounds for suspecting, I (if I may use the phrase) smell litigation of a kind that I do not think the noble and learned Lords, Lord Denning or Lord Wheatley, would want to encourage.
With those remarks which qualify the amendment, I accept the spirit of it.
3.45 p.m.
Lord Glenarthur: I am grateful to the noble and learned Lord, Lord Denning, for his explanation of the
1172
intention which lies behind his amendment. During the Second Reading of the Bill he referred to the vital importance of information held by banks about suspects' financial dealings, and the amendment in his name is very much in line with the recommendation put forward earlier this month by the Select Committee on Home Affairs in another place, to which my noble friend Lord Boardman referred.
The Government have undertaken to consider that recommendation and are at present consulting the banks about it. I very much hope that the noble and learned Lord will not press me to accept this amendment before those consultations are complete. I certainly share his concern that information that would be helpful to the police in investigating drug trafficking should be made available to them. So far, we have considered that any specific provision of this sort is unnecessary, given the view the Court of Appeal expressed in Tournier v. the National Provincial Bank of England, to which my noble friend Lord Boardman referred, that the banks' duty of confidentiality did not prevent them disclosing information in the public interest under existing law.
I have expressed sympathy with the noble and learned Lord so far as his amendment is concerned. It is clearly an important issue, and we want to consider it further, not just in the light of the view of my noble friend Lord Boardman and that of the Select Committee of another place, but also in the light of the suggestions which have been made by the noble and learned Lords, Lord Wheatley and Lord Edmund-Davies.
I hope that the noble and learned Lord, Lord Denning, will agree that consideration of all those aspects is important before we decide precisely what is to be done. Once that consultation has been completed, we would hope that we would decide where to go and that that would take place before the Report stage of this Bill.
Lord Harris of Greenwich: Let me just say a few words on that point, because the noble Lord, Lord Glenarthur, anticipated the question I was about to ask him. I am sure that my noble and learned ally, if I may so describe him, on this amendment would accept what the noble Lord, Lord Glenarthur, has just said, as long as, and clearly on the understanding that, we are able to come back to this issue either at Report stage or, if the discussions with the banks have not been completed by then, on Third Reading. I do not believe that at the moment this Bill deals adequately with the question of money laundering. I think many of our anxieties would be put at rest if either this amendment or something similar to it were written into the Bill.
I am sure the banks are anxious to co-operate, as the noble Lord, Lord Boardman, said a few moments ago, but we have to recognise the fact that, as the noble Lord, Lord Glenarthur, said when winding up the debate on Second Reading, money laundering is in reality at the heart of the issues that lie behind the drug trafficking problem in this country. Unless we get this right, future generations will blame us for not having dealt adequately with the issue at a time when we had the opportunity of doing so. If the noble Lord, Lord Glenarthur, comes forward at a later stage with a

1173
Government amendment which deals with this issue, I am sure the anxieties of many of us will be stilled. On that assumption, I suspect the noble and learned Lord, Lord Denning, will be content, for the time being at least.
Lord Shepherd: I had intended to ask the Minister what was the definition of "financial institutions" which is in the amendment that has been moved by the noble and learned Lord, Lord Denning. I entirely support the objectives of the noble and learned Lord in his amendment, but I agree very much with the noble Lord, Lord Harris, that the question of laundering is absolutely fundamental to the problem.
My experience—not personal experience, but my knowledge of laundering overseas, out in the Far East—is that a great deal of the laundering of, shall I say, illegal or illicit money is not so much done through the recognised banks as done through the money changers. I do not know whether money changers are a financial institution, as stated in the amendment. It seems to me, however, that if one is to achieve the real benefits of the amendment moved by the noble and learned Lord, Lord Denning, one has to look at the entire range of methods by which money is laundered. One of the first objectives of those having illicit money, it seems to me, is to move it into another currency. This can be done through a bank. But it is a good deal easier through a money changer.
This is a matter that needs to be examined not solely in terms of banks or financial institutions, if that is another phrase for banks. One has to look at the whole gamut of means by which currency can be moved. I hope that the Government, in giving thought to the proposal of the noble and learned Lord, Lord Denning, will look at the wider ramifications and difficulties and that they will examine laundering in real depth to see whether we can overcome the benefits that drug traffickers may receive through the laundering of money other than through recognised banks.
Lord Glenarthur: In reply to the noble Lord, Lord Harris, I can most certainly confirm that there is no question of not being able to come back to this matter at some future stage. The aims of the Bill, which have received universal praise in your Lordships' House, lead us against what the noble Lord, Lord Mishcon, has described as fairly fundamental principles of law, or words to that effect. So there is a difficult balance to be struck. There is no difficulty in taking on board the point made by the noble Lord, Lord Shepherd, about the wider means of moving currency around. I shall make sure that his remarks are taken into account.
Lord Mishcon: Would the noble Lord the Minister be kind enough to add to his points of consideration the two that I ventured to make about the reasonable grounds for suspicion and the rank of the officer concerned?
Lord Glenarthur: Certainly I can give that assurance in respect of reasonable grounds for suspicion. I thought that I had done so in answer to the point made by the noble and learned Lord, Lord Wheatley. As for rank, I shall certainly also consider that. I am sorry; I forgot to mention it.
Lord Denning: I should like to thank everyone who has contributed to the discussion. It seems to me to have been most valuable. I should also like to thank the noble Lord, Lord Glenarthur, for saying that the Government will consider the matter carefully. It needs consideration and careful drafting if all the points are to be dealt with. Offhand, I am not sure that "suspects" is not right. Equally, however, we have to bring in all those other chaps. Without a clause such as this, all this money will get away. The drug traffickers are clever enough to pass it through the banks and money changers and switch it abroad. One will never get hold of it without the co-operation of the banks and such like in voluntarily letting us know. In that way, the chief officer of police will be able to make his inquiries, very discreetly, if you please, without, of course, disclosing his source or anything of that kind. By this means, one would hope to prevent drug trafficking money going abroad.
As for the point made by the noble Lord, Lord Boardman, I recognise that if a bank knows and can prove that drug money is involved, there is no need for any provision in any statute. As in the case of Initial Services, we have heard that there is no breach of confidence involved in disclosure in respect of iniquity. If a bank knows that it is iniquitous drug dealing, it can disclose this as the law now stands without any fear. But that is not known in nearly every case: the bank merely suspects. It seems to me that as the law stands at the moment a bank must not disclose its suspicions. If it does, it is liable for breach of confidence or contract. So, please, let the banks disclose under the full protection of the law to the chief officer of police. I am grateful to the noble Lord the Minister for what he said, and I look forward to, perhaps, a Government amendment on Report. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Davidson: This may be a convenient moment for taking the Statement. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Miss Evelyn Glenholmes
3.55 p.m.
Lord Glenarthur: My Lords, with the leave of the House, I shall now repeat a Statement on Evelyn Glenholmes being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"Nine endorsed warrants for the return of Miss Glenholmes were first issued on 31st October 1984 and submitted to the Irish authorities for endorsement in accordance with the UK-Irish extradition legislation. The offences covered by the warrants related to various terrorist offences committed between 1981 and 1982, including murder, attempted murder, firearms and explosives offences. The original warrants were returned by the Irish authorities, who asked for some technical changes to

1175
be made to their wording. Fresh warrants were accordingly submitted on 6th November 1984, but by that time details of the extradition request had been disclosed in the press and Miss Glenholmes disappeared from view.
"She was subsequently arrested in Dublin on 12th March 1986, and the hearing of the extradition request opened in the District Court of Dublin last Wednesday on the basis of the warrants issued in November 1984.
"Throughout last week's court hearing, there was close co-operation between the Irish prosecuting authorities and officers from the Metropolitan Police and the Office of the Director of Public Prosecutions.
"On Saturday morning, having heard submissions from defence counsel that the extradition warrants were defective, the court discharged Miss Glenholmes. I understand that the principal consideration which underlay the court's decision was that, whereas the standard wording printed on the warrants referred to information on oath as having been laid on the day the warrants were issued (i.e. 6th November 1984), the court considered that the relevant information was that laid when the original warrants had been issued on 31st October 1984. I understand that the magistrate in London treated the further application on 6th November as having been made under oath adopting the information already laid but not resworn. The information required for both sets of warrants was identical, but was not sworn again on 6th November, which would have avoided the difficulty which later arose.
"Even before Miss Glenholmes was released, the United Kingdom authorities had made arrangements for the issue of a fresh warrant covering one of the charges of murder. On the basis of this fresh warrant, the Garda obtained a new provisional warrant for Miss Glenholmes' arrest. Once Miss Glenholmes had been re-arrrested, she was brought back to the District Court. I understand that Miss Glenholmes was then released, this time on the grounds that the court was not satisfied, in spite of a telephone call from New Scotland Yard to the Garda, that there was evidence that a fresh warrant had been issued in London that morning or that Miss Glenholmes had in effect been at liberty between her earlier release and her re-arrest.
"Following Miss Glenholmes' second release, the fresh warrant was sent to Dublin this morning. Earlier today, additional warrants were obtained covering the remaining eight charges and these will be sent to the authorities in Dublin later today.
"My right honourable and learned friend the Attorney-General and I have looked carefully at the information so far available to us. On the basis of that information it is clear that the extradition application failed because of a technical objection taken by the Dublin court. My right honourable and learned friend and I regret that this technical objection was not foreseen in time and fresh warrants obtained. We are considering urgently the need for a review of procedures and the handling of this sort of case. My right honourable and learned
1176
friend the Attorney-General has instructed the Directors of Public Prosecutions for England and Wales, and for Northern Ireland, to ensure personally that all outstanding warrants in respect of terrorist offences are checked at once for accuracy and sufficiency. Under the auspices of the intergovernmental conference work has already begun on a range of legal matters relating to extradition; the lessons of the past few days will be studied in that context.
"I should also inform the House, for the sake of completeness, that our inquiries have shown that in giving evidence to the court in Dublin an officer from the Metropolitan Police made an error in referring to the dates on which the warrants were issued. I understand that he sought to correct this error, but that an opportunity for him to do so was not forthcoming. This does not, however, appear to have influenced the court in its decision to release Miss Glenholmes.
"It is deeply disappointing that it has not so far proved possible to obtain the extradition of Miss Glenholmes to face justice in a British court. It is essential that we all learn the right lessons for the future from this failure".
My Lords, that concludes the Statement.
Lord Mishcon: My Lords, while I thank the noble Lord the Minister for repeating the Statement made by his right honourable friend the Secretary of State for Home Affairs in another place, it really is my duty to say from these Benches that this discloses a most scandalous state of affairs. I say this with every sense of responsibility. We were dealing here with a case of alleged murder on our streets. One would have imagined that the most consummate care would have been taken to see that everything was in order in regard to this application for extradition. In saying that, I realise that we are all human, and human error can occur in the best-regulated circles. But this is a chapter of errors in regard to this most important case.
First—and I ask the noble Lord the Minister to correct me if I am wrong—warrants were issued on information in October 1984. They were found, says the Statement, to have some technical errors. I think that this House deserves to know what those technical errors were. My information—and I am open to correction—is that among the errors was a complete mis-spelling of the alleged defendant's name. I ask the Minister to disclose what the first set of errors was.
Then, when the warrants were sent back it was decided to apply for fresh warrants. One would have thought that anyone, let alone someone in a professional legal office, would assume that if fresh warrants were to be issued as against an amended warrant the information had to be up to date with the warrant that was issued.
An official of the director's department (again, will the noble Lord the Minister correct me if I am wrong?) went along to the magistrates' court without the person available to swear the information, and relied upon past information, as, indeed, the learned magistrate must have done. Whether or not it was in the immediate past was irrelevant, because the information was sworn in respect of different warrants; but he relied upon the past information and had no

1177
fresh information sworn before him. The warrant reads that information is to be sworn relevant to that warrant on the day on which the warrant is issued.
After that what happened? We are told in the Statement that throughout last week's court hearings there was close co-operation between the Irish prosecuting authorities and officers from the metropolitan police and the office of the Director of Public Prosecutions. There the Statement ends. There must be a point in mentioning that there was this co-operation. Did the co-operation extend during that week to pointing out to those in London that a fresh error had apparently been made and that the fresh information may not have been sworn as it should have been? I ask the noble Lord the Minister: was any hint of that given?
I next ask him: when did the Director of Public Prosecutions have the first hint that this technical point was being taken? Was any step taken to secure an adjournment so that the Director could himself put the matters right and go over to Dublin; or did he send an official, and of what rank was that official?
It is not enough to say that lessons have been learned. This is too bitter an experience and too bitter a lesson. Will the noble Lord the Minister consult with the Secretary of State with a view to an immediate inquiry being held and a report given to Parliament as to what really occurred? I repeat that it is a scandal.
Lord Wigoder: My Lords, three matters are quite obvious, are they not? First, extradition proceedings are invariably full of technicalities. Anyone who has ever been involved with them knows that perfectly well. Second warning was given (if warning were needed, and I do not believe that it was) some 16 months ago, when these very warrants were returned from Dublin because they contained some technicalities. Third, I think that anyone who does not live in a political vacuum must recognise the fact that there are some Irish Judges who, in the course of perfectly properly exercising their judicial independence, are likely to look somewhat more enthusiastically for irregularities and technicalities than some of their colleagues.
In that situation, was it not completely self-evident that any warrant for extradition, particularly of a person charged with these appallingly serious crimes, should have been checked from start to finish by a very senior person here in this country? I believe that the blame—and unhappily one has to say this—lies very heavily on the shoulders of somebody on this side of the water.
There is one matter in this Ministerial Statement with which I venture to disagree. It is the observation:
"it is clear that the extradition application failed because of a technical objection taken by the Dublin court".
That is quite wrong. It failed because of a mistake made in this country. I hope that we shall be brave enough to admit that fact and not seek to put the responsibility on the Irish in any way, as this Statement appears to do in that sentence.
I have only two other observations that I wish to make. First, I have seen comments in at least two newspapers today to the effect that the Irish court, on
1178
discovering that the warrant was apparently defective, might have adjourned the proceedings and remanded the defendant in custody in order that a valid warrant might subsequently be produced. Would the noble Lord the Minister not agree that that would have been totally improper behaviour by any court? Indeed, any court seeking to do that would have had no answer to a writ of habeus corpus if it had been moved straightaway.
The only other observation I would wish to make is this. I believe in facing up to our responsibilities in this matter. The very great majority of Members in your Lordships' House expressed their enthusiastic support of the Anglo-Irish agreement when it was entered into, and we should not allow our support for that agreement to be weakened in any way.
Lord Glenarthur: My Lords, I am grateful to both noble Lords for their comments on this serious matter, and I shall endeavour to answer the points which have been raised by them. The fact is that to a very large extent we are concerned with technical matters when it comes to the issuing of warrants, and I can assure both noble Lords that in the opinion of those concerned here the greatest care had been taken over the question of the deposition—the statement of facts—that was attached to the warrants. It was our view that the date on the deposition could precede that on the warrants, which it did. The original deposition—the statement of facts—was on 30th October, and the warrants themselves referred to 6th November.
The warrants first issued in 1984 conformed to the information that the police had available at that time, but the main concern was to satisfy new requirements by the Irish authorities on the terminology used. The noble Lord, Lord Mishcon, asked me directly when the Director of Public Prosecutions heard that there was any problem about these warrants. I have to say to the noble Lord that the Director learned about this issue on Friday, and a senior lawyer from the department of the Director of Public Prosecutions was sent to Dublin immediately.
Lord Mishcon: My Lords, will the noble Lord the Minister forgive me for interrupting? I promise I shall not interrupt him again. I asked the Minister a very relevant question; namely, for this House to be informed of the errors in the first set of warrants. I told the Minister what I had been informed, and I asked him if it was correct.
Lord Glenarthur: My Lords, if the noble Lord will allow me, I shall endeavour to return to that point in a moment. The point which I was answering and about which the noble Lord asked me was when we learned that things were not in order. I told the noble Lord just now that we heard on Friday and that a senior lawyer from the DPP's office was sent to Dublin immediately. As for the suggestion that a magistrate or some other person should have gone to Dublin, I have to say that it is not certain that that would have affected the outcome in any way at all.
As to the point raised by the noble Lord, Lord Wigoder, I point out that when the new warrants were obtained on 6th November they were sent to the

1179
Republic and the terms of those warrants satisfied the authorities there. I hope that the noble Lord will understand that, in our eyes, to have the knowledge or the clear understanding of the fact that the authorities there were satisfied with them was a point which had to be taken into account. However, the fact is that technical matters were raised on the warrants by the Irish authorities, and the Irish of course were helpful in what they suggested so far as those technical matters were concerned. I cannot give the noble Lord, Lord Mishcon, precise details of those technicalities. I am sorry that I cannot give him that information, but it is really a matter which has to be considered in the light of the fact that we are talking about two separate legal systems.
Lord Mishcon: My Lords, I am afraid that the noble Lord has made me break my promise not to interrupt him again, but I was taking it for granted that I would receive a full and frank answer. I am sure that the noble Lord is frank with the House, but I absolutely decry the lack of information which has been given to the noble Lord the Minister. I have asked the following question: what is the nature of the technicalities in the first set of errors which occurred with the warrants? For example do they include a misspelling of the defendant's name?
4.15 p.m.
Lord Glenarthur: No, my Lords, apparently they do not include a misspelling of the defendant's name; that information is not correct. We understand that the errors were matters of technical terminology—nothing greater nor less than that. For example, the term, "The Central Criminal Court, London"—or words to that effect—were used in the warrants, and it was felt by the Irish authorities that they should have referred to, "The Central Criminal Court, England and Wales". Those were the minor points upon which the Irish authorities based their rejection of those warrants. I can reassure the noble Lord again by saying that so far as I am aware there is no question of the name being spelled wrongly.
The noble Lord, Lord Mishcon, suggested to me that this was a matter upon which I should consult my right honourable friend about holding an inquiry. Of course I shall take his comments away to my right honourable friend. However, I am not sure that my right honourable friend would agree that it would be necessary or right to have an inquiry, because we know the facts and we know the lessons for the future which have been learned from this experience. The discussions taking place in the context of the inter-Governmental conference will also take in the deficiencies in the warrant procedure which this case has highlighted.
There may well have been other questions raised, but I think that the bulk of the questions which have been asked by the noble Lord, Lord Mishcon, and the noble Lord, Lord Wigoder, have been taken into account in the response that I have made. I realise that this is a matter which arouses the very greatest feeling. I certainly stand here responding with all sincerity to the criticisms that have been made. Noble Lords will be aware that a case like this, which involves other countries as well as our own, is a matter of the very
1180
gravest concern, but it is also one as regards which we have to bear in mind with very great care the issues which the different legal systems of two countries can take into account.
Lord Fitt: My Lords, since the onset of the present IRA campaign, would the Minister not agree that the question of extradition has been the most crucial question that has arisen between the two Governments, often amid roaring and raging controversy? Would he also agree that the only two groups of people both in Ireland and in Britain who can take any solace from this development are the Provisional IRA and those Unionists in the North of Ireland who never believed that the Irish authorities would co-operate on the question of extradition?
As this matter was of such crucial importance, would it not have entered the minds of the authorities in Britain that only persons of a most senior rank in the department of the Director of Public Prosecutions should have the final say on the extradition warrants? Is it possible that one of those officials could have gone to Dublin and could have been in the court when the application was being made? Is it a fact that there was an official from the department in Dublin but that he left before the court appearance? Is it a fact that that official was known, rather incongruously, as Mr. Gerry Adams and was in the employment of the department of the Director of Public Prosecutions?
In that situation, let me reinforce with all the vehemence at my command—because I think it is of the most crucial importance, not only to this case but to the whole future of the whole Anglo-Irish agreement—the words which have been repeated by the Minister; namely, that in the three or four days in the run-up to this case coming before the courts last Saturday there was the utmost co-operation with the Irish authorities. Is it a fact that that is so? Could the Irish authorities, looking at this warrant, not have advised the British that the warrant was invalid in its present form? The only people, it appears to me, on the Republic of Ireland side who have come out of this acting in a fair and courageous way have been the Irish police.
Lord Glenarthur: My Lords, I am grateful to the noble Lord for his comments. I agree with him that extradition is crucial. I do not feel, as he will not, that the Anglo-Irish agreement is in any sense worthless. On the contrary, I think that the incident underlines the need for a forum such as the inter-governmental conference within which matters of mutual concern can be discussed, and Article 8 of the agreement provides that the conference shall be concerned with legal matters, including policy aspects of extradition. I can say that officials are already undertaking work on this extremely important area. The fact that it is crucial is one reason why it should be, and is being, undertaken by the inter-governmental conference.
So far as co-operation by the authorities is concerned, I can assure the House that this has been most helpful. There is no indication that it would have been otherwise. As for the person who attended the court, that is a matter for the Director of Public Prosecutions to decide. I assure the noble Lord that there was absolutely no reason to suppose—indeed,

1181
there is no reason to suppose—that the person who went was in any way inadequate.
An official was also in Dublin, but the guidance of the Irish prosecuting authorities was that it was not necessary for him to appear. That is a question for the Irish prosecuting authorities to decide, and it is advice which naturally those concerned have to follow. I recognise the force of the noble Lord's concerns but I hope that what I have said in relation to the Anglo-Irish agreement in particular will reassure him.
The Earl of Onslow: My Lords, is not this about the most incompetent piece of bungling by somebody for a very long time? A woman who is charged with the most serious possible crimes is now loose, and God knows where she is! Somebody has made the most frightful error, and I sincerely hope that that somebody, or those same people, will never go on to earn their index-linked pension. I sincerely hope that they will be sacked, if they do not resign forthwith, because we shall not be making Irish jokes; we shall be making "DPP" jokes.
Lord Glenarthur: My Lords, I simply say to my noble friend that nobody for one single moment underestimates the significance of this matter. I can also assure him that those who set out to perform the task that they were given, based upon the warrants which were issued in 1984, would have done so only on the perfectly clear advice that the interpretation of the law that was made was the correct interpretation. That is what was done. The fact that things have come to pass which show that now there is scope for tightening up is a matter to which I referred when I read the Statement. No doubt the point that my noble friend makes will be considered, as will all the other points that have been raised in your Lordships' House.
Lord Hunt: My Lords, the whole House will have noted the warm approval given to the concluding remarks of my noble friend Lord Wigoder in regard to the Anglo-Irish accord and the effect that this affair may well have on that accord. Do not the exchanges that have taken place since the noble Lord concluded his comments on the Statement, and the tendency for it to be put about that the blame somehow lies with the Irish Government, underscore the importance of the Government accepting, and accepting quickly, full responsibility for what has happened to bring this about?
Lord Glenarthur: My Lords, what I said in answer to the noble Lord, Lord Fitt, was that the incident underlines the need for a forum such as the inter-governmental conference, because matters like this can be taken into account. What I certainly cannot do, because it would be entirely wrong for me to do so, is to comment on the decision of the Irish courts, and I am sure that the noble Lord will understand that.
I believe that what comes out of this Statement, as indeed my right honourable friend in another place said, is that we must urgently look at the need for a review of procedures in the handling of this sort of case. Indeed, my right honourable and learned friend the Attorney-General has set in hand instructions to
1182
the Directors of Public Prosecutions both for England and Wales and for Northern Ireland. I do not think that that needs to affect in any way, other than to highlight it, the importance of the Anglo-Irish agreement, which I believe will add greatly to what is hoped for in these areas.
Lord Renton: My Lords, is my noble friend aware that the correct description of the whereabouts of the Central Criminal Court is London, and that nobody on this side of the Irish Sea can be blamed for using that description?
Lord Glenarthur: My Lords, I am grateful to my noble friend for that observation. As he is aware, that is not the view taken by those who looked at this document in Ireland. I can go no further than to tell my noble friend that the interpretation placed upon the warrant was that it should have related to England and Wales. I can say no more.
Lord Donaldson of Kingsbridge: My Lords, I am sure that the noble Lord will agree that the feeling of the House is so strong about this that we should have a much more detailed answer as a result of a full inquiry. I agree with him absolutely that at this stage to start saying that the Irish are guilty or not guilty, or the English are guilty or not guilty, is quite wrong. We ought to have the things done step by step so that we can see who to blame, and then blame them.
Lord Glenarthur: My Lords, I am grateful to the noble Lord. What I said was that I would pass on the concern that had been expressed by the noble Lord, Lord Mishcon, that there ought to be some sort of inquiry. I went on to say that I did not necessarily feel that my right honourable friend would be able to agree to that because most of the facts had been deduced already, as I think the noble Lord, Lord Donaldson, will appreciate. Lessons will have been learnt—they always are from these things—and I very much regret that this arose. But I stress to the noble Lord that one or more of the reasons for the issue to have arisen was very much the point that my noble friend Lord Renton raised.
Lord Wigoder: My Lords, will the noble Lord make it clear so that there is no confusion that the question as to where the Central Criminal Court is arose in 1984, and has absolutely nothing to do with the reason why the warrants on this occasion were found to be invalid?
Lord Glenarthur: My Lords, the fact is that they are related. The question that the noble Lord, Lord Mishcon, asked me was precisely what were the errors contained in the warrants, and I gave him an example of what those errors were. My noble friend Lord Renton did not agree that the judgment made upon the warrant was the correct judgment, and he pointed out that so far as he was concerned that court was in London and should not have been referred to as "England and Wales".
Lord Mishcon: My Lords, to abbreviate this matter will the noble Lord be good enough to have a list of the technicalities complained of in regard to the October warrants presented in the Library of the House?
Lord Glenarthur: My Lords, I shall look into the matter. I cannot tell the noble Lord here and now whether it will be possible to produce that list.
Lord Mishcon: Why not, my Lords?
Lord Glenarthur: My Lords, the answer to that is that this is a judgment made by the Irish authorities and it may not be possible to do so. I shall endeavour to do so, but I cannot promise standing at this Box to guaranteee that it will be possible. What I can guarantee to do, if it is not possible to produce a list, is to explain fully why not.
Lord Monson: My Lords, will the noble Lord the Minister perhaps agree that whereas the police in the Irish Republic seem to be unreservedly opposed to the IRA, the same zeal is not always evident in other circles in the Irish Republic?
Lord Glenarthur: I note the noble Lord's point of view, my Lords.
Lord Wilson of Langside: My Lords, will the noble Lord the Minister acknowledge that the situation disclosed both by the reports in the press and by the Statement made today that what is now required to satisfy those both within the House and the public outside is not just some sort of inquiry, as the Minister suggested, but a most thorough and comprehensive inquiry which will make the position and the responsibility for that position clear beyond peradventure?
Lord Glenarthur: My Lords, all I can say to the noble Lord is that in conjunction with the request that the noble Lord, Lord Mishcon, made that I draw those views to the attention of my right honourable friend the Home Secretary that I shall do so.
Lord Harris of Greenwich: My Lords, is the noble Lord aware that no one who is aware of the critical situation in Northern Ireland wants to create trouble between London and Dublin? Is he aware that that would be the height of irresponsibility? Is he also aware of the fact that there is concern in all parts of the House about how this sad situation arose? Will he agree that it is desirable to have as early as possible a more detailed factual statement? It would be far better to have an inquiry but if we cannot have that many of us feel that there should be a detailed factual statement on this whole matter which will undoubtedly take some time to compile, but it would enable Members of this House and another place to form a far more balanced view of this grave situation than they can this afternoon.
Lord Glenarthur: My Lords, I believe that the facts have largely been adduced. I am not sure that it would serve any useful purpose to produce a more detailed statement because what has been said is already detailed and explains what has happened. Nevertheless, I am sure that my right honourable friend will note the noble Lord's remarks.

Drug Trafficking Offences Bill
4.34 p.m.
Committee stage resumed.
Clause 18 agreed to.
Clause 19 [Enforcement of other external orders]:
Viscount Davidson Viscount Davidson moved Amendment No. 26:
Page 19, line 33, leave out ("the proceeds of drug trafficking by any person") and insert ("payments or other rewards received in connection with drug trafficking or their value").
The noble Viscount said: This clause makes provision for an Order in Council to be made allowing our courts to restrain and confiscate property needed to satisfy a confiscation order imposed in another country. This will, we hope, form the basis of a range of mutual enforcement agreements, so that orders made by courts here can be enforced against property held overseas. But we believe that some expansion is necessary in the Bill's definition of the types of orders we shall be prepared to enforce. At the moment, Clause 19(1)(b) refers to an order made for the purpose of recovering the proceeds of drug trafficking: it may well be that other countries' legislation, like the Bill at present before this Committee, will allow the recovery of the value of such proceeds, without being limited to the tainted money. We need to reflect that possibility in Clause 19 so that our courts will be able to assist with the enforcement of orders of that type. The amendment has been devised for that purpose. I beg to move.
On Question, amendment agreed to.
Clause 19, as amended, agreed to.
Clause 20 [Order to make evidence available]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 27:
Page 22, line 15, after ("discharge") insert ("and variation").
The noble Lord said: The need for this amendment arises out of an improvement made to the Bill in another place.
We originally provided that an order made by a circuit judge requiring the holder of material to produce it to the police or Customs, would allow seven days for compliance, or such longer period as the judge might specify. In another place, it was pointed out that there could be circumstances in which the judge might want—and might think it reasonable—to specify a shorter time; and Clause 20(3) now allows that to be done. In general, the holder of the material will have had an opportunity to be present when the application for the order is heard, and therefore to indicate whether a particular timescale would cause difficulties. But there may be circumstances where an order is made without the holder of the information being present, or where, for whatever reason, the period allowed by the judge for the production of information is genuinely insufficient. There may, for example, be unexpected problems in locating material, or retrieving it from a regional office. In these circumstances, we believe that provision must be made for the holder of the material to seek an extension of the time given to comply, and that is the

1185
purpose of this amendment. The procedure will be established by Crown Court rules. I beg to move.
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 agreed to.
Clause 22 [Sections 20 and 21: supplementary provisions]:
Viscount Davidson Viscount Davidson moved Amendment No. 28:
Page 24, line 10, leave out subsection (2).
The noble Viscount said: In speaking to this amendment, it may also be convenient to discuss Amendment No. 29. These are two straightforward and I trust uncontroversial amendments to remove from this clause elements that have become unnecessary. Subsection (2) at present states that various provisions of the Police and Criminal Evidence Act should apply in relation to customs officers in the same way as they do to the police. Such specific provision is not now needed, because these and other parts of the 1984 Act have now been applied to Customs by Statutory Instrument No. 1800 of 1985, which came into force earlier this year. I am therefore proposing the deletion of subsection (2). The words at the beginning of subsection (3) are a relic from an earlier stage in the drafting of the Bill, and need to be removed. I beg to move.
On Question, amendment agreed to.
Viscount Davidson Viscount Davidson moved Amendment No. 29:
Page 24, line 19, leave out ("In this section and").
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clause 23 agreed to.
Lord Denning Lord Denning moved Amendment No. 30:
After Clause 23, insert the following new clause:
("Information on financial transactions.
.—(1) For the purpose of tracing and recovering the proceeds of drug trafficking, the Secretary of State may draw up a scheme requiring banks and financial institutions to report to such authorities as he shall determine any deposit of or transaction in currency exceeding such limit as he shall determine.
(2) If any hank or financial institution reports any deposit or transaction to the authorities in pursuance of such a scheme, it shall be protected by law from any action or complaint by anyone alleging breach of confidence or contract or otherwise.
(3) A draft of such a scheme shall be laid before and subject to affirmative resolution by each House of Parliament.")
The noble and learned Lord said: This is related to the last amendment which we discussed at large, but it is different. In the amendment we discussed before it was entirely voluntary for the banks or financial institutions to report to the chief officer of police their suspicions of drug trafficking. The object of this amendment is to avoid the voluntary nature and to require banks and financial institutions to notify not necessarily a suspicion but large amounts of cash or other property passing through their hands.
The provenance of this provision takes its origin from the United States of America where they have much greater problems than we have with drug trafficking. They have found it necessary to have some
1186
such provision as this; namely, that the banks and financial institutions should disclose to the authorities very large sums (because there are often millions of dollars involved) so that they are put on the alert. These too must be put together. I realise that if they are so bound they ought to be protected in regard to any breach of confidence or anything of that kind, and so in subsection (2) there is the corresponding provision for them to be protected against any complaint from a customer or client for giving that information. The next amendment, Amendment No. 31, omits that, but I am sure it ought to be read with this. The primary amendment is Amendment No. 30.
One would like to know how this has worked. I am told by a United States lawyer that there have been prosecutions in the United States of banks who have not disclosed what they ought to have disclosed in regard to such offences, in effect, helping the drug traffickers in that way. Those prosecutions have shown the banks to be guilty; in other words, they are not doing their duty. In the United States that has been felt to be an important way of chasing up these drug traffickers and getting to know the source of the large funds which are passing through the banks' hands.
This would be a difficult matter to incorporate into our law, and therefore this proposal is not that we should do it as such at the moment, but that a scheme should be drawn up, no doubt in consultation with the banks and with others, saying that they are to report certain sums which have been deposited with them. If they fail to report such things, they will no doubt be made liable and punishable accordingly. It could not be done by amendment to this Bill, but the proposal is that a scheme should be drawn up for the purpose of tracing and recovering the proceeds of drug trafficking. That is the object of it, and I would suggest to the Committee that a scheme such as this, following the example of the United States, could and should be prepared as a further aid to our getting hold of the proceeds of drug trafficking. I beg to move.
Lord Mishcon: When we were considering an earlier amendment, I ventured to say to your Lordships that every conceivable assistance ought to be given within the circumference of acceptable legal propositions to catch the big dealers, and this Chamber and, one hopes, another place will indeed sanction them. That was the background against which I ventured to approach from these Benches Amendment No. 25. That amendment referred to a voluntary scheme which dealt with banks and financial institutions which were permitted to escape from the normal consequences of breach of contract and confidentiality if they endeavoured to assist the authorities. As the noble and learned Lord, Lord Denning, has fairly said, this is a very different proposition. This is mandatory, and when looking at something mandatory upon the banks to disclose confidential information, I beg the Committee to realise what is being done.
4.45 p.m.
Let me take as my first point the fact that your Lordships will see that this mandate upon the banks does not occur only when a charge has been preferred. It is there at any time in connection with drug offences. By way of contrast, the Committee will see at the very

1187
outset of Clause 23, where there is provision for disclosure of information held by government departments, that this is only to be effective at any time after proceedings have been instituted against the defendant for a drug trafficking offence. No such words occur in this amendment.
Secondly, the Commitee will find at the top of page 25 of the Bill, in subsection (3), that:
"An order under subsection (1) above shall not require the disclosure of any material unless it appears to the High Court that the disclosure is likely to facilitate the exercise of the powers conferred on the court by sections 8 to 11 of this Act or on a receiver appointed as mentioned in subsection (1) above".
In other words, the learned judge has to be satisfied that the information which is going to be disclosed is going to assist. There is no such provision in this clause.
Before I go on to deal with the ambit of this clause, let me enunciate a principle which I believe the Committee will find acceptable? It is this. It is all very well for Parliament to create a precedent and then say that in the course of discussion it is realised that one is dealing with a very exceptional case. In the course of discussion a section becomes incorporated in an Act of Parliament, with the background that Parliament has said, "This is an extraordinary situation to be dealt with in an extraordinary way".
All too often, when Members of your Lordships' House have endeavoured to fight against what they believe to be an unnecessary exercise of power by the Executive, a Minister with perfect propriety gets up to say, "We have done this once before in the Customs and Excise Act"—or some other Act—"and there is a precedent for it". We must be safeguarded against the reiteration in Parliament at some future date when this extraordinary power is taken, if the Committee passes this amendment, so that it is not to be construed as a precedent. And what a dangerous precedent it is! Confidentiality goes by the board. In a sacred matter as between banker and customer the bank has to disclose amounts of currency above a certain limit deposited with it.
The noble and learned Lord said in the course of his remarks (I took it down) "money or other property". I believe, in fairness, that as this refers only to currency the words "or other property" were not mentioned with the care that we know he always exercises when he makes any utterance at all. It is indeed only currency. But let me tell the Committee, if I may, as a practising solicitor, that there have often been occasions when people have come to me in very personal circumstances—it could be the birth of an illegitimate child; it could be looking after a mistress who has been given up because matrimonial life has been resumed—and cash sums are lodged in a bank account, the owner of that cash not wishing (With great propriety) to have his name disclosed. Under this section matters of that kind will be disclosable.
There is no question of the bank having a suspicion that it has anything to do with drug offences; there is no question of anybody having been charged. The bank will be under a duty to say that yesterday Mr. X lodged into the bank account of Y a certain sum of money or that Y now has a certain sum of money. Is that what we want? If we want it, is it not something that should be left in abeyance, as the noble and
1188
learned Lord said, to be dealt with by order or regulation (affirmative, it may be)? Do we not have the courage, if we are to do this, to say exactly what the limit and circumstances are that we have in mind, instead of leaving it to a scheme subsequently drawn up by some government, one knows not where or when, for uses that may be for an entirely different purpose? It could be £10 or £20 or more.
The noble and learned Lord may answer me by saying that we have such a requirement with the Revenue for deposit accounts. May I tell him with great respect that were he to make that point it would not be a valid one, because everybody knows that interest on deposit accounts is liable to tax and that all that the Revenue is doing is seeing that it has the tax that it ought to have? It has nothing to do with a current account cash deposit or something of that kind.
We know what orders and regulations mean. They come before the House. We can do only one thing with them. We can pass them. If there is a government with a sufficient majority they will get them through. But we cannot get up and move an amendment and say that the cost limit is too high or the circumstances too rigorous. We have to vote for or against them or abstain. Those are the only things that we can do.
The amendment is grappling with a difficulty that I know we have, but in trying to deal with a very great problem do not let us go beyond where we should go. I uphold the principle of Amendment No. 25 from these Benches. Speaking personally now—I have no other mandate—I see that there are greater problems created by Amendment No. 30 than ever it will solve.
Lord Harris of Greenwich: Not altogether surprisingly, I take the view rather different from the one that has just been expressed by the noble Lord, Lord Mishcon, who, as always, has spoken in a most persuasive fashion. I am bound to say that he was not so persuasive as to explain to my satisfaction why the dangerous precedent which he saw was being established by the amendment did not apply to Clauses 1, 2, 3 and 4 as well.
As the noble Lord will recall, one of the points that he made on Second Reading was the danger implicit in the Bill of the precedent that was being established. He went on to say, as did my noble friend Lord Hooson, that we may be talking about drug trafficking today but tomorrow we may be talking about complicated fraud cases. Indeed, we read in the press that Ministers are at the moment considering just such an approach for offences outside trafficking in narcotics.
Having pointed out that at first glance there appears to be some inconsistency between the noble Lord's position on this amendment and that which underlines the first part of the Bill, I could perhaps go back to one point made by the noble Lord, Lord Glenarthur when he wound up the Second Reading debate and used the words with which I very much agree. He said:
"We cannot and dare not be complacent about the threat that the drugs menace poses for the United Kingdom. We must make every possible strong and determined effort, to use the words of the noble and learned Lord, Lord Denning, in his powerful speech, to intensify law enforcement against drug traffickers by attacking their profits and by preventing the laundering of those profits".—[Official Report, 4/3/86; col. 126.]

1189
That is precisely the issue that we are discussing today. The laundering of profits, as the noble and learned Lord, Lord Denning, said on an earlier amendment, is absolutely fundamental to the question that we are debating today.
If we want to have an idea of the scale of this traffic we have only to look at an Answer given to me by the noble Lord, Lord Young of Graffham It will appear in Hansard of today's date. In a Written Answer he points out that in the first quarter of 1979 heroin to a value of approximately £775,000 was seized by the Customs and Excise. In the last quarter of last year that figure has risen to £12,519,000.
It would be encouraging to imagine that we were being more successful and that the Customs was able to intercept more heroin coming into this country. In reality, it is probably seizing just about the same proportion of heroin now as it did in 1979. If one tries to make a series of mathematical calculations as to what is the approximate size of the trafficking, as I said on Second Reading, it will be arbitrary. It is foolish to try to be precise in such matters. Nevertheless, in 1984, it is probable that heroin with a street value of about £350 million was introduced illicitly into this country. We are also seeing a rapid growth in the trafficking of cocaine. As a result of the fact that the American market is now saturated with cocaine, entrepreneurs, as I endeavoured to point out on Second Reading, are identifying Western Europe as their target. This huge business is, therefore, expanding at a tremendous rate.
When debating such matters it is necessary to maintain a proper and sensible balance; but it is also right to look for a moment at the problem facing the criminal entrepreneurs who are responsible for organising this trafficking. They have a single problem; it is a substantial one. How are they to launder the massive proceeds from their criminal activities which run possibly into hundreds of millions of pounds? Unless they are prepared to take the immense risks involved in walking around with suitcases with large quantities of bank notes, they have in some way to introduce that money into the banking system. The question is how they will do it.
At the moment we know, as a matter of cold fact, that such people can do it without risk that the transaction will be reported to the authorities. How can that possibly be right? Is it not absolutely essential that when debating such a Bill we do everything that we can to introduce machinery to make their task as difficult as possible? How can it be right not to have some provision making it necessary to report a transaction above a certain level to some public agency? The noble Lord, Lord Mishcon, drew attention to some of the practical problems involved, but one of the points with which he did not deal was what had been the experience of the United States. The Americans have a great deal more experience of dealing with narcotics than we have.
5 p.m.
There is absolutely no doubt, on the part of the Federal authorities, that an essential element of their defences against drug trafficking is the requirement to
1190
report cash transactions above a certain level. The Attorney-General of the United States, as I pointed out at Second Reading, made his position on this matter absolutely clear. Indeed, in doing so he announced that the Department of Justice and the Treasury Department were not satisfied with the existing requirements of the Bank Secrecy Act, under which all cash transactions of over 10,000 dollars have to be reported. They have introduced through the chairman of the Senate Judiciary Committee a new Bill which is aimed at strengthening those reporting requirements and the enforcement procedures involved in the Bank Secrecy Act.
When I put this point to the noble Lord, Lord Glenarthur at Second Reading on 4th March, he replied (at col. 126 of the Official Report):
"… we do not believe that any useful purpose would be served by imposing a requirement on banks and other financial institutions to report large cash transactions."
He said that in the United States reporting had been only casually observed. I think that is absolutely true and that is why there have been a formidable number of prosecutions against American banks for failing to report. Indeed, there is little doubt that American banks are now far more aware than they were some months ago of the absolute statutory requirement upon them to live up to the central purpose of this legislation. I think that those prosecutions indicate the seriousness with which the American Government is now attempting to enforce the legislation.
I return to the position in this country. When speaking to the last amendment, the noble and learned Lord referred to the report of the Home Affairs Committee, and I should like to refer to the views of the Parliamentary Under-Secretary at the Home Office, Mr. Mellor, at page 149 of that report, when he pointed out, quite fairly, a number of problems that had arisen in the United States about the reporting arrangements so far as banks were concerned. The points he made were entirely reasonable.
But he went on to say this about the 10,000 dollars reporting requirement, because he was asked by a member of the committee whether we were going to move in the same direction. He said:
"We certainly considered it. Like all of these arguments, nothing is ever rejected forever. Basically we are producing our first-line proposals. I would not rule out at some future point, if these provisions were not as effective as we would wish, that one would want to return to that".
That is Mr. Mellor's view and I agree with it, at least to the extent that he accepts the validity of part of the argument. But what I regret is the fact that he is not prepared to do it now, because I believe that the need for this is clear and urgent.
If anyone has any doubts about that, he has only to turn to page 126 of the same report of the House of Commons Home Affairs Committee, when Assistant Commissioner Dellow, the head of crime division at Scotland Yard, was being interrogated by members of the committee on exactly this point. Mr. Dellow said:
"I think that some of the American laws with regard to the notification of the movement of amounts of money over $10,000, the movement of money outside the country, the movement of money backwards and forwards through barriers and so on, although tending to be regulatory and restrictive, I am afraid are the sort of regulations that are going to assist in terms of controlling this sort of money in this country".

1191
That is the voice of one of the officers with most detailed knowledge of the drug situation in this country, speaking on behalf of the Metropolitan Police where the problem is perhaps at its most serious. I do not argue for a moment that, because a policeman, however senior his rank, maybe advocates a certain course of action, Parliament should uncritically accept it—of course not. All I am saying—and I hope the Committee will recognise this—is that we are going to take a very substantial risk if we simply ignore what he said.
I return to the point that I made at the beginning of my speech. Large sums of money made as a result of this trading in narcotics are now washing around in this country. It seems to me highly desirable to move in the direction advocated by the noble and learned Lord, Lord Denning, in this amendment, which the noble Baroness, Lady Phillips, my noble friend Lord Hooson and I support, because if we do not seize an opportunity like this when we are discussing this very serious matter it may be some substantial time before Parliament has the opportunity of coming back to it.
Lord Boardman: Your Lordships will remember that I declared my interest in a bank on a previous amendment. May I now sound a somewhat cautionary note in regard to the amendment of the noble and learned Lord? The noble Lord, Lord Mishcon, raised a number of points with which in large measure I am in agreement as regards the problems which arise from the noble and learned Lord's amendment and I would add two further points.
First, we should distinguish between what happens in this country and what happens in the United States. On an earlier occasion, I said that the United States is largely a cashless society. There they have imposed a limit of 10,000 dollars, and above that amount a transaction has to be reported. To place a comparable limit in this country—and I know that the amendment leaves that open—would mean a vast amount of work. The number of transactions of comparable size which take place every day are quite vast. Therefore, the answer might be to raise the limit and have a figure very much more substantial than 10,000 dollars; for example, 100,000. I remind your Lordships that there are some 295 registered banks, 300 bona fide licensed depositories and scores of building societies. Someone who had large sums could, if the limit were raised to £100,000, spread it around, which would not be a vast task, and could thereby avoid reporting.
Another point I would make is that, while reporting in the United States has led to a number of prosecutions, my information is that in many cases the law has been respected more in the breach than in the observance. I am not aware that the legislation has led to tracking down or convicting drug traffickers. My final point is that the amount of bureaucracy that would be necessary would be vast and I ask the noble and learned Lord whom he would expect to monitor his scheme.
Having expressed my reservations, may I tell your Lordships again that if there were a method by which we could eliminate the laundering of money I have no doubt that the financial institutions and the banks would accept a great deal of bureaucracy and a great
1192
many handicaps, inconveniences and even breaches of some of the fundamental principles of confidentiality, in order to stamp out the evil trade of drug trafficking? I hope that my noble friend the Minister will feel that before he can accept this amendment he should have further consultations and look at some of the practical problems that would arise from carrying into effect the proposals in this very well-intentioned, but somewhat impracticable, amendment.
Lord Glenarthur: I recall that the noble Lord, Lord Harris of Greenwich, raised this issue during the debate at Second Reading, and the noble and learned Lord, Lord Denning, has now joined him in pressing this point. I fully recognise the force of the point of view of the noble Lord, Lord Harris, that concern about drugs is increasing. The noble Lord has quoted some statistics today which add weight to his words. My noble friend Lord Boardman agreed with him, too, on that point.
This is a question which the Government have considered very carefully in the context of preparing this legislation in the light, among other things, of the comments that were made in the Select Committee report to which the noble Lord referred. We looked at the American experience and thought about the implications for the financial community in this country; and I have to say that we concluded that the results were not likely to justify the degree of effort that would be required for a great many people to operate such a system. Banks in this country frequently receive large sums in cash. In seaside and tourist resorts, just to take two simple cases, or in areas with large numbers of antique shops—these are just examples, and nothing more than that; no relevance is attached to any of them in particular—substantial cash deposits will be specially common. A requirement to report all such transactions would impose a very substantial burden on the banks, as I know my noble friend Lord Boardman will agree, and on some individual branches in particular. I do not believe that it would be right to ask them to shoulder that very heavy burden unless we thought that there would be significant benefits in terms of identifying traffickers and tracing their proceeds.
The noble Lord, Lord Harris, believes that the benefits would exist, but I have to say to him that the practical difficulties and burdens which it would impose are very much along the lines which my noble friend has expressed. Whoever had the task of scrutinising the reports received would find it difficult or impossible to distinguish those which required further investigation from the welter of information that would stream in on deposits of cash arising from perfectly legitimate activities. Indeed, it seems likely that it would be the legitimate cash that would be caught by the reporting requirements. The drug traffickers with whom we are concerned are among the most sophisticated of criminals; I do not think anyone denies that. I cannot believe that they would find it difficult to avoid transactions of a size that would need to be reported. In America, the practice known as "smurfing" has developed, where a number of deposits is made, each just below the reporting threshold. I understand, too, that in America the reporting requirements have in any case been only

1193
patchily observed—I know that I said precisely that at Second Reading—even by large and highly respectable financial institutions.
For all those reasons the Government concluded that it would be undesirable to proceed with a bank reporting requirement here. I recognise that it is an argument different from the earlier argument which the noble and learned Lord, Lord Denning, put forward. I have to say to him that I must resist these amendments. We believe that the powers given by Clauses 20 and 21 of the Bill for the police and Customs to obtain access to information held by banks and others at a very early stage of a drug trafficking investigation will prove a more effective means of identifying and tracing the proceeds of drug trafficking.
I do not think that the noble Lord, Lord Harris, would want me to stress any further the concern that I share with him about the great efforts that have to be made in tackling this terrible problem in every possible way. I agree very much with the noble Lord, Lord Mishcon, that what we are achieving here would not only be impracticable but probably would not have the effect desired because of the way experience has shown it to operate in the United States. With the benefit of my views on that, I hope that the noble and learned Lord, Lord Denning, may feel able to withdraw his amendment.
Lord Harris of Greenwich: Perhaps I may say just two things to the noble Lord, Lord Glenarthur, before the noble and learned Lord replies. Speaking for myself as one of the noble and learned Lord's supporters, I would prefer not to press the amendment today but to wait and see what the Government come up with on the earlier amendment. It does not cover exactly the same ground; it goes far wider—that is certainly true. But I think at that stage we shall be able to form a view, quite bluntly, of whether we are satisfied with the general direction in which the Government are going.
My second point is that in my experience it has been some time since I have heard a Home Office Minister reply to a debate of this kind, on a Bill involving criminal justice policy, basing his argument primarily on the position of the banks—an important point which I admit immediately. The noble Lord did not make a single reference to the attitude of the police. I find that astonishing, but perhaps not altogether surprising given the evidence of Assistant Commissioner Dellow before the Home Affairs Select Committee. He said quite clearly on that occasion that a provision along these general lines was in his view—I do not want to put words into his mouth; the Committee heard the earlier quotation—desirable.
If we do not do it in this Bill we shall come back to it. Indeed, the Parliamentary Under-Secretary who is responsible for Government policy on drugs implied the same thing himself when he gave evidence to the Home Affairs Select Committee. I would far prefer that we continue this debate at a later stage of the Bill when we see what progress we have made on the other questions. I do not know whether my noble and learned ally agrees with me, but I think that that might perhaps be the best way to proceed.
5.15 p.m.
Lord Denning: I thank everybody very much. I quite appreciate the point of my noble friend Lord Mishcon. I hoped that those matters—whether a person had to apply to a High Court judge and get an order from him: whether we could deal with such matters as the banks; whether it should be some or all, and as to the amount and so forth—could be dealt with in a scheme. In other words, it was deliberately vague so as to allow all the details to be worked out later and the objections considered. It will very much need the co-operation of the banks. But, equally, having said that, I thank the Minister for the consideration given by the Home Office to this very problem. It is evidently being looked into very carefully at the moment. I hope they will consider it further. In the light of our progress already on Amendment No. 25, I shall not press Amendment No. 30.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Clause 24 agreed to.
Viscount Davidson Viscount Davidson moved Amendment No. 32:
After Clause 24 insert the following new clause:
("Authorisation of delay in notifying arrest.
.—(1) In section 56 of the Police and Criminal Evidence Act 1984 (right to have someone informed when arrested), at the beginning of subsection (5) there is inserted "Subject to subsection (5A) below" and after that subsection there is inserted—
"(5A) An officer may also authorise delay where the serious arrestable offence is a drug trafficking offence and the officer has reasonable grounds for believing—

(a) that the detained person has benefited from drug trafficking, and

(b) that the recovery of the value of that person's proceeds of drug trafficking will be hindered by telling the named person of the arrest".

(2) In section 58 of that Act (access to legal advice) at the beginning of subsection (8) there is inserted "Subject to subsection (8A) below" and after that subsection there is inserted—
"(8A) An officer may also authorise delay where the serious arrestable offence is a drug trafficking offence and the officer has reasonable grounds for believing—

(a) that the detained person has benefited from drug trafficking, and

(b) that the recovery of the value of that person's proceeds of drug trafficking will be hindered by the exercise of the right conferred by subsection (1) above."

(3) In section 65 of that Act (interpretation)—
(a) after the definition of "appropriate consent" there is inserted—
" "drug trafficking" and "drug trafficking offence" have the same meaning as in the Drug Trafficking Offences Act 1986", and
(b) at the end of that section there is inserted "and references in this Part to any person's proceeds of drug trafficking are to be construed in accordance with the Drug Trafficking Offences Act 1986".
(4) Without prejudice to section 20(2) of the Interpretation Act 1978, the Police and Criminal Evidence Act 1984 (Application to Customs and Excise) Order 1985 applies to sections 56 and 58 of the Police and Criminal Evidence Act 1984 as those sections have effect by virtue of this section.").
The noble Viscount said: The intention behind this new clause is to minimise the risk that the defendant's property might be disposed of by his family or friends before the High Court has had an opportunity to take action to restrain it.
In the Police and Criminal Evidence Act, people taken into custody have clearly defined rights to have a friend or relative notified of their arrest, and to

1195
consult a solicitor. Those are important rights, which Parliament has agreed should be restricted only in very limited circumstances, which are set out in that Act. For notification of arrest or access to a solicitor to be delayed, the offence for which the person has been detained must be a "serious arrestable offence" under the terms of the Act, and this will be the case with the drug traffickers and launderers with whom we are concerned. But before delay can be authorised, there must also be reasonable grounds for believing that the immediate exercise of the suspect's rights would have one or more highly undesirable or prejudicial effects, such as interference with evidence, possible injury to others, alerting other suspects, or hindrance of the recovery of stolen property. We believe that to this list should be added another proper justification for delaying notification of arrest and access to a solicitor: that such notification or access would put at risk the recovery of a person's proceeds from drug trafficking.
There will be occasions when the police or Customs need to effect a person's arrest before they have had an opportunity to seek a High Court order restraining his property. It is not difficult to envisage that a telephone call to the trafficker's wife, brother or friend might give him or her a chance to put some of the defendant's assets beyond the reach of the courts before a restraint order could be made. Consultations with his solicitor could in some cases carry a similar risk.
The effectiveness of the provisions of this Bill would thus be seriously undermined. The Government believe that that is unacceptable and therefore propose that there should be power to authorise delay in such situations, just as there is in the kind of circumstances that I indicated a few minutes ago.
That provision would of couse be subject to the safeguards already provided in the Police and Criminal Evidence Act. Delay would be for a maximum of 36 hours and could only be authorised by an officer of superintendent or equivalent rank. The person detained would have to be told the reason for the delay and it would also have to be noted on his custody record. I believe that the provision is an important one and that it will close a small but significant loophole in our restraint and confiscation procedures. I beg to move.
Lord Wheatley: When we were discussing Amendment No. 25 and the new clause that was introduced by the noble and learned Lord, Lord Denning, I indicated that I shared with all Members in all parts of the Committee an abhorrence of the iniquitous traffic that is continuing at the present time. Before I retired just a few months ago, I was not only in the fortunate position of being able to indicate in the courts of Scotland how the law regarded such traffic with abhorrence and believed that it should be visited with the most condign punishment, but I also had the opportunity, as Lord Justice Clerk, of setting the pattern of the method of disposal.
I say that by way of a preface, lest it be thought that I am in any way trying to ameliorate the strength of purpose behind this amendment or any of the other amendments that we have been discussing. However, I have suggested that it would be undesirable to use a formula that might be applied in other cases where the
1196
circumstances did not warrant its use. That point is one that the noble Lord, Lord Mishcon, has reiterated time and time again.
I have suggested that, in conformity with a formula that was used for the Road Traffic Act, instead of using just the words,
"suspects that any proceeds of drug trafficking",
etc., there should be inserted by way of a qualification, modification or addendum the words,
"or has reasonable grounds for suspecting".
I believe that that suggestion found acceptance by the noble and learned Lord, Lord Denning. He indicated that he was prepared to accept it, and the noble Lord, Lord Glenarthur, in winding up, said that that point would be dealt with along with other points that were raised during the course of our debate.
I wish to point out to the Government and in particular to the noble Lord, Lord Glenarthur, that when it comes to Amendment No. 32 it will be observed that the qualification I suggested in respect of the earlier clause has already been adopted by the Government for this clause. Subsection (5A) states:
"An officer may also authorise delay where the serious arrestable offence is a drug trafficking offence and the officer has reasonable grounds for believing".
That is perhaps a more stringent test than reasonable grounds for suspicion, but it is the same principle.
I direct the attention of the noble Lord to the fact that the Government have already accepted that formula in principle in their proposed amendment, when he comes to consider the new clause that the Government have undertaken to consider in relation to the previous amendment of the noble and learned Lord, Lord Denning.
Viscount Davidson: I am most grateful to the noble and learned Lord, Lord Wheatley, for his comments. We shall examine his words very carefully indeed before the next stage of this Bill.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 33:
After Clause 24, insert the following new clause:
("Prohibition of supply etc. of articles for administering controlled drugs.
—(1) After section 9 of the Misuse of Drugs Act 1971 there is inserted the following section—
"Prohibition of supply etc. of articles for administering controlled drugs
9A.—(1) A person who supplies or offers to supply any article which may be used or adapted to be used (whether by itself or in combination with another article or other articles) in the administration by any person of a controlled drug to himself or another, believing that the article (or the article as adapted) is to be so used, is guilty of an offence.
(2) It is not an offence under subsection (1) above to supply or offer to supply a hypodermic syringe, or any part of one.
(3) In proceedings against a person for an offence under this section in respect of any article it is a defence to prove that he believed on reasonable grounds that the article was to be used—

(a) in the administration by any person of a controlled drug to another in circumstances where the administration of the drug would not be unlawful under section 4(1) of this Act, or

(b) in the administration by any person of a controlled drug to himself in circumstances where having the controlled drug in his possession would not be unlawful under section 5(1) of this Act.

1197
(4) In this section, references to administration by any person of a controlled drug to himself include a reference to his administering it to himself with the assistance of another".
(2) In Schedule 4 to that Act, after the entry relating to section 9 there is inserted—
"Section 9A.
Prohibition of supply etc. of articles for administering controlled drugs.
Summary — — —
6 months or level 5 on on the standard scale, or both.".").
The noble Lord said: In moving this amendment, it may be convenient to discuss with it Amendments Nos. 43, 44, and 45. This proposed new clause meets an undertaking given in another place, and repeated by me during the debate on the Second Reading of this Bill, to introduce a provision to ban the sale of drug paraphernalia. The immediate cause for public concern was the open sale of cocaine kits, which have appeared in the shops in central London and elsewhere. But we believe that the new provision should cover articles that may be used for the administration of any controlled drug: there is no good reason for simply confining it to cocaine.
Your Lordships will also see that we propose that the new offence should cover individual items sold for the administration of a controlled drug, and not simply combinations of items, or kits. It would, I think, be anomalous and unacceptable to say that items could be sold separately for the administration of a controlled drug, but could not be sold together. Moreover, "combination" is a difficult concept to define with precision. There are some articles made up of several parts that might reasonably be viewed by a court either as a single item or as a combination of items. To confine the new offence to "combinations" of items would therefore leave its scope unclear.
An essential component of the proposed offence, however, is belief on the part of the supplier that the article or articles he sold would be used for the administration of a controlled drug. The burden will be on the prosecution to establish such belief beyond reasonable doubt. This will, in our view, adequately safeguard the position of honest shopkeepers, who might inadvertently and in good faith sell an item that is in fact to be used for drug taking, and whom nobody wants to see put at risk by the creation of this new offence.
There are a couple of other points that I should draw to your Lordships' attention. We are providing in subparagraph (3) a defence for the supplier if he believes on reasonable grounds that the items he sells will be used for administering a drug for medical purposes. And in subparagraph (2), we are specifically excluding from the scope of the offence hypodermic syringes, or any parts of them, such as hypodermic needles. Although that latter point may appear in some ways to go against the purposes of the new clause, it is done for a good reason. It is important because of the increased risks of AIDS and hepatitis that could result from re-use of those items. The new offence is to be triable in magistrates' courts, and the maximum penalties will be six months and/or a fine of level 5 on the standard scale, which is currently £2,000.
While I am asking the Committee to agree to this new clause, I should mention that my right honourable friend the Home Secretary is considering the possibility of extending the scope of the offence to
1198
cover items used to prepare drugs for administration, as well as those used for administering drugs. The cocaine kits that have caused so much public concern recently usually contain only one item that is used for administering the drug: all the rest are used for preparing it. If that one item—the tube—were to be removed from the kits and sold separately, we could easily see the appearance on sale of "cocaine preparation kits", which would be just as offensive as the kits currently in the shops.
Provided the burden remained clearly on the prosecution to establish the necessary degree of belief on the part of the supplier as to the intended use of the articles he was selling, we do not believe that such an extension would threaten the position of honest shopkeepers. My right honourable friend, in considering that possibility further, would be interested in any views your Lordships might wish to express at this stage, and if he concludes that an extension on the lines I have described is desirable, we shall table a further amendment on Report.
The amendment proposed provides that the new offence will be created for Scotland and Northern Ireland as well for as England and Wales. I hope that the Committee will agree also to a necessary consequential amendment to the Title of the Bill. I beg to move.
Lord Mishcon: I immediately rise to give my wholehearted support to this amendment and to the extension mentioned by the noble Lord the Minister. I have received a letter, as I believe the Minister has, from the Retail Consortium—and it is very worthy of that organisation—saying that it wholeheartedly supports the amendment and feels that the ingredient of mens rea, to which the noble Lord referred, is an adequate and proper safeguard for the innocent shopkeeper. Otherwise, it supports the amendment and it is much to its credit that it does.
5.30 p.m.
Lord Denning: I support the amendment but I should like to strengthen it a little. I would not leave it at believing that it was to be "adapted", and so on, or having reason to believe, or suspecting. It will be hard to prove the belief. We have had it in the Salmon Bill and in other cases. Do not leave it to having to prove belief. Having had "reason to believe" or suspect should be brought in; otherwise, he will get away with it.
Lord Harris of Greenwich: Speaking on behalf of my noble friends and myself, I agree that it will probably be sensible to move in the direction foreshadowed by the noble Lord, Lord Glenarthur. I think it might create certain evidential problems, but nevertheless I believe it is right to do it for the reasons he indicated.
I too have had a letter from Mr. McNally on behalf of the Retail Consortium, as have some of my noble friends. I think, with the noble Lord, that it is extremely praiseworthy that it has approached the matter in this way. It was a very responsible act on its part and we should all pay tribute to it for having done so. Having said that, I think a further amendment on

1199
the lines foreshadowed by the noble Lord is probably a sensible proposal.
Lord Glenarthur: I am grateful to the two noble Lords and the noble and learned Lord for their comments. I entirely share their sentiments about the Retail Consortium. It is a responsible attitude to take and I am glad that it has been able to approve of what we are doing.
As regards strengthening the clause further in the way suggested by the noble and learned Lord, Lord Denning, it is a matter which I shall certainly reflect upon. I am not quite sure of the relevance of the words that he chose to suggest—"reason to believe"—and I can see that they would have the effect of strengthening the clause. However, I shall consider his proposal to see what can be done, but without commitment.
On Question, amendment agreed to.
Clauses 25 to 27 agreed to.
Clause 28 [Interpretation]:
Viscount Davidson Viscount Davidson moved Amendment No. 34:
Page 27, line 14, leave out ("(d)") and insert ("and includes a person doing the following, whether in England and Wales or elsewhere, that is").
The noble Viscount said: Although Clause 28 provides that the new laundering offence created by Clause 17 is to be a "drug trafficking offence" for the purposes of this Bill—so that confiscation procedures will apply to the offenders—it is felt that to say in the Bill that drug trafficking means (that is, is synonymous with) money laundering is an undesirable use of language. To avoid stretching the words, while enabling benefits from earlier and overseas laundering to be taken into account in the confiscation order, the proposed amendment provides that laundering shall be included in the notion of drug trafficking. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 35:
Page 27, line 17, leave out ("of the proceeds of drug trafficking by him") and insert ("person of the other person's proceeds of drug trafficking").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 36 and 37:
Page 27, line 19, at end insert ("person").
Page 27, line 21, leave out from beginning to ("benefit") and insert ("the other person's disposal or are used for the other person's").
The noble Lord said: I have already spoken to these amendments. I beg to move them together.
On Question, amendments agreed to.
Viscount Davidson Viscount Davidson moved Amendment No. 38:
Page 27, line 26, at end insert—
("(aa) an offence under section 20 of that Act (assisting in or inducing commission outside United Kingdom of offence punishable under a corresponding law).").
The noble Viscount said: Section 20 of the Misuse of Drugs Act makes it an offence to take action in the
1200
United Kingdom to assist or induce the commission of a drug trafficking offence overseas. We believe that where a person has made money from such assistance or inducement it should be confiscated in the same way as it would be if he had assisted in the commission of a drug trafficking offence here. The amendment therefore adds these Section 20 offences to the list of offences which will in future give rise to confiscation orders. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 39:
Page 28, line 23, at end insert—
("(3A) References in this Act to anything received in connection with drug trafficking include a reference to anything received both in that connection and in some other connection.").
The noble Lord said: I have already spoken to this with Amendments Nos. 1 and 2. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 40 and 41
Page 29, line 24, leave out ("making") and insert ("having made").
Page 29, line 26, leave out paragraph (f) and insert—
("(f) the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default).").
The noble Lord said: It may be for the convenience of the Committee if I move Amendments No. 40 and 41 at the same time. Subsection (9) of Clause 28 contains a lengthy list of possible ways in which proceedings may be concluded. We should like to clarify this list in two ways. First, we need to allow for the possibility that the court may not sentence an offender, or make a confiscation order, immediately upon conviction, but may require him to return to the court on a subsequent occasion. The first amendment is designed to cover that situation. The second amendment reflects the possibility that in some cases—we hope not too many—the defendant may choose to serve a period of imprisonment in default rather than pay the amount needed to satisfy the confiscation order. Once he has served such a period of imprisonment, clearly the proceedings must be regarded as at an end. I beg to move.
Lord Mishcon: May I put just a brief question? Has the noble Lord considered, and if not is he prepared to consider, whether in this class of offence where we are making exceptional laws it would not be proper to give no alternative in regard to a confiscation order and to serve a term of imprisonment in default? One of the matters raised on Second Reading, I remember, was that there are many people who would prefer a term of imprisonment and come out with their ill-gotten gains in their millions. One wonders, therefore, whether the confiscation order should not be an order made by the court without any alternative being given to the defendant.
Lord Glenarthur: That is certainly a matter upon which I shall need to reflect and seek advice. I undertake to do precisely that.
Lord Harris of Greenwich: Before we move from that point, obviously one would, like the noble Lord,

1201
Lord Glenarthur, want to consider this matter before coming to a firm conclusion. However, I think there is significant merit in what the noble Lord, Lord Mishcon, said. There are—and one is talking about very substantial sums of money—some people who would far prefer to serve a sentence of imprisonment. However, the noble Lord says that he will reflect on this issue, and perhaps after he has done so he will correspond with us. It may well be that we are entirely mistaken, but we should like to think about it and we should be aided in doing that were we to have some helpful advice from the noble Lord.
Lord Glenarthur: I shall certainly do my best to provide helpful advice before the next stage of the Bill.
On Question, amendments agreed to.
Clause 28, as amended, agreed to.
Clause 29 agreed to.
Clause 30 [Short title, commencement and extent]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 42:
Page 30, line 7, leave out ("27") and insert ("25")
The noble Lord said: This is simply a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment Nos. 43 and 44:
Page 30, leave out line 12 and insert—
(" (3) Subject to subsection (4) below, this Act")
Page 30, line 13, at end insert—
(" (4) Section 16 of this Act extends also to Scotland and section [Prohibition of supply etc. of articles for administering controlled drugs] extends also to Scotland and Northern Ireland.")
The noble Lord said: I have already spoken to these amendments. I beg to move them together.
On Question, amendments agreed to.
Clause 30, as amended, agreed to.
In The Title:
Lord Glenarthur Lord Glenarthur moved Amendment No. 45:
Line 3, after ("trafficking") insert ("to make provision about the supply of articles which may be used or adapted for use in the administration of controlled drugs")
The noble Lord said: I spoke to this amendment earlier. I beg to move.
On Question, amendment agreed to.
House resumed: Bill reported with the amendments.

Professions Supplementary to Medicine (Winding up of Remedial Gymnasts Board) Order of Council 1986
5.40 p.m.
Baroness Trumpington Baroness Trumpington rose to move, That the draft order laid before the House on 10th March be approved. [15th Report from the Joint Committee.]
The noble Baroness said: My Lords, this order marks a unique development in the history of the National Health Service which I believe will be welcome to all parts of the House. This is the first occasion on which a profession supplementary to medicine has voluntarily given up its identity and consented to what is effectively a merger with another profession in a way requiring formal ratification by Parliament.
The order of Council before you for approval by resolution of this House will amend the Professions Supplementary to Medicine Act 1960 (the 1960 Act) to reflect the merger of the remedial gymnastics profession with the physiotherapy profession, which took place on 16th November 1985. This is a development which has been welcomed by members of both professions throughout the United Kingdom.
The 1960 Act provides for the registration of the members of certain professions and for the regulation of their professional education and conduct. It established a board for each profession, to be coordinated and supervised by a Council for Professions Supplementary to Medicine.
The purpose of the 1960 Act was two-fold: to ensure that a consistent standard of training, qualification and conduct would be achieved by the registered practitioners of these professions, and to establish state registration as a "kite-mark" by which the public would be able to recognise practitioners who had attained this standard.
The Council for Professions Supplementary to Medicine is an independent body financed entirely from initial registration and annual renewal fees from the members of the constituent professions. The proposals which it makes for the revision of students' qualification, examination and training requirements require the ultimate approval of the Privy Council. Section 10 of the 1960 Act provides for the Privy Council, on a recommendation of the Council for Professions Supplementary to Medicine, to make an order to extend or restrict its application, and it is under the power of this section that the order before the House is made. As such an order in effect amends an Act, provision is made for an affirmative resolution of both Houses.
A little history is of relevance here. Like so many other developments in medicine, the remedial gymnastics profession had its origin in the special circumstances of the Second World War, when special rehabilitation units of the armed forces were created to tackle the two problems of dealing with recruits of poor physical standard and the ever-increasing numbers of injured personnel who needed to be returned speedily to active duty. These units especially stressed active and group therapy which was in essence a modified form of physical training.
So beneficial did this active approach prove to be that after the war the then Ministries of Labour and Health took action to ensure its continuance in civilian life and a course was developed and implemented at Pinderfields General Hospital (as it then was) at Wakefield, as a school of remedial gymnastics, originally as a conversion course for ex-military physical training instructors. This was the origin of the profession, which became one of those covered by the provisions of the 1960 Act.
In the years since the profession came into being, changes in the activities and clinical practice of remedial gymnastics have brought it into closer relationship with the practice of physiotherapy, to an extent where a measurable degree of overlap prevails. This fact has been recognised for some time and indeed a merger between the two professions was being mooted as far back as 1973, when it received the support of a recommendation by the working group on the remedial professions, set up by the then Secretary of State for Social Services under the chairmanship of Mr. E. L. McMillan. But the Society of Remedial Gymnasts and Recreational Therapists, the body which represented the interests of remedial gymnasts, was a cautious if not a reluctant bride, and progress was slow until 1983 when the Chartered Society of Physiotherapy decided to offer to extend its membership to those remedial gymnasts who would undertake to acquire the additional skills which would bring their training into line with that of physiotherapists. However, the course of true amalgamation still did not run smooth, and because of difficulties connected with the status of the Society of Remedial Gymnasts and Recreational Therapists as a limited company, the knot was not finally tied until 16th November 1985. At an extraordinary general meeting the Society of Remedial Gymnasts and Recreational Therapists Limited, taking note of a ballot of its full membership, which was significantly in favour of merger, decided in an act of great faith in the future to wind itself up.
Simultaneously, former members of the Society were offered membership of the Chartered Society of Physiotherapy under the terms of the provisions of their Royal charter. Provision has of course been made for these practitioners to undergo the necessary complementary skills training to allow them to practice as physiotherapists. Within the NHS arrangements have been made for the necessary protection of terms and conditions of service of former remedial gymnasts. I understand no major difficulties have been encountered.
There remain a number of legal steps which require to be taken to wind up the state registration machinery for this profession. Some of these are related to the amendment of a number of internal rules of the Council for Professions Supplementary to Medicine and its boards and there are others which do not require an affirmative resolution of both Houses. The significant step of abolishing the registration board of the remedial gymnastics profession itself however requires, as I mentioned earlier, such an affirmative resolution. The order before the House will cause the provisions of the 1960 Act to cease to refer to the profession of remedial gymnastics. It will also abolish the remedial gymnasts board and extend the function and membership of the physiotherapists board to cover former registered remedial gymnasts, enabling them to register as physiotherapists.
At this point I should like again to acknowledge both the courage of the members of the remedial gymnastics profession in taking the unique step of voluntarily relinquishing their identity and casting their lot in with another larger professsion, and the far-sightedness of the Chartered Society of Physiotherapy in making the proposal of marriage. It
1204
is not that the philosophy of remedial gymnastics will be lost. It will continue to be acknowledged within physiotherapy. Moreover, Pinderfields School in the Wakefield Health Authority, long the leading centre for remedial gymnastics training, is being converted, with financial help from the Department of Health and Social Security and from the Yorkshire Regional Health Authority, to a physiotherapy school, to function in that role from the beginning of the academic year 1986–87. It will continue to give due emphasis to the philosophy and practice of remedial gymnastics.
I wish also to use this opportunity to recognise the work of past and present members of the remedial gymnasts board, particularly its chairmen, and to thank all the members of the remedial gymnastics profession for their valued contribution to health care. I am sure that your Lordships would like to join with me in wishing the amalgamated group of physiotherapists and remedial gymnasts all good fortune in the future.
In view, therefore, of the decision to join ranks by the two professions concerned and of the support that their action has received from the Council for Professions Supplementary to Medicine and the Privy Council (after due consultation with the appropriate professional boards), I ask your Lordships to make an affirmative resolution to approve the draft order of the Council. I beg to move.
Moved, That the draft order laid before the House on 10th March be approved. [15th Report from the Joint Committee.]—(Baroness Trumpington.)
Lord Ennals: My Lords, it is not always that the noble Baroness and I are in total agreement, but we are in absolute agreement on the order that is laid before us. Not only do I want warmly to support the noble Baroness in her proposal but I should like to express my gratitude to her for giving us a little bit of the history that led to this amalgamation. I would agree with her that amalgamations are always welcome where they are due to the success of those concerned; all too often organisations of one sort or another find themselves open to splitting or to multiplying, and actually to get them to come together is always a difficult task. I think that both organisations are entitled to the thanks and congratulations not only of the whole House but of the National Health Service. This does enable us just to say a few words, as the noble Baroness did, of thanks and congratulations to both organisations.
Obviously, the occupational therapists are the major organisation of the two, with roughly 22,000 occupational therapists operating in the country, while the remedial gymnasts only have about 700. But it was not a takeover bid in the sense that made the remedial gymnasts feel that their work had not been apreciated. It was that as the physiotherapists gradually and steadily increased their skills they incorporated the skills which are held by the remedial gymnasts. I should like to pay my own personal tribute to the physiotherapists and now the remedial gymnasts who have joined them. I cannot claim that I was ever knowingly treated by a remedial gymnast, but over 40 years ago at the end of the war, when I suffered serious injuries, I had reason to be thankful to the

1205
physiotherapists; and in very recent times—nay, this week—I have had reason to be thankful to the physiotherapists.
I understand that both the noble Baroness and I shall be invited to share the celebration of the union between the two organisations on 28th April. I hope that the noble Baroness will be able to accept, and I hope that I shall.
I have only one other comment which I should like to make to your Lordships: that is, that if we ever come to make a change again I should like to see the title changed. I would rather see "Professions Complementary to Medicine" than "Professions Supplementary to Medicine". I recognise that these professions act under medical advice, but they have skills which the medical profession do not have, and they are often very precious skills. So I simply say to the noble Baroness that, if she is in her place at a time when any further change has to be made, I hope she will think of calling them professions "complementary to" rather than "supplementary to" medicine. I only say that as an additional tribute to two professions which have come together for the mutual benefit of each of them.
On Question. Motion agreed to.

Legal Aid (Scotland) Bill [H.L.]
5.53 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): 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.—(Lord Cameron of Lochbroom.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD WELLS-PESTELL in the Chair.]
Clause 21 [Scope and nature of criminal legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 51:
Page 14, line 30, leave out subsection (2).
The noble Lord said: The Amendment is to leave out subsection (2) of Clause 21. This clause illustrates the lack of independence of the board and shows that it is just a creature, a puppet or a pawn of the Secretary of State because the Secretary of State may, by this clause, make regulations in relation to criminal legal aid saying at what class or stage of proceedings criminal legal aid shall not be available. It gives a total power, for example—to take it to a ludicrous extent—to say that legal aid will not be available in the High Court for cases of rape or murder, which no doubt he would not intend. It is a very wide power, and is a power which seems to be wholly wrong. It would be interesting to know if the Government or whoever drafted this Bill had in mind the European Convention on Human Rights, Article 6.6 of which provides that:
"Everyone charged with a criminal offence has the following minimum rights:—… to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require:"
Of course, under the provisions legal aid has only to be granted when the interests of justice so require, so how can the Secretary of State make regulations taking out classes of proceedings or stages of proceedings and still comply with the European Convention on Human Rights? I beg to move.
Lord Elwyn-Jones: This really is a most remarkable provision. Clause 21(2) says: "The Secretary of State may, by regulations made under this section, prescribe by reference to such considerations as appear to him to be appropriate"—that is the Secretary of State—"any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available." It gives him the complete discretion to ride a coach and four through all the criminal legal aid provisions of Part 4. It is a remarkable provision.
Will the Secretary of State enjoy such powers as this, I wonder. There is to be no restriction on him. He is the boss; he is the master; he will be the master of the board. Really, I cannot think of any precedent for a provision granting such power as that.
I recollect that the noble Earl, Lord Selkirk, speaking earlier—if he does not mind being quoted—said, "I don't like the Bill; it is full of regulations. There is one regulation for every two clauses." This is about the most notorious, if I may so describe it, of the mass of regulations we face, and I was not surprised when he used language that perhaps I ought to be nervous of using, when he described it as a travesty of a Bill. This is one of the passages which merit that fierce condemnation.
One cannot help noticing in passing—we shall come to Clause 22 in a moment—that in the marginal note to Clause 22 it states, "Automatic availability of criminal legal aid". This is not so; there is nothing automatic about it. It is all subject to the control of the Secretary of State and, as my noble and learned friend has said, he has power at any time to say "No, you can't have criminal legal aid for Class A or Class B of work", and in this way to deny what should be a legal right—namely, the right to criminal legal aid when the resources of the accused person make it impossible for him to provide for his own defence and representation. The provision of legal aid is not a marginal benefit on the fringe of the welfare state: it is a right—a right that the citizen should enjoy. It is a matter of rejoicing that since the war we have produced the scheme within the defined but established limits where it is available. Subsection (2) of Clause 21 is a defiance of the principles of the grant of legal aid especially in the criminal field. I am expecting (I can scarcely wait) to hear the noble and learned Lord the Lord Advocate say that the Government must take this matter back and think about it again.
6 p.m.
Lord Denning: I, too, should like to support the amendment. We have nothing like this in respect of criminal legal aid in England. We go by the report of Mr. Justice Widgery (that is, Lord Widgery) which was against any classification. In respect of superior courts, the report said:
"Persons committed to assizes or quarter session for trial or sentence… should, as a general practice, be granted legal aid. The

1207
courts should retain a discretionary power to refuse legal aid on grounds other than means…".
That was in respect of superior courts. As to summary jurisdiction, the report said:
"We found, however, that it was impossible to specify with certainty offences where legal aid should never be granted, or, at the other end of the scale, offences for which it should always be granted. One difficulty was that the headings under which crime is classified are often broad ones, and a heading such as larceny covers a considerable number of offences differing widely in their seriousness and complexity. After considering various possibilities we reached the conclusion that the classification of summary proceedings into those where legal aid should be mandatory, discretionary or not available is impracticable and that the grant of legal aid in these proceedings must remain at the discretion of the court".
The truth is that the Widgery Committee looked into the question of classification and whether legal aid should be granted in larceny cases, rape cases or burglary cases, but said that there could not be such classification because it was impracticable. It also suggested that guidance be given. You cannot do this by regulation. It should be done as it is in England and as Lord Widgery's report states. I would be against regulation.
Lord Wheatley: I find myself in complete agreement with the noble and learned Lords, Lord Elwyn-Jones and Lord Denning. The more we go into this Bill, the more I keep posing in my mind the question, "What is it that English lawyers have that Scottish lawyers do not have that causes this great distinction between the operation of the legal aid system in England as compared with Scotland?" Why is it that English judges can be trusted to do certain things that Scottish judges cannot? Why is it that certain full rights are granted to people south of the Border but may be denied to them north of the Border? There has been no answer to that series of questions since the beginning of this Bill. I would invite the noble and learned Lord the Lord Advocate to give some explanation of this enigma that has puzzled me throughout our proceedings.
Let us get back to fundamentals. The noble and learned Lord, Lord Elwyn-Jones, has pointed out that this is not a fringe benefit of the welfare state. It is probably one of the most important things in the field of criminal law—we are dealing with legal aid in criminal causes—that has taken place in the history of Scottish law. It gives full and complete right to a person to have proper representation and defence when charged with a criminal offence in our criminal courts. That is a very important matter. The fact that it is endorsed by the Convention on Human Rights is merely another glimpse of the obvious. To compound this problem, we find that the wording, mentioned by the noble and learned Lord, Lord Elwyn-Jones, refers to the right of the Secretary of State to restrict still further the pittance that we already have by cutting down on the class of crime, no doubt, and the class of person, no doubt, entitled to legal aid, or the stages at which legal aid might be given.
It is proposed that this should be done, not in the Bill but by affirmative resolution of either House. I would have thought that this invasion of such a fundamental right was something, if it were to be done, that should be done in primary legislation that can be examined carefully and amended where necessary. But, as the noble Lord, Lord Mishcon, explained
1208
earlier today, there is, under the affirmative resolution procedure, no opportunity to amend. You either endorse it or you reject it. In allowing this invasion of the rights of persons in respect of class or stage, of which we know nothing at present except by generalisation, to come before the House, the Government feel no doubt that they can carry whatever they want to do by the majority that they have in the other place, and by the convention, almost, of this place, without having to yield one inch in respect of any arguments, however persuasive and logical, advanced in your Lordships' House.
In those circumstances, I would suggest to the noble and learned Lord the Lord Advocate that not only is this a matter that he should take away but also that he should persuade the Secretary of State for Scotland, who, being a member of the Faculty of Advocates, should not need any persuading, that this is not the way to go about things. If the Government want a severe curtailment of legal aid in Scotland that is not being followed in England, let them have the courage of their convictions and bring it into the primary legislation of the Bill.
Lord Foot: I should like to speak briefly from these Benches in respect of this matter. On first reading the provision in Clause 21(2) I had doubts about whether I had properly understood it. I did not believe that it could be so draconian as it apeared. However, having listened to the words that have been spoken, and the surprise and astonishment already expressed, I am comforted to believe that I did understand it. This is not a matter that is concerned simply with legal aid in Scotland: it concerns the way we legislate. It is really something of a constitutional issue. According to my understanding, subsection (2), by which the Secretary of State can make regulations about the class, and so on, of proceedings, and about proceedings where legal aid shall be available and proceedings where it shall not, governs the whole of Part IV, except possibly Clause 23. Clause 22 purports to set up what are the occasions when there is automatic availability of criminal legal aid. But the whole thing is prefaced by being subject to the regulations of Clause 21(2). If one turns over the page and looks at Clause 24, there we find what is meant to be the definition of the right to legal aid in summary proceedings; and, there again, it is qualified at the beginning by Clause 21(2). Finally when one comes to legal aid in appeals, in Clause 25 one finds exactly the same position. At the top of the page it says "subject to regulations", and so on.
As I understand it, in considering this Bill we are supposed to be defining what are the occasions and when legal aid will be properly available to people who seek it in the Scottish courts. The noble and learned Lord the Lord Advocate will correct me if I am wrong. As I understand it, theoretically this objectionable subsection gives the Secretary of State power, if he so wishes to abrogate completely all the provisions of those clauses that are contained in Part IV. In other words, we are not being asked here in the High Court of Parliament to define what is to be the future situation of criminal legal aid in Scotland. We are being asked to give a blank cheque to the Secretary of State to make such regulations later on as he thinks fit.

1209
I cannot remember an occasion when we have ever been presented with anything as blatant and draconian as that. I do not know whether the noble Lord, Lord Morton, has the intention of taking this matter to a Division, but if he did it would surely be very deplorable that the Government should use their majority in this House in order to force through something which is so universally condemned.
Lord Wilson of Langside: I have listened with enormous interest to everything that has been said from all sides of the Committee. I do not propose to take issue with any part of it. However, I felt that rather than stay silent on these Benches in the face of the attack which has been made I should confess that I find the situation paradoxic. As I understand it, unless my researches have led me astray, this provision derives from Section 1(3) of the 1967 Legal Aid (Scotland) Act which was passed by a Government of which both the noble and learned Lord, Lord Elwyn-Jones, and myself were members.
The Earl of Selkirk: May I say one word about this. There is very little more to add to the distinguished statements which have been made. This means that the Secretary of State has no confidence in the board at all. These are essentially the kinds of decisions that the board which he himself is nominating should make. This is not a political decision. It is essentially a decision in regard to the administration of legal aid. That should be made by the board and not by the Secretary of State—however wise, however great a sense of justice he may have. This is not his function. If one does not trust the board to do this then the board must be changed to something else.
Lord Silkin of Dulwich: I should like to add one word to what has been said so forcefully. It is to draw attention to what one might call the guidance given to the Secretary of State by the subsection in his decision as to the regulations being made. That guidance is by reference to such considerations as appear to him to be appropriate. In other words, he has no guidance at all. Parliament is not telling him what he should give consideration to, or what matters ought to affect his mind. It is entirely open to the decision of the Secretary of State himself. That surely cannot be right.
6.15 p.m.
Lord Cameron of Lochbroom: I assure the Committee that there is nothing new in what is proposed here. The noble and learned Lord, Lord Wilson, reminded us of the fact that there is a parentage for this. May I say where it starts? It begins in 1949 in the first statute that gave life to legal aid in Scotland. In Section 1(3) of that Act Parliament provides this:
"the proceedings in connection with which legal aid may be given may be varied by regulations,"—
there is no reference to the considerations—
"and the regulations may describe the proceedings to be included or excluded by reference to the court or tribunal, to the issues involved "—
I ask the Committee to observe:
"to the capacity in which the person requiring legal aid is concerned"—
1210
and these words—
"Or otherwise".
I was therefore slightly surprised to hear certain noble Lords suggest that there was no precedent for this. What clearer precedent could there be than those words? They were taken into the 1967 Legal Aid (Scotland) Act and repeated in extenso there.
There is good parentage for this. The purpose is quite clear, the board operates within statute. It is not to operate outside statute. The purpose of this power is simply to enable the Secretary of State to specify, if he considers it appropriate, both the stages and the classes of proceedings for which criminal legal aid will be available. This is a power which has been inherent in the legislaton since 1949 and has been inherent in the legislation, so far as it applies to criminal legal aid, since that was introduced into Scotland.
Some of the stages which are specified on the face of the Bill—for instance, in Clause 21(3)—say that criminal legal aid will be available for summary proceedings after
"the conclusion of the first diet at which the accused has tendered a plea of not guilty".
However, the reference to stages is intended to provide a greater degree of flexibility and, for example, to make clear the stages at which, on the one hand criminal aid, and on the other hand, assistance by way of representation, may appropriately be given.
I have already explained in Committee that provisions for assistance by way of representation is made under Clause 9 and the regulations that are provided for there. Again, I wish to make it quite clear that if, as I think was suggested, perhaps a slight reductio ad absurdum, the Secretary of State were to prescribe by reference to considerations as they appear to him that all proceedings should no longer be available for criminal legal aid, I should have thought it perfectly clear that in so doing he was acting ultra vires. The purpose of these regulations is perfectly plain in my submission.
I would also point out that, like the existing power—the one to which I have referred in the 1967 Act, which is the current Act—the power under subsection (2) can be exercised only by regulations which are subject to affirmative resolution, and hence to Parliamentary scrutiny. As I have explained previously, one of the objectives of the Secretary of State is to ensure that legal aid is available where it is most required. This provision could be used as necessary to help him achieve this objective.
I do not accept that there is anything in this which is either new or which offends against any of the statements in the convention. Indeed, if this offends, so does the existing legislation. I cannot think that this would have been a point which had not been made before.
The scheme of this Part of the Bill is perfectly plain. It is one which I have pointed out before. In solemn procedure the applicant will be entitled to criminal legal aid if he establishes hardship. So far as summary criminal proceedings are concerned, they are dealt with by the terms of Clause 21(3). Of course, there is further provision for automatic availability of criminal legal aid in summary proceedings in, for instance, Clause 22, which deals with the position where the

1211
accused is in custody. Moreover, as the noble Lord, Lord Foot, pointed out, the matter is also dealt with in Clause 24 in that once an application is made it is to be dealt with on the basis of what is set out there. We shall come to another issue arising under Clause 24 in due course.
However, I must most strongly demur from the suggestions which have been made by your Lordships that there is anything unusual or strange about this subsection. For that reason I cannot give any undertaking that the Government will not proceed with the subsection in those terms.
The noble and learned Lord, Lord Silkin, made a point about the words:
"by reference to such considerations as appear to him to be appropriate".
All I would say is that that is at least something new inasmuch as what is in the existing legislation is entirely silent, and as I indicated earlier that provision would permit the board to make certain suggestions to the Secretary of State if that were necessary.
However, as I have said, I would most strongly resist the amendment. If I may say so, some of the comments which have been made have been wholly misconceived. I find references to English procedure dangerous for me, but I am advised, in response to the point made by the noble and learned Lord, Lord Elwyn-Jones, that there is a comparable power for England and Wales in Section 7 of the Legal Aid Act 1974 in relation to civil legal aid in England. There, again, I can point even south of the Border to something which supports the provision which is made here. However, I do not do that by way of praying in aid: I merely point out that it is not something which is foreign to statute south of the Border.
Lord Morton of Shuna: We do not seem to have progressed very much since 6th March. Subsection (2) seems to me to be in an entirely different frame of mind from Section 1(2) of the Legal Aid (Scotland) Act 1967, which says:
"Unless and until regulations otherwise provide, the proceedings in connection with which or, in the case of legal aid mentioned in subsection 5(b) below, in contemplation of which legal aid may be given, are proceedings …".
There is nothing there which gives a blanket power for the Secretary of State, if it appears to be appropriate, to do various things.
I thought that the purpose of the Bill—and perhaps I thought wrongly—was to improve the legal aid legislation and make it clearer and more appropriate. All that the noble and learned Lord the Lord Advocate seems to be able to say in defence of this subsection is that it has been in previous Acts. If I may say so, that is not a defence; it is just a statement that it has been there before—in which case, why do we need this Bill at all?
I also suggest that there is no power apparent in the Bill—and we went over this matter a fortnight ago—for the board to give the Secretary of State any advice. It is all the other way round: it is the Secretary of State who gives the board guidance, advice and directions. I regret that I cannot find the noble and learned Lord's answer satisfactory, and I must, therefore, ask that the opinion of the Committee be tested.
6.25 p.m.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 76.

DIVISION NO. 1

CONTENTS

Amherst, E.

Kilbracken, L.

Brockway, L.

Kirkhill, L.

Brooks of Tremorfa, L.

Lawrence, L.

Bruce of Donington, L.

Lloyd of Kilgerran, L.

Caradon, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

McNair, L.

Collison, L.

Meston, L.

Crawshaw of Aintree, L.

Mishcon, L.

David, B. [Teller.]

Morton of Shuna, L.

Davies of Penrhys, L.

Northfield, L.

Dean of Beswick, L.

Oram, L.

Denning, L.

Perth, E.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Ennals, L.

Evans of Claughton, L.

Prys-Davies, L.

Fisher of Rednal, B.

Ross of Marnock, L.

Foot, L.

St. Davids, V.

Gallacher, L.

Saltoun of Abernethy, Ly.

Galpern, L.

Seear, B.

Glenamara, L.

Selkirk, E.

Graham of Edmonton, L.

Silkin of Dulwich, L.

Greenway, L.

Somers, L.

Grey, E.

Stewart of Fulham, L.

Halsbury, E.

Stoddart of Swindon, L.

Hampton, L.

Strabolgi, L.

Harris of Greenwich, L.

Taylor of Mansfield, L.

Heycock, L.

Tordoff, L.

Hooson, L.

Turner of Camden, B.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Hylton-Foster, B.

Wells-Pestell, L.

Jenkins of Putney, L.

Wheatley, L.

John-Mackie, L.

White, B.

NOT-CONTENTS

Airey of Abingdon, B.

Glanusk, L.

Alexander of Tunis, E.

Glenarthur, L.

Ashbourne, L.

Hailsham of Saint Marylebone, L.

Auckland, L.

Belhaven and Stenton, L.

Harmar-Nicholls, L.

Beloff, L.

Home of the Hirsel, L.

Belstead, L.

Hooper, B.

Birdwood, L.

Kaberry of Adel, L.

Blake, L.

Kimball, L.

Boardman, L.

Kimberley, E.

Boyd-Carpenter, L.

Lane-Fox, B.

Brabazon of Tara, L.

Lauderdale, E.

Bruce-Gardyne, L.

Long, V.

Caithness, E.

Lucas of Chilworth, L.

Cameron of Lochbroom, L.

Lyell, L.

Campbell of Croy, L.

McAlpine of Moffat, L.

Carnegy of Lour, B.

Mancroft, L.

Cathcart, E.

Margadale, L.

Chelwood, L.

Maude of Stratford-upon-Avon, L.

Coleraine, L.

Colwyn, L.

Merrivale, L.

Cork and Orrery, E.

Mersey, V.

Craigavon, V.

Mottistone, L.

Davidson, V.

Mountevans, L.

Denham, L. [Teller.]

Mowbray and Stourton, L.

Digby, L.

Murton of Lindisfarne, L.

Dilhorne, V.

Pender, L.

Drumalbyn, L.

Peyton of Yeovil, L.

Elliot of Harwood, B.

Reay, L.

Elphinstone, L.

Reigate, L.

Elton, L.

Renton, L.

Forester, L.

Rodney, L.

Fortescue, E.

Sanderson of Bowden, L.

Fraser of Kilmorack, L.

Shannon, E.

1213

Skelmersdale, L.

Trumpington, B.

Swinfen, L.

Vickers, B.

Swinton, E. [Teller.]

Vivian, L.

Teynham, L.

Ward of Witley, V.

Tranmire, L.

Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.
6.33 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 52.
Page 14, line 35, leave out subsection (3).
The noble Lord said: As is normal in many of the clauses of this Bill, the subsection starts with the words "Subject to regulations", and the amendment is to leave it out. It says:
"Subject to regulations made under this section and to sections 22 and 23 of this Act, criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion of the first diet at which the accused has tendered a plea of not guilty".
This is another illustration of how the draftsman has no knowledge of the criminal procedure of the courts. It is not clear what "Subject to regulations" may mean, but the first diet at which the accused has tendered a plea of not guilty may happen about a year after the complaint has been served. One does not plead guilty if one is challenging the competence, the jurisdiction or the time within which the complaint is brought or the relevancy of the complaint; and these are all complicated issues which may make proceedings drag on for many months, if not years, before there is a question of a plea of guilty or of not guilty.
As an illustration, there was a case last week in the Criminal Appeal Court as to whether a time bar applied. That was a road traffic case in which the first attempt to serve a complaint was in March 1985; the man has not yet pleaded guilty or not guilty, and the matter has been to the Criminal Appeal Court. According to subsection (3) he would not get legal aid for that. He would get only representation, which is wholly inappropriate. I beg to move.
Lord Wheatley: There is no real excuse for the Government not knowing of the problems referred to by the noble Lord, Lord Morton of Shuna. These long delays arise out of a procedure introduced by this Government, or rather their predecessor, in the Criminal Justice (Scotland) Act 1980. You can have these preliminary hearings on primary points; a procedure we did not have before but which was introduced under that Act. That was an Act of this Government's predecessor. They should have been very much aware of that situation when framing this and of the difficulties which would arise, as referred to by the noble Lord.
The Earl of Selkirk: Are the Government wise to say that no advice is needed before pleading? One of the most important decisions in any case is whether to plead guilty or not guilty. In many cases it would be in the interests of justice to encourage people to plead guilty. It shortens the process, and in many cases it is the wiser course to take. One is leaving this entirely in the hands of an accused person, who is uninformed as to the processes of law or what they mean. Often
1214
advice on this vital issue may be of great consequence, and I wonder whether it is wise to allow legal aid or advice to come in only after that date. This is a point which requires more consideration than this subsection gives it.
Lord Denning: I should like to support the amendment. Quite often it is important for a man to have legal aid before he is called upon to plead. I cannot say anything about Scotland, but again I go back to the Widgery report. It would be impracticable to require applicants for legal aid to plead before their applications are considered, and so forth. At all events we should not have it in England, and I do not see why you should have it in Scotland.
Lord Elwyn-Jones: I should like to join this chorus of criticism. I would merely say that I should have thought that it was desirable to give the accused person the benefit of advice as soon as practicable. After all, counsel often advises a client to plead guilty if he is satisfied of his guilt and he is prepared to plead, and this would be a saving of the time of the courts.
Lord Foot: I very much hesitate to express any view about Scottish procedure, but my belief is that this clause might have exactly the opposite effect to that which is intended. If there were the same situation in the English courts I should suppose that the accused person would be advised by his solicitor to plead not guilty in order that he could get the legal aid certificate, and then perhaps change his plea at a later stage.
Lord Wilson of Langside: I find this provision somewhat puzzling, and I hope that the Lord Advocate will be able to explain it. The situation at least some years ago when I was last involved was that legal aid was immediately available before an accused appeared and tendered a plea. There may be some technical explanation, but it is difficult to comprehend what it might be.
Lord Cameron of Lochbroom: I should like, in as little detail as I can, to put your Lordships' minds at rest about the intention of this subsection. Perhaps the best way to do it would be to deal in two ways with the position under summary criminal proceedings. But, before doing so, perhaps I should make clear that this subsection is an important part of what we are intending in this part of the Bill. The arrangement whereby criminal legal aid shall not be available, subject to regulations and to Clauses 22 and 23 of the Bill (this is of some importance), is that it is not until the conclusion of the first diet for which the accused has tendered a plea of not guilty that criminal legal aid will become available. That is to assist in restricting the scope for abuse, because the accused will have to decide whether to plead guilty or not guilty before he knows whether or not he will receive criminal legal aid if he pleads not guilty.
Under present arrangements there is a risk that an accused will plead not guilty simply to increase his chances of receiving assistance in the preliminary proceedings. But what is intended here does not derogate from the protection of the accused when he chooses to plead not guilty and can justify his application for legal aid.

1215
Your Lordships will recognise that in Clause 22, particularly subsections (1)(c) and (d), there is provision for automatic availability of criminal legal aid in advance of the first diet for a person who is in custody. The point of concern to certain of your Lordships arises in relation to a person who is out on bail. Perhaps I can best explain what is within the Bill if I deal with that accused. He will, before he is required to plead at the first diet, be entitled to automatic legal aid if he is on bail for any identification parade. That is to be found in Clauses 21(4)(b) and 22(10)(a). If financially eligible under Clause 8, he would be able to receive advice and assistance.
I think I have already outlined that a person is not barred from obtaining legal advice and assistance prior to being entitled to criminal legal aid but would be entitled to receive advice and assistance on application to a solicitor about what steps he should take in connection with a prosecution before the first diet. That will take care of the point on which I fully realise noble Lords were entitled to seek an answer about whether he should plead guilty or not guilty. Furthermore, he would be entitled to assistance by way of representation for preliminary proceedings if the solicitor thought he was eligible under the regulations under Clause 9. If he is eligible for such assistance by way of representation, having decided to plead guilty to the charge, then he would receive it for all proceedings up to the final disposal of the case, including pleas in mitigation, continuance of the case for social inquiry report, and so on.
Furthermore it is the intention that for certain preliminary pleas of the kind which the noble Lord, Lord Morton, outlined (pleas to competency and relevancy) he would also be entitled under regulations to receive assistance by way of representation, though it is possible that in such circumstances—this is unlike the case where such asssistance would be available in connection with guilty pleas—it may require the board to give its approval to such assistance.
6.45 p.m.
Within the Bill there is already provision for assistance from legal aid, but in a different form from that which is comprehended within criminal legal aid in this part of the Bill. Perhaps I should say that, in relation to preliminary pleas such as those I have outlined, this could involve the use of counsel if the board gave approval or otherwise. That is often done at the moment under legal advice and assistance—for example, obtaining counsel's opinion.
This is not in any sense a clause which intends to cut out a person's right to legal aid. It is intended to make provision by way of a kind of legal aid different from what is customary at present. As I have said already, that is to restrict the scope for abuse. But it would not cut him out from representation in the kinds of areas where noble Lords were perfectly properly expressing concern that he would not be able to be represented if eligible.
Lord Wheatley: Is it not the case that under the system that the noble and learned Lord has just outlined the legally-aided person is not receiving
1216
advice from a solicitor or counsel of his own choice? He will be dependent upon a man who will be appointed for this particular job under the Bill and he will receive representation in that sense. But he will not receive legal aid and advice from the solicitor or the counsel of his own choosing. It is because of that difference that anxiety arises, in that, if it is a question of competency or relevancy of the complaints that have been issued against him, it is then that he wants the best possible advice from a man of his own choosing.
Lord Cameron of Lochbroom: I am advised, and it was my understanding, that this person will be able to go to a solicitor of his own choosing for advice just as is the case under the present legal advice and assistance scheme.
The Earl of Selkirk: May I ask for clarification? What do the words "subject to regulations" mean? Does that mean that any article in this Bill can be changed by regulation? That is what it appears to mean. The clause reads:
"Subject to regulations made under",
this section—that is, Clause 22. Does that mean that the actual statute is subjected to the regulations? It is important that we should know that.
Lord Cameron of Lochbroom: In a sense I have already answered this in what I said about subsection (2). The regulations which are made are those under subsection (2) and the extent and form of those regulations are focused within subsection (2). Indeed, as I am reminded, the regulations can make legal aid available, just as they might, in certain circumstances, be said to be restrictive.
Lord Ross of Marnock: But under this subsection the whole gist is to make legal aid not available. The only protection anyone will have is some possible change of derogation under the regulations that the Secretary of State may or may not produce, and in producing them he pleases himself, subject to,
"such considerations as appear to him to be appropriate".
It would appear to me to be right, if the Secretary of State is going to depart from this blanket refusal of legal aid, that this is the time to tell us.
I am perfectly sure the Government must have some regulations in mind. It will be far better if we can have a pledge that before the next stage of the Bill the intentions in respect of the regulations should be produced. It is no good the noble and learned Lord the Lord Advocate saying, "I covered this in our discussion on the last amendment." With all due respect, I listened to him—and I am not a layman, Scots, English, Irish or Welsh for that matter—but I did not understand a word that he said. That detracted from the nature and the power that we have given to the Secretary of State in subsection (2). He has the power to do what he likes and to refuse what he likes. Here we are with one or two back-benchers and two Scots—and half the Scots voted against the Government on the last occasion, from the other side of the Committee, anyhow. And Englishmen who have never had a word to say during the debate will come trotting into the Lobby.

1217
To my mind it is not good enough. The words used by the noble and learned Lord were, "what we are intending" and his first intention was, "to prevent abuse". That is the real purpose of this, and any good or any possible safeguard that is in this will come from regulations that we know nothing about, and we have not been told anything about them. Could the Lord Advocate try again?
Lord Cameron of Lochbroom: I am sorry that I did not make it clear earlier, but the terms of subsection (3) make it clear that the regulations and Sections 22 and 23 of the Act, so far as they apply to subsection (3), will in fact extend or may extend criminal legal aid. If one reads the subsection without those introductory words one finds that criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion, subject to regulations made under this section and to Sections 22 and 23 of this Act.
As I have pointed out, those sections in fact extend criminal legal aid in summary proceedings to procedures prior to conclusion of the first diet. It is true that they also deal with circumstances taking place after, but the effect of subsection (3) is to make criminal legal aid not available unless Clauses 22 and 23 or the regulations otherwise provide. In a sense, it is therefore a power which extends and not one which takes away.
Lord Morton of Shuna: This seems to me a very unsatisfactory reply. I am told we have to look at Clause 22(1)(c) and 22(1)(d) to find out where this helps us in Clause 21(3), which deals with the situation up to the time when the accused tenders a plea of not guilty. Clause 22(1)(d) does not seem to help because it applies to a person who has already tendered a plea of not guilty. Clause 22(1)(c) only helps the person in custody, and one hopes it is not the intention that the majority of people on summary complaints will be held in custody until they plead.
Clause 23 does not appear to help at all because it first deals with solemn procedure, which is not summary, and then where a person has obviously been found guilty or had pleaded guilty and the sheriff is considering a sentence of detention or imprisonment; so it seems to me that these sections do not really take us very far.
Perhaps I may remind the noble and learned Lord the Lord Advocate on the matter of legal aid advice and representation that he fought for and defended the provision in Clause 9(2)(e) that gives power to restrict the limit for representation to those people in receipt of supplementary benefit only. The purpose of this is apparently to prevent abuse. We keep on being told it is to prevent abuse; but what abuse is being talked about? Is it abuse for somebody who says to the Crown prosecuting him, "Prove it"? Is that abuse? Is it abuse for the solicitor investigating the case to investigate it, which he is not entitled to do if he is only doing representation, to find out what the evidence is before advising him whether to plead? If that is abuse and has to be stamped out, we are going to have very many pleas of not guilty to allow the solicitor to investigate the situation. I regret that I find the answer as unsatisfactory as before, and must test the opinion of the Committee.
6.56 p.m.
On Question, Whether the said amendment (No. 52) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 63.

DIVISION NO. 2

CONTENTS

Airedale, L.

Kilmarnock, L.

Attlee, E.

Kinloss, Ly.

Brockway, L.

Kirkhill, L.

Brooks of Tremorfa, L.

Kissin, L.

Bruce of Donington, L.

Lawrence, L.

Caradon, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

McNair, L.

Collison, L.

Meston, L.

Crawshaw of Aintree, L.

Mishcon, L.

David, B. [Teller.]

Morton of Shuna, L.

Davies of Penrhys, L.

Northfield, L.

Dean of Beswick, L.

Perth, E.

Denning, L.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Ennals, L.

Evans of Claughton, L.

Ross of Marnock, L.

Ewart-Biggs, B.

Saltoun of Abernethy, Ly.

Feversham, L.

Seear, B.

Fisher of Rednal, B.

Selkirk, E.

Foot, L.

Somers, L.

Gallacher, L.

Stewart of Fulham, L.

Galpern, L.

Stoddart of Swindon, L.

Glenamara, L.

Strabolgi, L.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Grey, E.

Taylor of Mansfield, L.

Hampton, L.

Tordoff, L.

Harris of Greenwich, L.

Turner of Camden, B.

Hatch of Lusby, L.

Wells-Pestell, L.

Heycock, L.

Whaddon, L.

Howie of Troon, L.

Wheatley, L.

Jenkins of Putney, L.

White, B.

John-Mackie, L.

Wilson of Langside, L.

Kilbracken, L.

NOT-CONTENTS

Airey of Abingdon, B.

Harmar-Nicholls, L.

Alexander of Tunis, E.

Home of the Hirsel, L.

Ashbourne, L.

Hooper, B.

Belhaven and Stenton, L.

Hylton-Foster, B.

Beloff, L.

Lane-Fox, B.

Belstead, L.

Lauderdale, E.

Boardman, L.

Long, V.

Boyd-Carpenter, L.

Lyell, L.

Brabazon of Tara, L.

Macleod of Borve, B.

Bridgeman, V.

Margadale, L.

Bruce-Gardyne, L.

Marshall of Leeds, L.

Cameron of Lochbroom, L.

Merrivale, L.

Carnegy of Lour, B.

Mersey, V.

Cathcart, E.

Mottistone, L.

Chelwood, L.

Mountevans, L.

Coleraine, L.

Mowbray and Stourton, L.

Colwyn, L.

Mutton of Lindisfarne, L.

Cork and Orrery, E.

Pender, L.

Craigavon, V.

Renton, L.

Davidson, V.

Rodney, L.

Denham, L. [Teller.]

St. Davids, V.

Digby, L.

Sanderson of Bowden, L.

Drumalbyn, L.

Shannon, E.

Elliot of Harwood, B.

Simon of Glaisdale, L.

Elton, L.

Skelmersdale, L.

Forester, L.

Swinfen, L.

Fortescue, E.

Swinton, E. [Teller.]

Glanusk, L.

Tranmire, L.

Glenarthur, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vickers, B.

Halsbury, E.

Ypres, E.

Resolved in the affirmative, and amendment agreed to accordingly.
7.4 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 53:
Page 14, line 42, leave out ("(so far as necessary)").
The noble Lord said: I shall be very short on this amendment. The provision calls for criminal legal aid to consist of representation by solicitors "so far as necessary". We discussed the point as regards civil legal aid on a previous amendment. "So far as necessary" seems unnecessarily restrictive. "Where appropriate" would seem to be a better form of words if the phrase is not left out entirely, as the amendment suggests. I beg to move.
Lord Cameron of Lochbroom: As the noble Lord has indicated, this is a phrase which is common to civil and criminal legal aid. I undertook to consider the wording with regard to civil legal aid. I shall give the same consideration to this phrase. It is right to say that it is a phrase which has appeared since 1949. I am not aware of it having given any difficulty in the granting of legal aid. I undertook to consider the wording last time and, equally, I shall consider it this time as well.
Lord Morton of Shuna: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 54:
Page 15, line 6, at end insert—
("( ) The grant of legal aid under the provisions of section 23 of this act shall without prejudice to the provisions of this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 105(5) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant; and the grant of criminal legal aid under the provisions of section 24 of this Act shall without prejudice to this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provision of sections 331A(3) and section 334(2A) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant.").
The noble Lord said: The purpose of the amendment is to provide that legal aid under Clause 23 should be available for the type of appeal that may arise prior to a plea of not guilty in a summary case. It is the type of appeal to which I referred earlier relating to jurisdiction, time bar or something of that nature. The purpose of this fairly long amendment is to provide that legal aid would cover such an appeal. I hope that the amendment will be acceptable. I beg to move.
Lord Cameron of Lochbroom: The Bill as drafted is intended to achieve the result which the noble Lord has indicated in this amendment. I am generally confident that the terms of Clauses 23 and 24, as they stand, secure that result but I am perfectly happy to look again at the terms of the Bill in the light of what he has just said and the examples that he has given.
I am always concerned, when one has particular examples, that by reference to the brocard inclusio unius exclusio alterius one may have done more damage than good. I should also say that if there were any doubt, there is the possibility that the Secretary of State could clarify the position by regulation under Clause 36(2)(c) by providing that such proceedings are
1220
not separate proceedings for the purpose of legal aid. I accept that we want to be quite clear that those fall within the provisions of the Bill, and if the noble Lord will accept the reassurance that I shall look at the Bill in the light of what is in the amendment, I hope that he will feel able to withdraw the amendment.
Lord Morton of Shuna: If the noble and learned Lord is going to adopt that friendly attitude, certainly. I assure him that I should not have put down the amendment if I had not thought that there was a possibility that the matter was not covered by Clauses 23 and 24. However, if he will look at it again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21, as amended, agreed to.
Clause 22 [Automatic availability of crimininal legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 55:
Page 15, line 24, after ("of;") insert ("or "(iii) where he is unfit to plead until his case is finally disposed of;")
The noble Lord said: This, again, is a fairly technical amendment and certainly is not a party political one. It appears that there is an omission from Clause 22 of the situation where a person is unable to plead, and the purpose of Amendment No. 55 is to cover that situation. Somebody may well be unfit to plead through mental illness, and that situation does not seem to have been covered. I beg to move.
Lord Cameron of Lochbroom: I entirely accept the desirability of the result which the noble Lord wishes to achieve, but in this instance I would reassure him that his amendment is not necessary. Clause 22(1)(c)(i) provides that a person in custody on a summary charge is eligible for automatic legal aid,
"until the conclusion of the first diet at which he tenders a plea of guilty or not guilty".
If the accused is unfit to plead, then by definition that terminus will not be reached and he will continue to be eligible for automatic legal aid until his case is finally disposed of. With that explanation, perhaps the noble Lord will wish to withdraw the amendment.
Lord Morton of Shuna: I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 56:
Page 15, line 25, after ("custody") insert ("or liberated by the police in terms of section 8 of the Bail etc. (Scotland) Act 1980")
The noble Lord said: This is an amendment which, I hope, has more merit to it. The purpose is to add after the word "custody", in line 25, the words,
"or liberated by the police in terms of section 8 of the Bail etc. (Scotland) Act 1980."
The position under the 1980 Act is that persons are released by the police on giving an undertaking to attend the court and are treated as notional custody cases. The intention of the Bail etc. (Scotland) Act was that people should not be detained in police stations awaiting appearance in court if that was at all possible. But it did not reduce the seriousness of the crimes with

1221
which persons were charged. These people are, in some views, technically in custody and they should, even if they have been released under Section 8, have the benefit of the provisions of subsection (1)(d), which is what the amendment is designed to achieve. I beg to move.
Lord Cameron of Lochbroom: I have some difficulty in understanding this amendment as it is presently proposed, because it appears in a sub-paragraph which requires a person to be in custody and to be being prosecuted under summary procedure where he has already tendered a plea of not guilty. I suspect that what the noble Lord probably had in mind was for this to be placed in sub-paragraph (c), but even if that be so I cannot agree with the intention behind the amendment.
Since the introduction of criminal legal aid, it has been thought right to make special provision for the representation of persons held in custody. The reasons for this are obvious, and the present Bill continues that special provision. But a person who, having been arrested, is then liberated by the police under Section 8 of the Bail etc. (Scotland) Act is, of course, not in custody any more than a person who is granted bail by the court is in custody. In general, I can see no reason why he should be treated as if he is. Such a person could, of course, be able, if he were eligible, to obtain advice and assistance from a solicitor, and if he pleaded not guilty to apply to the board for legal aid.
However, that said, I take the point that it might be said that, in some circumstances, the time available to a person who has been liberated by the police after giving an undertaking to appear in court next day, or shortly thereafterwards, may be so short, in practice, as to make it difficult for him to consult a solicitor in the normal way, and in such cases I can see that it might be appropriate to make legal aid available through the duty solicitor.
I should like to make some further inquiry into this, and if it appears that any changes in the terms of the Bill may be needed we shall consider bringing forward an appropriate amendment at a later stage. But I repeat that I do not think it can be appropriate to make the services of the duty solicitor available to every person who obtains interim police liberation, because, as I think the noble Lord will know, it is sometimes given without any undertaking at all in relation to appearance in court. But I am grateful to the noble Lord for having brought this matter before the Committee.
Lord Morton of Shuna: In those circumstances, and with that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 57:
Page 15, line 35, at end insert ("and in connection with any appeal to the High Court of Justiciary under the provisions of section 334(2A) of the Criminal Procedure (Scotland) Act 1975").
The noble Lord said: This is an amendment which I think is important, and I hope that it will be accepted.
1222
It is to add at the end of line 35 the provision that criminal legal aid will cover any appeal to the High Court. Subsection (2) provides that criminal legal aid made available should also be available in connection with any steps or representations in connection with an application for liberation, but, of course, there are also situations prior to the plea of guilty or not guilty where there may be an appeal. I am sure it is the intention of the Government that legal aid will cover that, but it does not appear to have been specifically covered and the reference to applications for liberation suggests that the intention is that it should not be covered. I beg to move.
Lord Cameron of Lochbroom: I accept that the automatic legal aid under Clause 22 should be wide enough to cover such appeals which derive from a section of the 1975 Act which gives the right of appeal to the High Court against a decision on a preliminary objection in summary proceedings. It may be—and, indeed, I would accept—that Clause 22 as it stands may not achieve that result since, as the noble Lord has said, an appeal can normally be taken only prior to the accused stating how he pleads to the charge. That being so, I should like to consider the position further. I am not entirely satisfied that it would be appropriate to do it by the means which this amendment suggests, and I will bring forward any necessary amendment at a later stage to make the matter clear.
The Earl of Selkirk: May I ask my noble and learned friend whether I am right in saying that in solemn procedure legal aid will be automatic and in any case coming before the High Court of Justiciary? I understand that this Bill is very complicated, marred by masses of regulations, and it is extremely difficult to know how far this goes, But I understood that that position, at least, was clear.
Lord Cameron of Lochbroom: Perhaps I may respond to my noble friend and in so doing correct something that I think I mistakenly stated earlier, because appeals of this kind are taken after the accused has stated how he pleads to the charge under the necessary act of adjournal. It is one of the curiosities. But that does not in any way cause me to change what I have already undertaken to do.
In response to my noble friend, perhaps I should say that we are talking here about a right of appeal to the Court of Criminal Appeal in relation to summary proceedings on a preliminary matter. That is not covered by the terms of Clause 25. We are not dealing, however, with the issue of the provision of legal aid in solemn procedure before the High Court itself. I hope that that clarifies the position for my noble friend.
Lord Morton of Shuna: Subject to the observation that there are appeals to the High Court before a plea of guilty or not guilty is tendered, and in the light of the noble and learned Lord's remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 [Power of the court to grant legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.58:
Page 15, line 39, after ("procedure") insert ("and shall continue to be available notwithstanding the reduction of the procedure to summary proceedings")
The noble Lord said: This amendment is designed to cover the situation where proceedings start off as solemn proceedings and then the Crown decides to reduce them to summary proceedings. If legal aid is granted to the person being prosecuted under solemn procedure, the same legal aid certificate should cover the proceedings as they continue as summary. I beg to move.
Lord Cameron of Lochbroom: I must ask the Committee not to accept this amendment. The view which I suggest is a proper one is that where there has been a material change in the reduction of a charge to summary procedure, it is appropriate that the situation should be reviewed and decided in accordance with rules relevant to summary procedure. It may be that such cases are among the comparatively serious ones which are dealt with by summary procedure, but this will not always be so. There is really no good reason why they should not be tested by the same criteria as apply in other summary cases. These are primarily interests of justice and financial hardship.
I suggest that it would be unfair if all summary cases were not dealt with according to the same criteria. If the accused is in custody he would of course have the assistance of the duty solicitor both for preliminary proceedings and for the preparation of his application for criminal legal aid. In these circumstances, I cannot accept this amendment, and in the light of what I have said I would invite the noble Lord to withdraw it.
Lord Morton of Shuna: I have no wish to divide the Committee on this amendment. Subject to the remark that I may possibly return with this later, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 59:
Page 16, line 4 at end insert ("or
("( ) where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented").
The noble Lord said: This amendment gives the court power:
"where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented".
Circumstances may well arise, such as where somebody who has not consulted a lawyer turns up on a fairly serious charge involving children as witnesses who would otherwise be subject to cross-examination by the accused, or even an accused with a speech impediment, in which the sheriff or the magistrate may wish for the good of the court and for other people mentioned that the accused person be represented. There should be power for this to be able to happen. I beg to move.
Lord Cameron of Lochbroom: I can understand the reasons which are put forward for suggesting that summary courts should be given this reserve power. We did consult the sheriffs, among others, on the desirability of including a power which would be similar to that in Section 2(4) of the Legal Aid (Scotland) Act 1967. They made it abundantly plain that they would not welcome it. Indeed they took the view that it would be quite inappropriate for them to be involved under new arrangements in considering applications for legal aid. Clearly this would prove particularly awkward in cases where an accused might with good reason have been refused legal aid by the board, and in the event it would clearly be undesirable if two separate ways of applying for legal aid were practicable. In general it seems reasonable that those who wish legal aid should have to apply for it in the normal way. There is already on the statute book the section to which I have referred. I understand indeed that under the present arrangements very little use has been made of it.
If after the experience of the new arrangements the courts were to find that it would be useful for them to be able to authorise a solicitor to act for the accused in specified circumstances, I am sure that my right honourable and learned friend the Secretary of State would be prepared to consider whether assistance by way of representation might, for example, be provided by the duty solicitor.
I make it clear that there is still provision in an appropriate case where an application has not already been made, if the court permits it, to adjourn to allow such an application to be made. But the amendment as it is presently framed is clearly inappropriate and inconsistent with the new arrangements. I therefore cannot accept it as it stands for the reasons stated.
Lord Morton of Shuna: I regret that the noble and learned Lord the Lord Advocate seemed entirely to have missed the point of the amendment. It was not a case where the man would make an application; it is where the sheriff would consider it in the interests of the witnesses or the court that the man should have representation. The noble and learned Lord has not really dealt with that situation. It is where you have, say, a person accused of molestation of children. You do not want him to cross-examine the prosecution witnesses who are children. That is the type of situation which the amendment has in mind.
Lord Cameron of Lochbroom: My response to that must be a slightly different one. If an accused person chooses to represent himself—I remind the noble Lord of the convention to which he referred earlier in debate this afternoon—the court is not entitled to force representation upon him. I understood the point that the noble Lord was putting forward. This matter has been discussed with the sheriffs and they are not willing to take it on.
Lord Morton of Shuna: Under those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 60:
Page 16, line 19, at end insert—
("(3) Any grant of criminal legal aid under the provisions of subsection (1)(a) of this section shall, without predudice to section 21(4) above extend to respresentation of all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 101(5) of the Criminal Procedure (Scotland) Act 1975 including any appeal by way of Bill of Suspension against the granting of any incidental warrant.").
The noble Lord said: This is another of the amendments which is intended to cover the question of the incidental appeal. I presume that the remarks of the noble and learned Lord the Lord Advocate on previous amendments of this type would cover it. I beg to move.
Lord Cameron of Lochbroom: I am happy to give that assurance.
Lord Morton of Shuna: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [Legal aid in summary proceedings]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 61:
Page 16, line 20, leave out from beginning to ("criminal") in line 22.
The noble Lord said: This is a fairly drastic amendment and I have no doubt that the noble and learned Lord the Lord Advocate will not be happy with it. It seeks to take out the first three lines, so that subsection (1) would begin:
"Criminal legal aid shall be available to an accused person in summary proceedings on an application made to the board".
It would remove the words "Subject to regulations" etc. That is the intention of the amendment. I beg to move.
7.30 p.m.
Lord Cameron of Lochbroom: I must make it clear that I cannot ask the Committee to accept this amendment. It follows on from Clause 21(2), and in the circumstances, and as I have already made my position clear on that matter, I ask the noble Lord to withdraw his amendment.
Lord Morton of Shuna: We have already virtually had a vote on this matter and so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Renton): Before calling Amendment No. 62, I must point out that if it is agreed to, I cannot call Amendments Nos. 63 and 64.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 62:
Page 16, line 28, leave out from ("dependants") to end of line 40.
The noble Lord said: Amendments Nos. 62, 63 and 64 are all connected. Clause 24 provides that legal aid is to be granted if the board is satisfied:
"(a) after consideration of the financial circumstances of the accused person"
and,
"(b) that in all the circumstances of the case it is in the interests of justice".
1226
Subsection (3) provides that regulations
"may prescribe factors to be taken into account … in determining whether it is in the interests of justice".
The purpose of Amendment No. 62 is to make legal aid available only on the basis of the financial circumstances of the accused person. In my submission, such is the appropriate test. It would mean leaving out the whole issue of the interests of justice, because it is in the interests of justice that somebody who is incapable but without financial hardship should be defended or represented when facing a criminal charge. It is, therefore, unnecessary to cite all the factors that may render the question of interests of justice necessary, because representation is by itself in the interests of justice if the person concerned wishes such representation.
If Amendment No. 62 does not appeal to the Committee, then Amendment No. 63 is an attempt to narrate what might be the interests of justice. It states in paragraph (a) that legal aid shall be provided where,
"the accused supplies with his application"Ĥ
that is, of course, for the board or whichever unknown person will be dealing with the matter on behalf of the boardĤ
"a statement of his defence which if held true by the Court would be bound"Ĥ
and I emphasise the word "bound"Ĥ
"to result in the accused's acquittal of all or any of the charges libelled or in the deletion of any material part of a charge, or"Ĥ
and paragraph (b) continues
"it appears on the basis of information supplied … that the accused will not be able to follow the proceedings".
Paragraphs (b), (c), (d) and (e) are really restatements of the Widgery committee's basis of whether legal aid should be granted. The addition of (a) is perhaps the most vital alteration: What is there is, in my submission, appropriate, because if the court would be bound if the defence was accepted
"to result in the accused's acquittal",
then he must have a probable cause and he must have the interests of justice in favour of him being represented.
Subsection (3) states:
"The Board may determine that it is in the interests of justice that legal aid be granted in such other circumstances as they see fit",
That is an attempt to define the matter in the Bill. In my submission, it is in the primary legislation that it is appropriate, if the interests of justice are to be defined anywhere, that the factors should be defined—and not in regulations.
Amendment No. 64 is to leave out the power to make regulations prescribing factors. The effect of that amendment would be to leave the legal aid situation as it is at present; that the body deciding whether legal aid should be granted must consider whether it is in the interests of justice, and it has that power of consideration without anybody telling it what are the factors that it must take into account when it makes up its mind. My belief is that the best answer is Amendment No. 62, and it is that amendment that I now beg to move.
Lord Cameron of Lochbroom: I shall follow the noble Lord in speaking to all three amendments. In

1227
providing that summary criminal legal aid will be available only where that is in the interests of justice, the Bill merely preserves the effect of the existing legislation. It does not seem reasonable that legal aid should be available for any and every offence, including, for example, minor motoring offences where the accused would often not wish even to appear on his own behalf. On the other hand, there is no disagreement between myself and the noble Lord opposite that legal aid should be provided for financially eligible accused who face grave charges that put them at serious risk of loss of liberty or livelihood.
It is for that reason that the interests of justice criterion is not applied for solemn procedure cases, since a case under solemn procedure is by definition a grave one. Conversely, the fact that the interests of justice criterion does not apply to solemn procedure does not in itself provide a rationale for not applying it to summary cases.
The chief criticism of the existing application of the interests of justice tests by the courts has been inconsistent interpretation. In summary courts, award rates for summary legal aid vary from just under 60 per cent. to almost 100 per cent. Giving to the board the responsibility for applying the tests is designed to ensure that the tests are applied with a greater degree of consistency.
It seems necessary to define what factors are relevant when applying the tests of interests of justice in order to help the board to achieve such consistency. At present that is done under the Bill by regulations that are subject to affirmative resolution, and hence to parliamentary scrutiny. That would be an advance on the present position, where criteria have been issued to district courts but only as non-statutory guidance. I therefore strongly suggest that the interests of justice tests must be preserved for summary procedure and that the factors determining them should be defined to ensure consistency.
I accept that the factors determining the interests of justice are sufficiently important to require parliamentary scrutiny. However, it must be possible to alter them by regulations subject to the affirmative procedure in order to give the necessary flexibility that will allow them to be changed where practical experience demonstrates the need for that, or to take account, for example, of changes in criminal procedure.
In view of the concern that has been expressed on this matter, my right honourable friend the Secretary of State is prepared to consider setting out the factors in the Bill itself, with provision for amendment by regulations subject to affirmative resolution. Since the preparation of such an amendment, which will take account of the views expressed on consultation and also in your Lordships' House, may take some time, it will have to be made in another place.
The Secretary of State has not yet decided what the factors should be, although they may include some items that are similar to those contained in Amendment No. 63. I wish to say that as a result of the consultations undertaken last year, my right honourable friend has decided that the grant of legal aid should not depend on the accused's criminal record.
1228
In the light of those statements, it may be that the noble Lord will feel able to withdraw his amendment. I must make it clear that I resist the loss of the interests of justice criteria. I believe that I have made a reasonable response to the views that have been expressed forcibly in the Committee and in previous debates.
The Earl of Selkirk: May I draw attention to this aspect? You appoint a board to look after matters. You then have regulations explaining what the "interests of justice" are. Is that not precisely what the board is set up for? If the board does not know what are the interests of justice, then you want another board. I feel that subsection (3) goes a little far in demonstrating the complete domination of the board by the Secretary of State. That is a criticism which runs right through this Bill and I must say that I find the position unacceptable.
Lord Foot: May I say a few words in support of that proposition? Subsection (3) does not enable the Secretary of State merely to advise the board or give the board guidance as to how it should interpret the words "in the interests of justice". It says that the Secretary of State "may prescribe" the factors, which will be absolutely binding. There will be no discretion left in the board at all.
There is another matter which I hope the noble and learned Lord will be prepared to consider. As I understand it, he said it was the intention to prepare regulations to try to indicate what is considered to be "in the interests of justice". However, the noble Lord, Lord Morton, in commending Amendment No. 63, said that these largely followed the Widgery conditions. I do not think that is quite right. I think that, as a matter of fact, the noble Lord's amendment is an improvement on the Widgery conditions. One of the considerations in the Widgery list is whether the accused person is in any serious danger of losing his liberty. That is a question which has caused, in my experience, very considerable difficulty in the magistrates' courts in England and Wales, because it is often very difficult to ascertain before the case is heard whether the person is in such risk or not, particularly as you do not know whether he has any previous convictions, and so on. Therefore, I hope that when these regulations appear in the other place they will be an improvement on the Widgery conditions.
Lord Cameron of Lochbroom: May I respond to what the noble Lord, Lord Foot, has just said? I was trying to make clear that factors which would be relevant for the board to consider in relation to an application for legal aid will, in fact, be incorporated within the Bill itself. However, allied to that would be a further provision for power to alter those factors by regulations which will be subject to affirmative resolution. I make clear that I have noted what the noble Lord said about the factors suggested. I have some criticisms of them but it is valuable to have them to study before my right honourable and learned friend considers his position in another place.
Lord Morton of Shuna: It clearly would be better to have the factors if we must have factors in the Bill. On

1229
the basis of the Government's position I ask leave to withdraw the amendment. If it is in order to do so, I state now that I shall not be moving Amendments Nos. 63 and 64.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 and 64 not moved.]
7.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 65:
Page 16, line 40, at end insert—
("( ) The Board shall provide a method of appeal against the refusal by the Board of Criminal Legal Aid under this section.")
The noble Lord said: We dealt with this at our previous sitting. It is absolutely essential that there should be some method of appeal against the refusal of legal aid. Since the previous Committee sitting on this Bill it has come to my notice that permanent staff of the legal aid authorities have provided to the Home and Health Department a method of appeal that could readily be operated with no material delay so that appeals against refusal of legal aid would be decided within a week. It is inappropriate that there should be no right of appeal.
One of the difficulties of the previous system was that sheriffs were refusing legal aid and there were complaints that their decisions were wrong. What will happen now is that faceless reporters will make these decisions with nobody having the right of appeal. At least on recent occasions where a sheriff gave reasons why he was not granting legal aid the results were dealt with by the criminal appeal court. It is difficult to see how anyone can deal with this unless there is a method of appeal against refusal of legal aid. I beg to move.
Lord Cameron of Lochbroom: In a sense I have already set out the Government's position on this matter. At present there is no appeal against the refusal of criminal legal aid and I am not aware of that fact in itself having given rise to concern. The issue, which has always been of extreme concern to those who have commented upon the consultation paper, was that delays in the granting of legal aid should be avoided at all costs. A review of procedure would be most likely to lead to delays even on the basis of a fairly rapid review procedure.
I am advised that certain proposals were put forward about a suggested review procedure, but I am told that what was proposed was not practical. The review procedure which is likely to lead to delays and the postponement of trial dates cannot be in the interests of the accused or the general interests of the public. The issue which has given rise to the change in the procedure for granting applications for criminal legal aid is to secure consistency. We are having an independent board with legally qualified persons instead of a multitude of courts. The board will be able to issue guidance to its reporters to secure that there is consistency. Indeed, it will be able to consider difficult cases at first instance in order to ensure consistent standards in dealing with all applications, including those granted at first application.
I am not persuaded, I regret to say, that it is essential to provide a method of appeal. Certainly it is provided
1230
for in civil cases; indeed, I have already explained about that in our earlier discussions. However, I should point out that, leaving aside the consistency which we are hoping to achieve by the use of the board and the internal guidance which a board can give, there is of course in criminal cases no other party to contest the award of legal aid, since it would be quite inappropriate for the procurator fiscal to do so.
Where legal aid is refused it may well be open in appropriate cases for the accused to submit a fresh application if he can produce relevant new material in support of it. Apart from that, I cannot accept the suggestion in this amendment that there shall be a method of appeal provided against refusal of criminal legal aid by the board.
The noble Lord opposite talked about a faceless reporter, but if the reporter is faceless, then is the Appeal Committee to be any the less faceless—if one uses the term "faceless"? No, one has to trust the judgment of a properly appointed reporter, with the provision that the board may give proper guidance in these cases in order to secure expedition. Therefore I strongly resist this amendment.
Lord Morton of Shuna: This is a wholly unsatisfactory position, but I do not wish to take up more of the Committee's time. Who says that this scheme which was produced by the legal aid authorities is impracticable? If it is only the Home and Health Department, have they told the people who put forward the scheme that it is impracticable? The scheme's proponents certainly consider that it is perfectly practicable. My understanding is that nobody has ever asked the writer of the scheme any questions whatever about it. I think that the best I can do is to say that I may well return to this matter at Report stage and ask leave now to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 [Legal aid in appeals]:
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 66:
Page 17, line 26, after ("otherwise)") insert ("and to all appeals by way of Bill of Suspension or Advocation.").
The noble Lord said: Perhaps I can deal with this amendment in shorthand and say that this is another of the appeal provisions which is perhaps covered by what the noble and learned Lord the Lord Advocate said he would do about these appeals. I trust that this is covered by the undertaking that the noble and learned Lord the Lord Advocate gave about appeals.
[Amendment No. 66 not moved.]
Clause 25 agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 67:
After Clause 25, insert the following new clause:
("Accused person's right.
. Where a doubt arises whether criminal legal aid should be made available to an accused person the doubt shall be resolved in that person's favour.").
The noble Lord said: This is a clause which I am informed is in the English and Welsh legal aid

1231
provisions. It only gives the balance of doubt in favour of the accused if there is such a doubt. I beg to move.
Lord Cameron of Lochbroom: I explained at Second Reading that there are some very significant differences both in criminal procedure and in the arrangements for criminal legal aid north and south of the Border. I cannot claim to be familiar with Part II of the Legal Aid Act 1974 and the way in which it operates, but it is quite clear that there would be dangers in seeking to import piecemeal elements of the English arrangements into the Scottish ones or, I suppose it might be said, vice versa.
Scotland has operated successfully without such a provision since the inception of legal aid, and I see no reason for importing it now. In Scotland the court or, under the new arrangements, the court or the board must be satisfied that certain criteria are met. It seems right that the onus should be on the applicant to produce the relevant material so to satisfy the court or the board.
I do not know how the English arrangements operate in practice, but in a Scottish context there would seem to be risks in incorporating a benefit of the doubt provision. Quite apart from the inconsistency with the requirement on the body making the decision to satisfy itself on various points before granting an application, arguably it could encourage less precise applications on the basis that the applicant should be given the benefit of any doubt. It is clearly more satisfactory that the decision-making body should not grant a certificate unless it is satisfied that the relevant criteria are met. I remind the Committee that we are hoping to incorporate certain factors in relation to the grant of criminal legal aid within the Bill itself. I suggest that this provision from English statute could not readily be accommodated in the Scottish arrangements, and accordingly that it should be rejected.
Lord Wheatley: I should like the noble and learned Lord the Lord Advocate to be more explicit about the reasons why this could not be done. It would seem that this is another instance of an accused person not enjoying the benefit of the doubt. Instead of dealing with technicalities of procedure, I think that this is a matter which ought to be decided on broad general principles. If, therefore, it is the broad general principle in England and Wales that if there is a doubt the applicant should get the benefit of it, then I fail to see why this principle should not apply equally in Scotland.
I have to repeat the question I have posed time and again during the passage of this Bill. What is it that exists in England which enables certain things to be done which does not exist in Scotland? What are the difficulties in the Scottish procedure which make a principle which can be adopted in England—a procedure which the noble and learned Lord the Lord Advocate confesses he knows nothing at all about—a principle which would not work in Scotland? I ask why.
Lord Cameron of Lochbroom: With respect to the noble and learned Lord, I thought I had indicated the principle upon which the Scottish arrangements have operated in the past and will continue to do so;
1232
namely, that the applicant brings before the decision-making body, which is currently the Law Society acting through the Central Legal Aid Committee and its committees, material upon which they may grant an application having regard to the criteria set out. I pointed out that if one sets out the criteria, then in my submission there is no need to add a benefit of the doubt principle in addition, particularly since, as I have made quite clear, it could encourage less precise applications on the basis that the applicant would then be given the benefit of any doubt.
If there are criteria and these are spelled out in the Bill, it seems appropriate to require the applicant in the first place to satisfy the board that he falls within those criteria. The benefit of the doubt, in my submission, is not a principle which need be brought into the Scottish arrangements.
Lord Morton of Shuna: I had thought that up to now criminal legal aid was not granted by the Law Society at all but was granted by the court, except in the case of applications for criminal appeals.
Lord Cameron of Lochbroom: I apologise to the noble Lord. My mind wandered to an earlier part of this Bill. The noble Lord is absolutely right; it is of course the courts.
Lord Morton of Shuna: This only applies to criminal cases, as is obvious. If the person is given the benefit of the doubt as to whether or not he is guilty, it is very difficult to see why he should not be given the benefit of the doubt when one is considering at an early stage whether he has a reasonable chance, if I can put it in non-technical language, of succeeding in beating off the accusation of the Crown that he is guilty. I really cannot see why it can be fair that in England, where a doubt arises as to whether criminal legal aid should be made available to an accused person, the doubt should be resolved in that person's favour, yet the same citizen of the same United Kingdom who happens to live in Scotland should have the onus placed the other way. It seems to me to be a totally unsatisfactory situation, to which I may return at a later stage, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 68:
After Clause 25, insert the following new clause:
("Legal Aid Appeals Committee.
.—(1) In the event of an application for criminal legal aid being refused, an accused person shall have the right to appeal to the "Legal Aid Appeals Committee".
(2) The Legal Aid Appeals Committee shall comprise not less than 5 persons appointed by the Lord President of the Court of Session.
(3) The Legal Aid Appeals Committee shall have the powers to make criminal legal aid available in the same way as it could have been made available by the Court or the Board.").
The noble Lord said: This is another method of attempting to give a right of appeal for criminal legal aid, and in the light of what the noble and learned Lord the Lord Advocate has said earlier I do not propose to move the amendment in the assurance that one or other of my amendments may come back at Report stage.
[Amendment No. 68 not moved.]
8 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 69:
After Clause 25, insert the following new clause:
("Prosecution under 1975 Act.
.—(1) In all cases in which the High Court of Justicary authorises a new prosecution of a person under the provisions of sections 255 or 452B of the Criminal Procedure (Scotland) Act 1975, and such a prosecution is instituted against him, that person shall be entitled to criminal legal aid in terms of this Act.
(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the court in which such a prosecution is instituted, and the court shall grant his application forthwith without regard to his resources or to any other criteria.").
The noble Lord said: This is one of those provisions to provide for legal aid where the High Court authorises a new prosecution. It may be that under the old prosecution you did not have legal aid, but something went wrong with that and it went on appeal to the court which ordered a retrial. It would seem appropriate in these fairly new proceedings in Scotland of a retrial that there should be an automatic right to legal aid. I beg to move.
Lord Wheatley: If I speak now, it might give the Lord Advocate the opportunity of dealing with the points raised in favour of this amendment. I have some personal experience of this procedure which was introduced under the Criminal Justice Act 1983 of allowing new trials to take place in given circumstances in Scotland. This situation presupposes that the accused person has been found guilty and that for some reason or another the Court of Appeal has found that there has been a miscarriage of justice, because it is a prerequisite to allowing the Lord Advocate to re-indict and therefore bring about a new trial that he is so advised that there has been a miscarriage of justice, which is the only remaining ground of appeal so far as criminal appeal is concerned.
It may take various forms. I have presided over courts which have ordered such a new trial; and the manifestly clear case which we have had to deal with more than once is when the trial judge in an indictable case has given a misdirection in law to the jury. There is nobody at fault except the judge in that case. The prosecution has not been at fault; the defence has not been at fault; and, most particularly, the accused has not been at fault. If in those circumstances, instead of quashing the conviction, which is another alternative, the criminal appeal court puts aside the verdict of the court below and authorises the Lord Advocate to bring a fresh indictment, if so advised, in that situation it seems manifest on any aspect of justice that the accused who is innocent of the situation which has arisen should be provided with legal aid automatically. For that reason and by way of that illustration, I ask the Lord Advocate to accept this amendment.
Lord Cameron of Lochbroom: I have listened with great care to what both the noble Lord and the noble and learned Lord have said. The situation is that the indictment in the new trial may not be in precisely the same form as the indictment in the original trial. I have personal experience of that, where, for instance, a murder charge was, to be fair, reduced by the jury on conviction to culpable homicide, and it was a charge of culpable homicide which was then on the indictment
1234
in the new trial. In some sense, if that is so, and that can arise in regard to the new indictment, it would suggest that there should be a fresh application for legal aid if it be a matter for the board rather than the court. If it is in the High Court or solemn procedure, it will follow the normal procedure whereby the court would grant legal aid.
I should like to consider the position in the light of what has been said. I am not entirely persuaded that this is a case where there should be automatic grant. I accept, however, that these are matters which I trust will be comparatively rare. With that assurance, perhaps the noble Lord might at this stage wish to withdraw the amendment. There are certain difficulties which I conceive of.
Lord Wheatley: Before the noble Lord withdraws the amendment, may I say a word or two in answer to that point? I remind the Lord Advocate, because we have both been involved possibly in the same case where this has arisen, that, while it is a matter for a new indictment when the Lord Advocate has been authorised by the appeal court to formulate a new indictment if so advised, so far as the accused person is concerned he has been put in double jeopardy. In the first place, you could say it was his own fault because he may have committed the offence, but on the second occasion he is brought to trial not because of anything he had done but ex hypothesi, taking the situation I have given, as a result of a mistake by the presiding judge. That is an entirely different situation, and anyone who is put in that position in all fairness should certainly be given legal aid. I trust the noble and learned Lord will keep that in mind when he is reconsidering the position.
Lord Morton of Shuna: In the light of the Lord Advocate's position, I beg leave to withdraw that amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 70:
After Clause 25, insert the following new clause:
("Legal Aid in High Court.
.—(1) Where the Secretary of State has exercised his powers under section 263 of the Criminal Procedure (Scotland) Act 1975 to refer the case of a person to the High Court of Justiciary, such a person shall be entitled to criminal legal aid in terms of this Act.
(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the Board, which shall grant his application forthwith without regard to his resources or to any other criteria.").
The noble Lord said: I am sure this is an amendment which the noble and learned Lord will accept because it saves him money. There is an error, for which I apologise. It should be Section 263A of the Criminal Procedure (Scotland) Act which provides for the Lord Advocate's reference, and in the case of a person who has been tried on indictment and acquitted, the Lord Advocate can refer a point of law to the High Court and the person acquitted has a right to be heard at the appeal. The provisions of this amendment are that he should get legal aid for it. I imagine that would save the Lord Advocate money, because if he is represented, Section 263A(4) provides that the cost of representation under this section shall be paid by the Lord Advocate. I beg to move.
Lord Cameron of Lochbroom: I agree that a person whose case is referred to the High Court by the Secretary of State for consideration under Section 263 of the 1975 Act should be eligible to apply for criminal legal aid as for an appeal. It is not clear that the Bill presently allows for this, and I shall, if on consideration clarification seems to be needed, bring forward an appropriate amendment to Clause 25 at a later stage.
Lord Morton of Shuna: In that situation, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Employment to which Part V applies]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 71:
Page 17, line 36, at end insert ("by regulations made under this section").
The noble and learned Lord said: This is a drafting amendment. It makes clear that the prescription of any particular cases to which it is intended the provisions of Clause 26(1)(b) are to apply is to be made by the Secretary of State by means of regulations. I beg to move.
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clauses 27 and 28 agreed to.
Clause 29 [Legal aid in certain proceedings relating to children]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 72:
Page 20, leave out lines 4 and 5.
The noble Lord said: This clause deals with legal aid for children. It provides for legal aid to be available on application to the sheriff,
"if the sheriff is satisfied that it is necessary in the interests of the child that legal aid be made available".
There then follows the financial provision. In my submission, when dealing with children, one should not have to consider that it is necessary in the interests of the child. It would always be in the interests of the child that legal aid should be made available if the financial criteria are fulfilled. This is the reason for the amendment to leave out lines 4 and 5. I beg to move.
The Earl of Selkirk: I am looking forward with much interest to my noble and learned friend explaining why, in some cases, children will not need some kind of professional representation. I find it intolerable that children should have no representation at all and yet be expected to take an intelligent part in the proceedings.
Lord Cameron of Lochbroom: The provision that the amendment seeks to delete merely repeats a provision already contained in Section 1(6)(a) of the 1967 Act. It refers to the interests of the child because it is concerned with appeals relating to children's hearings. It is a fundamental principle of children's hearings, and indeed a statutory requirement, that the principal concern should be the interests of the child.
1236
Therefore, the interests of the child should also be taken into account in connection with proceedings before the sheriff arising out of referrals and appeals from the children's hearings.
There is also the consideration that it is conceivable that the interests of the child may clash with the interests of his parent, for example, if the referral to the children's hearing was because he was in moral or physical danger at home. In such cases, the child's interests must be protected separately.
Subsection (4)(a) of Clause 29 makes it clear that even where the applicant is not the child, the child's interests must come first. I hope that what I have said will answer the problem mentioned by my noble friend. This is not a question of refusing legal aid to a child. What is involved is making clear that in the granting of legal aid it will always be the paramount principle that the interests of the child come first.
The Earl of Selkirk: That is not what the Bill says. There is nothing about the paramount interest of the child. It appears that you have to prove that the child has an interest. To my mind, the child always has an interest and, in most cases, is unable to express that interest personally. I would much prefer to see the word "interests" taken out.
Lord Morton of Shuna: The clause states,
"Legal aid shall be available under subsection 2(a)(ii) or (b) above on an application made to the sheriff if the sheriff is satisfied that it is necessary in the interests of the child that legal aid be made available and after consideration of the financial circumstances".
I understood from what the noble and learned Lord the Lord Advocate was saying that he was interpreting the word "and" as "or". That does not seem to be the case. In the hope that the noble and learned Lord will consider this again, I would ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 agreed to.
8.15 p.m.
Clause 30 [Legal aid in contempt proceedings]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 73:
Page 21, line 4, leave out from ("dependants") to end of line 7.
The noble Lord said: This is a special situation dealing with contempt of court, which is of course a serious offence. It is to take out of the provisions the question of the interests of justice. There cannot be a situation where the interests of justice do not require that there should be representation. It is always necessary, or at least advisable, that someone being dealt with for contempt of court should be represented. I cannot conceive of circumstances where it could be thought that it was not in the interests of justice that he should have representation. I beg to move.
Lord Cameron of Lochbroom: It has to be borne in mind that, like any criminal offence, there are degrees of gravity of contempt of court. I am aware of instances, as, no doubt, the noble Lord opposite is, where the contempt may have been committed and

1237
the court makes a finding, but the sentence passed by the court may amount to no more than an admonition. It would surely not be right that legal aid was automatically granted in such a case. On the other hand, I accept that there are severe cases when imprisonment is involved. All that I am attempting to provide is that the court should have a discretion in dealing with such cases using precisely the same criterion—the interests of justice—as is to be found elsewhere in dealing with criminal legal aid. It is, I suggest, appropriate that such a discretion should be retained to deal perhaps only with a minority of cases. I cannot therefore accept the amendment.
Lord Morton of Shuna: With the intention of assisting us to make rapid progress, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Clause 31 [Solicitors and counsel]:
Lord Wilson of Langside Lord Wilson of Langside moved Amendment No. 74:
Page 23, line 4, at end insert—(";
(c) in relation either to a solicitor or an advocate, the Board").
The noble and learned Lord said: This is a simple little amendment. However, if accepted, it will, I am persuaded, make a not insignificant contribution to the successful working of the new scheme under the new board. Section 6(3) of the 1967 Act empowers the Law Society in the case of solicitors and the Faculty of Advocates in the case of advocates to exclude a solicitor or advocate from being selected under the scheme on the ground that there is good reason for exclusion arising out of three possibilities: first, his conduct when acting under the scheme; secondly, his professional conduct generally; and, thirdly, in the case of a member of a firm, such conduct on the part of a person who is a member of the firm.
Clause 31, as your Lordships know, effectively reenacts these provisions of Section 6 of the 1967 Act with some modifications. It leaves a similar power to the Law Society and to the Faculty of Advocates. The purpose of the amendment is to extend a similar power to the new board. It seems to me that this would be a sensible and appropriate provision. It would certainly be logical, the new board being the body that takes the place, in relation to the new scheme, of the Law Society of Scotland.
From time to time I have been critical of certain corners of my own profession. With that in mind, it is important that I should say that the inspiration for this amendment comes from two present lay members of the Legal Aid Central Committee. It would not have occurred to me. They are deeply concerned that the opportunities presented by this Bill are grasped and that advantage is taken of the opportunity to correct little local clay-to-day problems which arise in the course of the workings of the present scheme.
Those who suggested to me that this amendment would be appropriate are lay people who have become deeply involved in the day-to-day practical work of the administration of the legal aid scheme. They are familiar with that and the problems that it presents.
As I am sure the Committee is aware, the scope of the power goes wider than questions of professional misconduct such as might go to the disciplinary committee of the Law Society, or might give rise to an action of professional negligence.
The amendment in effect seeks to put the board in the same position as a client whose solicitor's or advocate's performance fell short. The ordinary client is entitled to dispense with the services of his solicitor or legal adviser if his performance falls short. And why not? Those who have advised me of their experience working on the legal aid central committee have been somewhat critical of the way in which the Law Society had made use of this power in the past. They are anxious that this should be corrected. They say that there have been instances in their experience over the past years where the exercise of the power, or consideration thereof, would certainly have been more 'speedy, more effective, and more appropriate than the normal complaints procedure which the Law Society has tended to be influenced to use.
At such a late hour I shall not detain the Committee with any more of the detail they have put in the paper which they have submitted to me. However, in effect their argument is that for the effective administration of legal aid, and for the encouragement of efficient, conscientious and economic service, it is essential for the board—which will assume the role of the Law Society—to have a similar power to that which the Law Society has enjoyed until now. They are very conscious that the existence of such a power will encourage those who have perhaps fallen short in the performance of their professional duties to have in mind that the board is not without teeth.
It has to be remembered that they have a right of appeal from the exercise of this power to the Court of Session. If the noble and learned Lord the Lord Advocate does not accept this amendment tonight I should certainly hope to have some assurance that he has weighed up these kinds of considerations. I have no doubt that this would have been considered when the Bill was being prepared. Perhaps the noble and learned Lord the Lord Advocate will give more thought to the matter and possibly consult with the lay element in the legal aid central committee who have expressed this concern in the matter. I should imagine that the Government will be anxious to show willing by bringing the lay element into consideration of decisions as to whether the performance of those working under the legal aid scheme has come up to the desirable standard. I beg to move.
Lord Morton of Shuna: I strongly oppose this amendment which seems to me wholly misconceived and totally out of place.
First, I would suggest that there is a power in the Bill to the client—who is not the legal aid board, but the accused person, or the person receiving legal aid, the individual requiring legal aid—to choose the solicitor or advocate of his choice. It seems to me that that is entirely contradicted if some board is saying. "You can choose anybody so long as we approve of them". That is the first matter.
Secondly, I know of no professional body which subjects itself to any form of disciplinary procedure by

1239
bodies which are not of that profession. For example, in the National Health Service the committees to which complaints by patients go are predominently staffed by members of the profession which the complaints are against, whether doctors, dentists or pharmacists.
It is surprising to me that, so far as I am aware, the noble and learned Lord, Lord Wilson, did not consult with the dean of the Faculty of Advocates. It would certainly be difficult to fit this procedure into the position of the Faculty of Advocates where an advocate is an officer of the court. The Faculty of Advocates do not have power to exclude an advocate from practising. It is only the Court of Session which has the power. It seems odd suddenly to give that power to some lay board. Certainly the inclusion of this power would not meet with the approval, as far as I can tell, of the Faculty of Advocates and might well mean that a large number of the Faculty would consider that they did not want to have anything to do with the legal aid scheme.
With regard to the solicitors, we have heard a great deal about abuses. We have heard a great deal about complaints, but with a total lack of specification. We know only that the lay observer on the Law Society complaints' procedure has very few criticisms out of the many complaints which are handled. It therefore seems that this is an entirely misconceived amendment, and I would wholly oppose it.
Lord Cameron of Lochbroom: I am bound to say that we gave careful consideration as to whether the board or the respective professional body should have the responsibility for determining whether a solicitor or advocate should be excluded. I can assure the noble and learned Lord on that matter. I think that it would not be reasonable, and would lead to practical difficulties, for both the board and professional body to have this power. For that reason, we decided on balance that it was preferable—since professional conduct was in question—that the responsibility should rest with the professional body which dealt with disciplinary questions.
There are additional safeguards for the board in the Bill. They have power under Schedule 3 to complain directly to the Scottish Solicitors' Discipline Tribunal. They may, if they are not satisfied with an account, reduce it on the grounds of overcharging or otherwise, and of course if a lawyer continually fails to submit proper accounts it could well be a matter like a mishandled or unnecessarily prolonged case which might be referred to the appropriate disciplinary authority. Therefore, I cannot accept the noble and learned Lord's amendment.
8.30 p.m.
Lord Wilson of Langside: I had not expected a great deal of support. However, I am interested in how often the noble Lord, Lord Morton of Shuna, has complained at not having been given any evidence about shortcomings and abuse in the working of the legal aid scheme in the past. I shall take the opportunity of telling him something of my experience of that over the last few years, but not tonight. Third Reading may present the appropriate opportunity.
1240
However, I shall show the noble and learned Lord the Lord Advocate the paper which I have received from the lay observers, whom the noble Lord, Lord Morton of Shuna, was rather cavalier in dismissing.
I am sorry that I have to beg leave to withdraw the amendment. Far from being ill-conceived, I think that there have been shortcomings in the working of the scheme over the last 30 or 40 years which have never been properly looked at. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clause 32 [Restriction on payment and employment of solicitor or counsel]:
On Question, Whether Clause 32 shall stand part of the Bill?
Lord Morton of Shuna: I oppose the Question, That this clause stand part of the Bill on the basis that there are many situations in which legal aid is granted only for part of the proceedings. From the way in which this clause is framed, it appears to prevent payment of the non legally-aided part. It is on that basis that I oppose the clause. In the hope that the nods that I see on the other side of the Committee may have some effect at a later stage, that is all that I intend to say on the matter.
Lord Cameron of Lochbroom: I am very grateful to the noble Lord. As I understand it, he simply desires an assurance that a solicitor who provides assistance privately before a certain stage in proceedings as regards which a legal aid application is thereafter granted, will not be prevented from obtaining private payment for those preliminary stages. That is not the intention of the clause. Obviously I would wish to look at it again to see whether it requires any adjustment to make the intention quite clear. If it does require adjustment we shall bring forward an appropriate amendment at Report.
The Earl of Selkirk: I should like to ask one question. According to Clause 32 no payment must be made except through the fund. However, if you look at Clause 12(3) you see the following words:
"fees or outlays to which this section applies shall be paid to the solicitor as follows—
(a) first, out of any contribution payable by the client".
I do not know whether or not it is intended, but it seems to me to run directly contary to what is said in Clause 32.
Lord Cameron of Lochbroom: No, the purpose of Clause 32 is simply to provide that what is called "topping up" should not take place—that is to say, a person who is in receipt of legal aid should then use his own private funds to obtain and purchase additional representation. Clause 12 is dealing with the circumstances where the contribution actually paid by the client for the purpose of obtaining legal aid is then to be paid over to the solicitors. Perhaps I should make clear that this probably applies rather to civil legal aid than to criminal proceedings, as regards which there is no contribution system anyway.
The Earl of Selkirk: That means that payment direct from the client to the solicitor or counsel is not cut out entirely by Clause 32. This is an important point because it almost looks as though it is an offence to do that and I understand from my noble and learned friend that that is not true.
Clause 32 agreed to.
Clause 33 [Fees and outlays of solicitors and counsel]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 75:
Page 24, line 5, at end insert ("and in making regulations under this section as to the amounts payable to counsel or a solicitor who acts for any person by providing legal aid or advice and assistance under this Act, and any person by whom any such amount falls to be assessed, taxed or reviewed under the regulations, the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.").
The noble Lord said: I am sure that the Government will want to accept this amendment. It is an amendment which incorporates provisions which are in the English legal aid arrangements. It suggests that, in making regulations as regards fees:
the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.
I shall be interested to hear whether the noble and learned Lord opposes that proposal. I beg to move.
Lord Cameron of Lochbroom: I can tell the noble Lord opposite that I do not look upon this amendment with favour. As the noble Lord made clear, this amendment derives from arrangements in England and, indeed, I think that their application is presently sub judice. Therefore, it will be no surprise to noble Lords to hear that I have no desire that such a provision should be contained within Scottish legislation.
The present provisions are reproduced from provisions in the existing legislation which were enacted as recently as 1983 because the Secretary of State was dissatisfied with arrangements which in effect gave him no direct control over this element of public sector remuneration. There is no sound basis for changing the provisions then enacted with, as I recall, general support from all parties, although I think with perhaps understandably less enthusiasm on the part of the Law Society.
It may be of interest to the Committee to know that it has recently been agreed between representatives of the Scottish Home and Health Department and of the Law Society and, separately, with representatives of the Faculty of Advocates that talks should begin shortly on the review of the existing fee structure for civil legal aid, criminal legal aid and advice and assistance, which contains some obvious anomalies. In the case of solicitors, this review will be assisted by the report by management consultants on a survey of solicitors' costs which was submitted last month to my right honourable and learned friend the Secretary of State and to the Law Society.
Consideration will be given to the changes that should be made in the regulations and what should be the relevant factors in those instances in which the fees are not specifically prescribed. I hope that, with that
1242
explanation, the noble Lord will feel able to withdraw his amendment.
Lord Morton of Shuna: Not at all, but I shall withdraw it at this stage. I shall certainly come back to the amendment. I see no reason why the basis should not be fair remuneration for work actually done, and nothing that the noble and learned Lord has said convinces me otherwise. However, rather than deal with it now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 agreed to.
Clauses 34 and 35 agreed to.
Clause 36 [Regulations]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 76:
Page 25, line 27, after ("may") insert ("on the advice of the Board").
The noble Lord said: I beg to move Amendment No. 76 and it may be convenient to deal also with Amendment No. 77 because it deals with very much the same matter. The amendment concerns the power to make regulations,
"on the advice of the Board",
as appear to be necessary or desirable.
Amendment No. 77 deletes the phrase:
"or for preventing abuses of",
because it does not serve any useful purpose except to repeat the unspecific allegation that there are abuses. I beg to move.
Lord Cameron of Lochbroom: In reply, perhaps I may also speak to Amendment No. 80, which I think goes along with Amendment No. 76. Amendments Nos. 76 and 80 have rather a suggestion of the tail wagging the dog. There is no need for any formal provisions obliging the Secretary of State to consult the board before making regulations, since he would do this in any case on matters on which, as the noble Lord has suggested, the board has special knowledge and expertise.
However, it would be undesirable for all the board's views to be laid before Parliament since these might refer to confidential matters. For instance, the board might wish to refer to papers on individual cases which showed up defects in existing regulations. There would also be regulations on which the board have no expertise or locus, such as those relating to fees. The important factor is that there should be adequate Parliamentary scrutiny of the subordinate legislation, and this is already provided for in the Bill as framed.
So far as Amendment No. 77 is concerned, the phrase which is omitted is not a new one. It is derived from Section 15(1) of the Legal Aid (Scotland) Act 1967. I am aware that the subject of abuses of the legal aid system is a vexed one, and touches on an area of sensitivity so far as the legal profession is concerned, but the provisions of the Bill as framed are not to be interpreted as referring only, or even primarily, to the actions of lawyers. They are couched in general terms and could also cover abuses by applicants and others.
When introducing a system which is, in some respects, new, it is even more important to have power

1243
to stop up quickly any loopholes which appear in the new arrangements. Regulations made by the Secretary of State under Clause 36(1) would allow this to be done. If the regulatory powers were deleted from the Bill primary legislation would be required to stop abuses. This would be a serious disadvantage, not least because of the resulting delays. For these reasons I cannot commend to your Lordships any of the three amendments to which I have spoken.
Lord Morton of Shuna: Again the noble and learned Lord has shown the total dependence of the board, which he asserts is to be independent, because whether it is the tail or the dog they are connected in his simile. If it is necessary or desirable to make regulations, that surely would cover the situation whether it was an abuse or otherwise. However, I shall withdraw the amendment.
Lord Wheatley: On a point of information, could either of the two noble Lords enlighten me? If the board is required to give advice to the Secretary of State, will the board be obliged, in terms of Clause 3(4), to have regard to the guidance given to it in that matter by the Secretary of State?
Lord Cameron of Lochbroom: Perhaps I might write to the noble and learned Lord on this matter.
Lord Ross of Marnock: Would the noble and learned Lord like to write to the rest of us as well?
Lord Cameron of Lochbroom: I would always be perfectly happy to write to the remainder of the noble Lords, or indeed put the letter in the Library, which would perhaps be the best way of making the matter clear to all.
Amendment, by leave, withdrawn.
[Amendment No. 77 not moved.]
On Question, whether Clause 36 shall stand part of the Bill?
The Earl of Selkirk: I think it is noteworthy that in subsection (2)(g) the Government are not content with regulations, they want the power to "modify any provision of this Act". That is going quite a long way, and I do not know how anyone is going to be notified about it. It is true that it applies particularly to subsection (3), but still that might be done by regulation. This is a modification about which no public notice is given whatever. I think that my noble and learned friend should look at that. If you are going to modify a statute, there must be some way in which it should be publicly understood and known.
Lord Cameron of Lochbroom: As I understand this subsection it commences with words saying that regulations made under this section may do certain things, of which (g) is one. Therefore, it is a regulation-making power which will give public notice, and of course it is only to deal with the special circumstances referred to in subsection (3). That may answer my noble friend.
The Earl of Selkirk: Does that mean that it will be made public? The noble and learned Lord has not said that.
Lord Cameron of Lochbroom: Regulations become a public document.
Clause 36 agreed to.
Clause 27 [Parliamentary procedure]:
8.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 78:
Page 27, line 19, after ("section") insert ("9")
The noble Lord said: Perhaps it would be convenient if we take Amendments Nos. 78 and 79 together. These are to add to the list of regulations under various sections which need affirmative resolutions. Clause 9 is the power to make regulations in relation to legal aid and advice, prescribing the proceedings and modifying the financial limits, and it would appear appropriate that they should be subject to affirmative resolution. Further, Clause 36(2)(g)—the one that the noble Earl, Lord Selkirk, has just dealt with—is a fairly radical power to make regulations, and would again appear to be more appropriately subject to affirmative resolution. Clause 42 is the power to deal with regulations dealing with disposable income, or disposable capital, and regulations prescribing the deductions in respect of maintenance of dependants, and again it would appear more suitable that this should be subject to affirmative resolution rather than annulment procedure. I beg to move.
Lord Cameron of Lochbroom: So far as Amendment No. 78 is concerned, I have considered this amendment and I am prepared to accept it on the basis that the Bill will then give a clear indication that assistance in criminal proceedings is being looked at in the round, with your Lordships' House being given a clear opportunity to consider the important changes in the arrangements in relation to assistance by way of representation as well as legal aid.
So far as the changes sought in Amendment No. 79 are concerned, I cannot be quite so forthcoming. These deal with matters which are derived from the present legislation, which again are dealt with under present legislation by way of negative resolution procedures. The same power, for instance, in Clause 36(2)(g) is mirrored in the present legislation in Section 15(3) of the Legal Aid (Scotland) Act 1967, where regulations made under that power are subject only to negative resolution procedure. For these reasons, and no special arguments having been put forward to justify a change, I cannot accept Amendment No. 79 but accept Amendment No. 78.
Lord Simon of Glaisdale: I am afraid that it is an impertinence for an English lawyer to intervene on a Scottish legal aid Bill, but I hope that the noble and learned Lord will look again at the point on Clause 36(2)(g) made by the noble Earl. It seems to me to be a most drastic provision going far beyond in principle the ambit of a Scottish statute, and will no doubt be quoted as a precedent just as the noble and learned Lord the Lord Advocate has quoted other provisions as a precedent. I very much hope that he will say that he will look again at that provision, if at no other.
The Earl of Selkirk: May I add one word? I wonder whether the noble and learned Lord ought not to include Clause 42. Clause 42 is far-reaching, and I shall have something to say about it presently. It undoubtedly should be brought in draft before your Lordships' House.
Lord Cameron of Lochbroom: I would simply say that my mind is not closed. I shall bear in mind what has been said by my noble friend and by the noble and learned Lord. However, I suggest from what I have said already that we are not dealing with new powers; we are dealing with powers which are already in existing legislation. But I shall look at this again.
Lord Morton of Shuna: It is part of the aim of Parliament to improve a Bill, but in the light of what the noble and learned Lord has said I shall not move Amendment No. 79, though it is a triumph to have had Amendment No. 78 accepted.
On Question, amendment agreed to.
[Amendment No. 79 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 80:
Page 27, line 24, at end insert—
("( ) Where the Secretary of State proposes to make regulations under this Act he shall refer the proposals in the form of draft regulations or otherwise to the Board.
( ) The Board shall consider any proposals referred to it by the Secretary of State under this section and shall make to the Secretary of State a report containing such recommendations with regard to the subject matter of the proposals as they think appropriate.
( ) If after receiving a report from the Board the Secretary of State lays before Parliament any regulations which comprise the whole or any part of the subject matter of the proposals referred to the Board he shall lay with the regulations a copy of the Board's report and a statement showing—

(a) the extent (if any) to which he has in framing the regulations given effect to the Board's recommendation, and

(b) in so far as effect has not been given to them, his reasons why not.")

The noble Lord said: This has been answered before I moved it, but its purpose is to ensure that regulations made under the Bill shall have some form of discussion by the board and that the board shall consider them and report on them so that Parliament shall have the benefit of a report from the board as well as the draft regulations from the Secretary of State. I beg to move.
Lord Cameron of Lochbroom: I do not wish to repeat what I have said already. I spoke to this amendment when dealing with Amendment No. 76. I made it quite clear why I could not accept it. I stand by those reasons.
Lord Ross of Marnock: But surely the wording of this amendment is very different. If I remember correctly, previously it required the approval of the board. This does not require the approval of the board, it requires the advice of the board and a report given on that advice. Whether that is accepted or not, Parliament is to be informed of that, presumably when the regulation, if it is to be put before Parliament, is brought forward. It is not exactly the same as the previous amendment on which the noble and learned Lord the Lord Advocate spoke and to which he now refers.
Lord Cameron of Lochbroom: I reiterate what I said last time. I made it clear that I thought it was undesirable for all the board's views to be laid before Parliament, as these might refer to confidential matters. For example, the board might wish to refer to papers on individual cases which showed up defects in the existing regulations. There may also be regulations on which the board has no expertise or locus such as those relating to fees. It is for those reasons, which I have stated, that I cannot accept the basic premise of this amendment, that the board's report should be laid, along with the copy of the regulations.
Lord Morton of Shuna: I can see no difficulty, if the board knows its report is to be laid before Parliament, in it drafting a suitable report. But, with the prospect of returning to the matter at a later stage, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37, as amended, agreed to.
Clause 38 [Rules of court]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 81:
Page 28, line 10, leave out ("party receiving legal aid") and insert ("legally assisted person").
The noble and learned Lord said: This is a drafting amendment which has the same effect as Amendment No. 47 to Clause 19, which was agreed on the last occasion when the Committee sat. I beg to move.
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Adaptation of rights to indemnity]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment Nos. 82 to 84:
Page 28, line 32, leave out ("for the purpose of adapting").
Page 28, line 33, leave out ("this Act").
Page 28, line 37, leave out ("for the purposes of this section") and insert ("in respect of any such right").
The noble and learned Lord said: These amendments are designed to make Amendment No. 39(2) clearer. It is a free-standing provision which prescribes that any right to be indemnified against the expenses of proceedings cannot be taken away in whole or in part simply because the person entitled to the right has not applied for legal aid for the same proceedings. I beg to move.
On Question, amendments agreed to.
Clause 39, as amended, agreed to,
Clauses 40 and 41 agreed to.
Clause 42 [Disposable income and capital]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 85:
Page 30, line 30, leave out ("do") and insert ("does")
The noble and learned Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 86:
Page 30, line 37, leave out subsection (3).
The noble Earl said: This is a most peculiar clause. In the first place it is the one clause in which the Treasury do not trust the Secretary of State for Scotland to do anything about the matter. In the second place I admit that I do not find the drafting easy and the amendment of the noble and learned Lord makes it even more difficult because I do not know what is the subject referred to under (1)(b) on the second line. What one does know is that it is now singular and it is neither deductions, allowances nor regulations, because they are all in the plural. I am quite at a loss to know what the subject is. It would be helpful to know. The clause deals with what is called "disposable income". We should be given the full story of the intention behind "disposable income". One finds some curious items under Clause 18:
"None of the following … a … person's house, wearing apparel, household furniture and the tools",
shall be part of it, as far as I can understand, but in other places notably under Clause 11, a:
"disposable income exceeds £54 a week."
Is that after deductions or before deductions? This is a form of means test and we should be given a full picture of exactly how this will work out.
Then we come to the part of the clause to which I have drawn attention, subsection (3). This states two things: first, that the spouse of the person may be charged as much as the Treasury likes. This is in marriage. I shall take the liberty of copying a recent publication on the equality of women which quotes Blackstone. I shall quote Blackstone here:
"The very being or legal existence of the wife is suspended during marriage or at least incorporated and consolidated totally in her husband."
That appears to be the view of the Treasury, though nowadays it would be disregarded outside. What is being said is that the wife is fully responsible for any liability the husband may be involved in.
If one goes further, one reads,
"other special cases, for taking into account the resources of other persons."
What is meant by that? It is utterly vague and uncertain and it is in the form of a kind of means test. In fairness we should be given a fair description of what the Government have in mind. In the meantime, subsection (3) should be taken right out of the Bill. I should like to know whether the Government are prepared to answer that and if they cannot answer now we must have an answer at Report stage.
9 p.m.
Lord Morton of Shuna: I support the amendment. No doubt we shall be told by the noble and learned Lord the Lord Advocate that this was in the 1949 and 1967 Acts; but things have moved since then, and the general situation is that people who are married do not consider that the income of their spouse is their income or vice versa. There is no reason why the legal aid authority should deal with it in this way. It is a wholly iniquitous situation in the present state of society, and I would strongly support the amendment.
Lord Cameron of Lochbroom: Perhaps I might speak first in relation to the amendment of my noble friend; indeed, the noble Lord has anticipated me. What we are doing is no more than retaining a provision which is already found in existing legislation, in particular, Section 4 of the 1967 Act. Subsection (3) of this clause repeats Section 4(4) of the 1967 Act. It is included on the basis that, where people live together as husband and wife and use resources in common, their joint resources should also be treated as one when assessing one of their number's ability to take legal proceedings. It will also be noted that there is a two-way process under Clause 42. If resources are combined, liabilities including such joint items as taxes and rents, as well as the maintenance of dependants, are also taken into account under Clause 42(1).
Perhaps I might in passing explain to my noble friend that what is the subject of the word "does" in the last line are the phrases "disposable income" or "disposable capital" in the first and second lines, which,
"in relation to any person means his income"
and then goes on—
"does not include the subject matter of the dispute".
Clause 42(3) provides for regulations exempting applicants from its provision. I can give an undertaking that as at present regulations will provide that the resources of the spouse should not be treated as a person's resources where the spouse has a contrary interest in the dispute in respect of which the application for a certificate is made, or where the person concerned and the spouse are living separate and apart.
I would make it clear that I do not consider there is anything inherently unfair about the resources of and allowances for spouses being considered jointly. Moreover, the practical difficulties of making separate assessment in every case and not just those where there was a contrary interest or where the couple are living separately would indeed be formidable.
My noble friend has put certain other questions to me. Again, I think I must make it clear that there is nothing new so far as this clause is concerned. It is derived specifically from Section 4 of the 1967 Act, and in particular subsection (2) is to be found in Section 4(2) of that Act. I find difficulty in giving precise answers to my noble friend's detailed questions, although I think I answered some of them earlier during the Committee stage. If I have not covered anything just now, I will certainly write to him and see that a copy of my letter is placed in the Library as regards the details he has raised with me.
Lord Ross of Marnock: Before the Lord Advocate finally leaves this, will he have a look at the last two lines:
"regulations may also make provision in relation to minors and pupils and other special cases, for taking into account the resources of other persons"?
Can he define "other persons" for me?
Lord Cameron of Lochbroom: I apologise. I should have made reference to that, because that is repeating

1249
the words which are to be found in Section 4(4) of the 1967 Act which are in these terms and which may be familiar:
"and regulations may also make provision, in relation to minors and pupils and other special cases, for taking into account the resources of other persons".
I shall certainly bear in mind what the noble Lord has said, but there is nothing new in what is provided in the Bill and regulations have proceeded on that basis in the past. An instance which I would give would be that the provision would cover, for example, the resources of the parent and guardian of a child applying for legal aid.
The Earl of Selkirk: I must admit I am not satisfied with this. This is a form of means test. We ought to have a precise definition of what is meant by "disposable income". This is the definition of disposable income and it goes back into various stages before that. Does that apply to other cases, for example Clause 11(2)(a):
"a client's disposable income exceeds £54".?
That is after deductions have been made. A person has a surplus or disposable income of £54 a week.
I do not necessarily want to press the noble and learned Lord now, but I think it is fair to the Committee that we should have a clear idea what disposable income is considered to be and whether it covers the list here, which I may say does not include housing. I notice that it includes the maintenance of dependants. That means that the wife or the husband presumably do not have their food included but that dependants may have their food included. I mention these things because the provision is hopelessly vague. We are reforming the law; we are not just sitting back and accepting the law as it was passed. I also point out that the status of women has changed greatly in the last 25 years. I think that is something we have to recognise as we go on. If my noble and learned friend does not wish to say anything further, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42, as amended, agreed to.
Clauses 43 to 45 agreed to.
Schedule 3 [Minor and Consequential Amendments]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 87:
Page 37, line 42, at end insert—
("The Sex Discrimination Act 1975.
2A. In section 75(4) of the Sex Discrimination Act 1975 for the words "the Legal Aid and Advice (Scotland) Acts 1967 and 1972" there shall be substituted the words "the Legal Aid (Scotland) Act 1986".").
The noble and learned Lord said: This is a drafting amendment intended to update the reference to legal aid legislation in the Sex Discrimination Act 1975. I beg to move.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Lord Simon of Glaisdale: May I ask whether we have dealt with Schedules 1 and 2?
The Deputy Chairman of Committees: Yes, I understand that we did so at an earlier stage.
Schedule 4 agreed to.
Schedule 5 [Repeals]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 88:
Page 41, line 39, column 3, at beginning insert ("Section 13(4)").
The noble and learned Lord said: This amendment repeals the reference to legal aid legislation in Section 13(4) of the Contempt of Court Act 1981 which will be obsolete with the enactment of the Bill. I beg to move.
On Question, amendment agreed to.
Schedule 5, as amended, agreed to.
Clause 46 agreed to.
House resumed: Bill reported with the amendments.

Broadcasting (Local Sound Broadcasting Programme Contractors' Additional Payments) Order 1986
9.11 p.m.
Viscount Davidson Viscount Davidson rose to move, The the draft order laid before the House on 4th March be approved. [15th Report from the Joint Committee.]
The noble Viscount said: The draft order relates to additional payments—usually known as the "levy"—which independent local radio companies are required under the Broadcasting Act 1981 to pay into the Consolidated Fund if they make sufficient profits. The levy was introduced for ILR in October 1981. Under the current arrangements, companies must pay a levy of 40 per cent. on profits above a certain threshold; that threshold is either the first £250,000 of an ILR company's profits, or profits equivalent to 2 per cent. of advertising income, whichever is the greater. The draft order seeks to reduce the rate of ILR levy to nil, and would thus remove from ILR companies the requirement to make levy payments into public funds. We propose that it whould take effect from 1st April, which is the half year point in the companies' financial year. Their liability to pay corporation tax would however continue in the usual way.
Our proposals stem from a review of the ITV and ILR levies carried out last year by a working group of officials from the Home Office, Treasury and IBA. In the case of radio, the review showed that the ILR companies' revenue fell substantially following the introduction of the ILR levy in 1981, and has not since recovered in real terms. Profit yields for all but the largest metropolitan stations have been very modest. In the autumn of 1984, the IBA announced a package of measures designed to relieve the pressure on the ILR system, including a 10 per cent. cut in primary rental payments with effect from 1st April 1985. The position has not improved since the working group's

1251
review was completed last year, and there are no firm grounds for believing that there will be a substantial increase in ILR profitability in the future. Rather, ILR seems likely to face increasing competitive challenges by way of free-sheets, the new technologies and other broadcasting media. In fact, ILR has already faced significant competition for revenue from Breakfast Television, which operates during ILR's peak earning period, and from Channel 4. The future holds the prospects of extended broadcasting hours on terrestial television, satellite broadcasting and cable.
Two particular developments, to which the working group referred as sources of further competition for ILR were community radio and independent national radio. So far as community radio is concerned, your Lordships will know that the Government intend to establish a small number of community radio stations on an experimental basis. These stations will be different in kind from ILR stations, but we recognise that the development of community radio raises important questions for existing sound broadcasting services, including ILR. We think it right that these matters should be the subject of wider consultation and we therefore propose to publish a Green Paper during the period of the community radio experiment. By the same token, there are important interrelationships between independent local radio and national radio, and the Government may want to have regard to these in framing the Green Paper.
Against the background of the financial and competitive pressures which I have outlined, the working group concluded that there was a strong case for removing the additional burden of levy from the ILR companies. The Government accept that view and my right honourable friend recently made an announcement to that effect in another place. In the last complete financial year (ending on 31st March 1985) for which figures are available, the sums paid by way of levy were £623,000. On the basis of the most recent forecasts only three companies—Capital in London, Piccadilly in Manchester and Clyde in Glasgow—would be liable for levy during the current year. If the levy rate is reduced to zero these companies will benefit in the six months from 1st April to 30th
1252
September 1986 by some £196,000 in total. The sums involved are therefore small relative to the equivalent levy on ITV companies; but the burden is large relative to the wealth of the ILR industry and to the resources of the individual companies subject to levy.
I might add that the internal review recommended that the IBA be invited to consider means by which the rental arrangements might be adjusted, so that sums otherwise payable in levy would be re-distributed throughout the ILR system. The IBA has since concluded that it would not be practicable to introduce such a system, and the Government accept that conclusion. There is already a measure of support from the larger, more profitable companies to the smaller, less profitable companies. Programmes made by the large stations can be made available for networking at low cost for the benefit of the industry as a whole; and larger stations contribute disproportionately to the common services provided by the Association of Independent Radio Contractors and the Radio Marketing Bureau. There are therefore various ways in which gains to the most successful companies will work to the benefit of the industry as a whole. My Lords, I beg to move.
Moved, That the draft order laid before the House on 4th March be approved. [15th Report from the Joint Committee.]—(Viscount Davidson.)
Baroness Ewart-Biggs: My Lords, we should like to say how grateful we are for the very clear explanation that we have received from the Minister about this order. I cannot help feeling that a measure that will help the ILR industry can only be welcomed, and that the working group that was set up to identify and discover this can only be very much respected. So may I say that a measure which relieves these contractors from a liability to the tune of 40 per cent. can only be applauded, and we on this side of the House should like to give our support to this order.
Viscount Davidson: My Lords, I am most grateful to the noble Baroness, Lady Ewart-Biggs, for her welcome of this order.
On Question, Motion agreed to.

Marriage (Prohibited Degrees of Relationship) Bill [H.L.]
9.18 p.m.
Read a third time.
Clause 1 [Marriage between certain persons related by affinity not to be void]:
Lord Meston Lord Meston moved Amendment No. 1:
Page 1, line 11, leave out ("eighteen") and insert ("twenty-one").
The noble Lord said: My Lords, with your Lordships' permission I should also like to speak to Amendments Nos. 2, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26 and 27. They are all identical. These amendments relate to the minimum age for marriages between step-relations covered by this Bill and seek to increase the minimum age from 18 to 21. These amendments are brought forward in response to amendments moved by the noble Baroness, Lady Ewart-Biggs, in the name of herself and the noble Lord, Lord Mishcon, at Committee stage, which were withdrawn by the noble Baroness upon my undertaking to reconsider the matter.
There are many arguments either way relating to age limits. One is faced with the fact that all age limits in relation to marriage or anything else are arbitrary. I respect the unease expressed at Second Reading by the noble Lord, Lord Mishcon, and echoed at the Committee stage by the noble Baroness, Lady Ewan-Biggs. I have considerable respect for the arguments for an age limit of 21 in this kind of marriage although to provide for it would bring such marriages, in a sense, out of line with the minimum age limits for other forms of marriage. But consistency is not everything. Lawyers thrive on inconsistencies, I am glad to say.
There are clear and cogent arguments that marriages of this kind will probably need greater maturity. The parties involved may have more to cope with than in an ordinary marriage. It is therefore thought desirable to introduce a minimum age of 21, which it is hoped provides a safeguard without being over-protective. In relation to step-relations—step-parents and stepchildren—the anxiety has always been to ensure that vulnerable young people should not be exposed to pressures within the family. Even if the younger partner has never been a child of the family within the meaning of the law it is thought that a minimum age limit of 21 will provide an added safeguard. I emphasise, as I emphasised at the Committee stage, that the intention is not to redefine the concept of "child of the family" also within the Bill. I beg to move.
The Lord Bishop of Ely: My Lords, perhaps I may speak very briefly to the amendments just proposed. As a Bishop who has followed the progress of the Bill of the noble Lord, Lord Meston, with close and sympathetic interest, may I say that as I understand it the Bishops would hope to see the Bill proceed whether or not amended in this particular. It is recognised that this amendment is designed to give a measure of protection to the young in the face of possible
1254
pressures in the family, but there is even so, on the part of the Bishops, who have been following the Bill most closely, an openness either way about the proposal to make the minimum age of marriage in such circumstances 21 rather than 18.
Lord Simon of Glaisdale: My Lords, I approach this group of amendments, and indeed all the amendments this evening, on a dual basis. The first is that all your Lordships who have been concerned in this Bill are agreed that it is worthwhile, although I know that the noble Baroness, Lady Seear, would add "so far as it goes". The second is that this is really the last chance we have of getting the Bill right. Unless we are agreed this evening, the Bill, I should judge, will be lost for the Session. If it is going to pass this Session it can do so only on the basis of passing in the other place on the nod.
The first two amendments are a compromise. Amendment No. 1 stipulates that both parties shall be 21 at the time of marriage. Amendment No. 2 stipulates that the younger party has not been a child of the family in respect of the other party before the age of 18. At an earlier stage—I think it was the Report stage—the noble Baroness, Lady Ewart-Biggs, wanted the age of 21 for both. I myself wanted 18 for both as being the general age at which we accord responsibility and power of choice at large to young persons. 'This is a compromise. I am myself prepared to accept it. Unless we do so the Scottish amendment, Amendment No. 32, will be out of line, and so will the "in-law" amendments, Amendments Nos. 6 and 7, which I think in all sense ought to follow the same pattern as to age. I therefore readily accept this amendment as a compromise.
Lord Denning: My Lords, perhaps I may say how much I welcome this amendment. Twenty-one is a much more sensible age, as I have always thought, than 18. To bring this matter into line, and to get the Bill through, would be of the first value.
Baroness Ewart-Biggs: My Lords, I should like to say how grateful I am to the noble Lord, Lord Meston, for bringing forward these amendments, which go a long way to satisfying the request that my noble friend Lord Mishcon and I put forward in Committee.
We felt that it would be better if the age of the child of the family relationship was also changed to bring it up to 21 years. However, the noble Lord, Lord Meston, has made an important change. If one is 21 years of age, one is perhaps less susceptible to persuasion. It is a less volatile age. As it is a question of deciding whether or not to get married, it is important that the age should be moved from 18, which is not a very mature age judging by my experience of young people. We are most grateful to the noble Lord, Lord Meston, for making this amendment. I hope very much that it will receive a welcome from all parts of the House, including the Government Benches.
Viscount Davidson: My Lords, as the House must be well aware by now, the Government are neutral on the main aims of the Bill. It is for your Lordships to decide

1255
whether it is necessary and desirable that stepchildren and grand-stepchildren who have not lived as children of the family of their step-parents and grand step-parents should have to wait until they are 21 before marrying step-parents or grand step-parents.
Lord Meston: My Lords, I am grateful to all noble Lords who have ventured to support the amendments. As the noble and learned Lord, Lord Simon, said, this is indeed a last chance to get it right. I hope that this amendment does get it right. The noble and learned Lord is also correct in saying that it is a compromise. There is now, in a sense, a dual test. I was anxious to accommodate those who suggested 21 as the minimum age for the type of marriage in question, without redefining the concept of child of the family.
As to the future amendments, Amendments Nos. 6 and 7 will bring the limit of 21 years of age into line when the House comes to consider marriages as between in-laws. I commend this amendment to the House.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 2:
Page 1, line 12, leave out ("that age") and insert ("the age of eighteen")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Baroness Seear Baroness Seear moved Amendment No. 3:
Page 1, line 15, leave out ("mother or")
The noble Baroness said: My Lords, with the leave of the House, I should like to speak also to Amendments Nos. 4 and 5. They are simply revisions of amendments that were moved at the Committee stage because of defective drafting at that stage. They do not in any sense alter the meaning of the amendments accepted in Committee. I beg to move.
Lord Simon of Glaisdale: My Lords, as the noble Baroness said, this is merely redrafting and does not alter the effect. I preferred the original version, which I thought was clear and more economical. However, I shall not oppose this redrafting, if only because Amendments Nos. 6 and 7, which are necessary to bring the in-law into line with the step relation, are dependent on the new draft of the noble Baroness. As I said, we have to get this right tonight or the Bill will not pass before the end of this Session. I support the amendment.
Lord Meston: My Lords, I, too, accept the amendments, both in principle and as they are drafted.
On Question, amendment agreed to.
9.30 p.m.
Baroness Seear Baroness Seear moved Amendment No. 5:
Page 1, line 17, leave out ("son or")
On Question, amendment agreed to.
Baroness Seear Baroness Seear moved Amendment No. 5:
Page 1, line 19, leave out from ("relationship") to end of line 21 and insert—
("( ) A marriage solemnized after the commencement of this Act between a man and a woman who is the mother of a former
1256
spouse of his shall not be void by reason only of that relationship if the marriage is solemnized after the death of both that spouse and the father of that spouse.
( ) A marriage solemnized after the commencement of this Act between a man and a woman who is a former spouse of his son shall not be void by reason only of that relationship if the marriage is solemnized after the death of both his son and the mother of his son.")
The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Meston Lord Meston moved, as an amendment to Amendment No. 5, Amendment No. 6:
Line 7, at end insert ("and after both the parties to the marriage have attained the age of twenty-one")
The noble Lord said: My Lords, with permission I shall also speak to Amendment No. 7. As I have indicated, this introduces a consistent minimum age for marriages as between in-laws. Again, the same arguments apply in relation to maturity, but in practice very rarely will the situation arise that either party will be anywhere near the age of 21. Nevertheless, it is helpful and sensible to have the same age limit for marriages to be permitted under this Bill which, of course, seeks to permit some marriages within the degrees of affinity. It gives some weight to the concern expressed by the minority in No Just Cause that the young in-law should be secure in his or her relationship within the new spouse's family. I beg to move.
On Question, amendment to the amendment agreed to.
Lord Meston Lord Meston moved, as an amendment to Amendment No. 5, Amendment No. 7:
Line 12, at end insert ("and after both the parties to the marriage have attained the age of twenty-one")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment to the amendment agreed to.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 8:
Page 2, line 2, leave out from ("has") to ("lived") in line 3.
The noble Lord said: My Lords, I speak also to Amendment No. 28. The purpose of this amendment is to take out the words "for a period" in the part of the Bill which seeks to define the child of the family. That has been done in response to the request of the noble Viscount, Lord Davidson, on Report to reconsider the usefulness of the phrase "for a period" within that subsection. It has been accepted that those words do not add significantly to the definition of a child of the family and it is on that basis that I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 9:
After Clause 1, insert the following new clause:
("Marriage between certain persons related by affinity—Scotland. 1977 c. 15.
. Schedule (Amendment of Marriage (Scotland) Act 1977) (which amends the Marriage (Scotland) Act 1977 so as to permit—

(a) the marriage of a man and a woman who is the grandmother of a former spouse of his or is a former spouse of his grandson;

1257

(b) the marriage of a woman and a man who is the grandfather of a former spouse of hers or is a former spouse of her grand-daughter, and

(c) under certain conditions, the marriage of persons related in certain other degrees of affinity)

shall have effect.".
The noble and learned Lord said: My Lords, on Report I gave notice of the Government's intention to extend the provisions of the Bill to Scotland; a decision taken on the basis of the consensus of support in your Lordships' House for the Bill and the practice of seeking to maintain consistency in the laws of marriage for Scotland, England and Wales.
The amendment in my name is intended, therefore, to apply the provisions of the Bill in a form approved by your Lordships to Scotland in terms of amendments to the Marriage (Scotland) Act 1977. I wish to make it clear, like my noble friend, that in moving these amendments the Government do not depart in the least degree from their attitude of benevolent neutrality.
I speak also to Amendment No. 32, and these amendments bring into effect a new schedule to the Bill which amends the Marriage (Scotland) Act 1977 so as to permit marriages between certain persons who are at present prohibited from marrying each other on account of relationship by affinity. Paragraphs (a) and (b) explain in detail the fact that marriage can now take place between grandparents-in-law and grandchildren-in-law and the Bill achieves this by substituting for paragraph 2 of Schedule 1 to the 1977 Act two new paragraphs, paragraphs 2 and 2(a), and in so doing it deletes from the previously forbidden degrees of relationship for the purpose of marriage relationships between grandparents-in-law and grandchildren-in-law.
Paragraph (c) refers to marriages which may now take place subject to the conditions stipulated in the new schedule between step-parents and stepchildren and between parents-in-law and children-in-law. The schedule provides for Scotland therefore in a manner corresponding to what is proposed for England and Wales elsewhere in the Bill in amendments which have been and will be proposed by the noble Lord, Lord Meston, and the noble Baroness, Lady Seear, I think with the exception of Amendment No. 15. I beg to move.
Lord Simon of Glaisdale: My Lords, though I have learned a certain amount about Scottish law by listening to the debates on the Scottish legal aid Bill, and though the noble and learned Lord the Lord Advocate dealt with paragraph (c), I am afraid that I still do not understand what is within its ambit. I hope he will be able to give a slightly more full explanation to the following:
"under certain conditions, the marriage of persons related in certain other degrees of affinity shall have effect".
I am not at all sure what that is really getting at.
Lord Cameron of Lochbroom: My Lords, the important matter is to be found in the schedule to the Bill. There are circumstances in which certain conditions have to be satisfied before parties may marry. I am looking at the schedule itself in paragraph 2(c) where it is provided that after subsection (4)—this is subsection (4) of Section 2 of the Marriage
1258
(Scotland) Act 1977—there shall be inserted the following new subsection:
"where the parties intending to marry are related in a degree specified in paragraph 2 of Schedule 1 to this Act, either party may apply to the Court of Session for a declaration that the conditions specified in paragraphs (a) and (b) of Subsection (1A) above are fulfilled in relation to the intended marriage".
That is in relation to the attainment of a certain age, which is 21, and that the younger party has not at any time before attaining the age of 18 lived in the same household.
These are the forms and conditions which have to be satisfied before there can be a marriage between persons related in certain other degrees of affinity.
I accept that it is rather a circumlocutory way of achieving an objective which may be achieved otherwise in the English legislation. But I can assure the noble and learned Lord that that is the intention of this subsection in relation to the schedule.
Lord Simon of Glaisdale: My Lords, I thank the noble and learned Lord for his explanation. It is not very easy to understand that new paragraph but I think it is now clear what the provision to which it refers intends.
Lord Meston: My Lords, I simply accept these amendments with gratitude and indeed I accept the explanation for the amendments given by the noble and learned Lord. Though my heart may be in the highlands, my knowledge of the law is firmly south of the Border. I thank the noble and learned Lord for these amendments which of course bring Scotland into line under this Bill. I should also like to thank those responsible for the extensive drafting involved.
On Question, amendment agreed to.
Clause 5 [Short title, citation, commencement and extent]:
Lord Meston Lord Meston moved Amendment No. 10:
Page 3, line 2, leave out ("and this Act and") and insert—
("( ) This Act so far as it extends to England and Wales may be cited with").
The noble Lord said: My Lords, if I may speak also to Amendment No. 11, these amendments simply effect alterations to the citation clause consequential upon the extension of this Bill to Scotland.
Lord Simon of Glaisdale: My Lords, I am not sure whether the noble Lord, Lord Meston, also spoke to Amendment No. 14 on which I had a question as to whether the words, "save as aforesaid this" were proper; in other words, whether sufficient of the Scottish provisions had been referred to.
I let the noble and learned Lord the Lord Advocate know of my misgivings—at a very late date I am afraid. The provision about which I was not sure was the subject matter of Amendment No. 12, which seemed Scottish, and in Clause 5(3).
Lord Meston: I hesitate to interrupt the noble and learned Lord, but I did not speak to Amendment No. 14. I did not do so deliberately because although on the Marshalled List Amendments Nos. 12, 13 and 14 appear in my name, in fact they

1259
should have appeared in the name of the noble and learned Lord, Lord Cameron, and I therefore disclaim all responsibility for Amendments Nos. 12, 13 and 14.
Lord Cameron of Lochbroom: Perhaps I may say at this stage, just in response to something that the noble and learned Lord let drop, that he brought a certain matter to my attention. I will deal with this, if I may, in speaking to Amendment No. 14, because I think the noble and learned Lord has a point which I would hope perhaps the House might deal with even at this late stage.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 11:
Page 3, line 3, leave out ("may be cited").
The noble Lord said: My Lords, I have already spoken to this. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker: As has already been said, I should point out that Amendments Nos. 12, 13 and 14 are in the name of Lord Cameron of Lochbroom and not in the name of Lord Meston, as printed on the Marshalled List.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 12:
Page 3, line 4, at end insert—
("( ) This Act so far as it relates to the Marriage (Scotland) Act 1977 may be cited with that Act as the Marriage (Scotland) Acts 1977 and 1986.").
The noble and learned Lord said: My Lords, this amendment makes an adjustment to Clause 5 in consequence of the Bill being extended to Scotland. I therefore beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 13:
Page 3, line 9, at end insert ("and different days may be so appointed for different provisions").
The noble and learned Lord said: My Lords, the purpose of this amendment is to provide that separate commencement orders may be made for Scotland and for England and Wales. While ideally it would be desirable to achieve the same commencement date for both jurisdictions, this amendment allows for the possibility that simultaneous commencement may not be practicable. With that explanation, I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 14:
Page 3, line 10, leave out ("This") and insert—
("Section (Marriage between certain persons related by affinity—Scotland) and Schedule (Amendments of Marriage (Scotland) Act 1977) shall extend to Scotland only, but save as aforesaid this").
The noble and learned Lord said: My Lords, as I hinted earlier, I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for bringing a matter to my attention. I have checked it with those who advise me. The amendment as presently framed on the Marshalled List extends two matters—a section which was the new clause under Amendment 9, and the schedule to which I have already spoken—to
1260
Scotland. But the noble and learned Lord drew to my attention—he is quite right about this—the consequence that Amendments Nos. 12 and 13 bring into Clause 5 of the Bill material that also relates to Scotland and might not therefore appear on the face of Amendment No. 14 to be comprehended by that amendment.
9.45 p.m.
If the House would be prepared to accept a slight alteration to Amendment No. 14, it would read:
"("Section (Marriage between certain persons related by affinity—Scotland)",
and then,
"This Section",
which would refer to Clause 5,
"and Schedule (Amendments of Marriage (Scotland) Act 1977) shall extend to Scotland":
The word "only" is then deleted, and the amendment concludes,
"but save as aforesaid this".
That would cure entirely the drafting blunder that would arise as a result of your Lordships' House having accepted Amendments Nos. 12 and 13 and make clear beyond peradventure that Clause 5 also extends to Scotland. If your Lordships were of a mind, I would, with that addition and that deletion from the amendment, beg to move the amendment in those terms. I am advised that this would have to be framed by way of a manuscript amendment. No, that is not right. I regret that I have advice from the Table that what I am trying to do cannot be done in your Lordships' House. For that, I must apologise to your Lordships. I shall simply beg to move the amendment as it presently stands in the hope that matters can perhaps be put right at a later stage.
Lord Simon of Glaisdale: My Lords, I rise only to express my gratitude to the noble and learned Lord and to ask if it is really the case that this change cannot be made by a manuscript amendment at this stage. I have known, certainly not on Third Reading, but at earlier stages, manuscript amendments to be accepted by the Chair provided that there was no objection elsewhere in the House. I see that the noble and learned Lord has just been briefed.
Lord Cameron of Lochbroom: My Lords, I regret to say that the brief I have been given accords with what I have just stated to your Lordships' House. Regrettably, the rules do not provide for this at Third Reading, although it may be done at earlier stages of the Bill's progress. I can only tender my apologies to your Lordships that this should have arisen. It may require to be cured elsewhere. I accept that it is unfortunate.
On Question, amendment agreed to.
In the Schedule [Amendments of Marriage Act 1949]:
[Amendment No. 15 not moved.]
Lord Meston Lord Meston moved Amendments Nos. 16 and 17:
Page 4, line 14, leave out ("eighteen") and insert ("twenty-one")
Page 4, line 16, leave out ("that age") and insert ("the age of eighteen")
The noble Lord said: My Lords, I have already spoken to this amendment and also to Amendment No. 17. I beg to move.
The Deputy Speaker (Earl Cathcart): My Lords, with the leave of the House, Amendments Nos. 16 and 17 are proposed en bloc.
On Question, amendments agreed to.
Lord Meston Lord Meston moved Amendment No. 18:
Page 4, line 17, at end insert—
(" (4) Subject to subsection (5) of this section, a marriage solemnized between a man and any of the persons mentioned in the first column of Part III of the First Schedule to this Act or between a woman and any of the persons mentioned in the second column of the said Part III shall be void.
(5) Any such marriage as is mentioned in subsection (4) of this section shall not be void by reason only of affinity if both the parties to the marriage have attained the age of twenty-one at the time of the marriage and the marriage is solemnized—

(a) in the case of a marriage between a man and the mother of a former wife of his, after the death of both the former wife and the father of the former wife;

(b) in the case of a marriage between a man and the former wife of his son, after the death of both his son and the mother of his son;

(c) in the case of a marriage between a woman and the father of a former husband of hers, after the death of both the former husband and the mother of the former husband;

(d) in the case of a marriage between a woman and a former husband of her daughter, after the death of both her daughter and the father of her daughter.")

The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 29, 30 and 31. This is a revised version of the amendment of my noble friend Lady Seear proposed on Report to permit marriage between in-laws where the connecting spouse has died. The amendments cure a weakness in the text created by acceptance of her amendment. The new scheme proposed is a three-part schedule to the Marriage Act 1949 following the style of that Act. In Amendment No. 31, your Lordships will see that there is a new Part III to the schedule to the Marriage Act 1949 created to deal with in-law relationships. Amendments Nos. 29 and 30 are part and parcel of the same scheme. With that explanation, I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 18A.
Page 4, line 24, leave out ("subsection") and insert ("subsections")
The noble Lord said: My Lords, on behalf of my noble friend Lord Kilmarnock, I beg to move this amendment and speak also to Amendments Nos. 20A, 24A and 27A. These amendments have been introduced at a late stage to provide procedural safeguards which were considered desirable in respect of marriages by common licence and by superintendent registrar's certificate, with particular regard to marriages now to be permitted as a result of the amendments of my noble friend which were accepted at the Report stage.
They parallel the procedure in the Bill as it was originally drafted for step-relation marriages. They are also much closer to the safeguards which already exist
1262
under the general Scottish law in relation to marriage, where it appears that they are perhaps less sporting but rather more cautious in these matters. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendments Nos. 19 and 20:
Page 4, line 31, leave out ("eighteen") and insert ("twenty-one")
Page 4,line 36, leave out ("that age") and insert ("the age of eighteen")
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 19 and 20. I beg to move.
On Question, amendments agreed to.
Lord Meston Lord Meston moved Amentment No. 20A:
Page 4, line 37, at end insert—
("(1B) In the case of a marriage mentioned in subsection (4) of section 1 of this Act which by virtue of subsection (5) of that section is valid only if at the time of the marriage both the parties to the marriage have attained the age of twenty-one and the death has taken place of two other persons related to those parties in the manner mentioned in the said subsection (5), a common licence shall not be granted for the solemnization of the marriage unless the person having authority to grant the licence is satisfied by the production of evidence—

(a) that both the parties to the marriage have attained the age of twenty-one; and

(b) that both those other persons are dead".").

The noble Lord said: On behalf of my noble friend Lord Kilmarnock, I have already spoken to this amendment and I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendments Nos. 21 to 24:
Page 4, line 46, leave out ("eighteen") and insert ("twenty-one").
Page 5, line 1, leave out ("that age") and insert ("the age of eighteen");
Page 5, line 11, leave out ("eighteen") and insert ("twenty-one");
Page 5, line 12, leave out ("that age") and insert ("the age of eighteen").
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 21, 22, 23 and 24. I beg to move.
On Question, amendments agreed to.
Lord Meston Lord Meston moved Amendment No. 24A:
Page 5, line 19, leave out ("section") and insert ("sections").
The noble Lord said: My Lords, on behalf of my noble friend Lord Kilmarnock, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendments Nos. 25 to 27:
Page 5, line 28, leave out ("eighteen") and insert ("twenty-one").
Page 6, line 5, leave out ("eighteen") and insert ("twenty-one").
Page 6, line 6, leave out ("that age") and insert ("the age of eighteen").
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 25, 26 and 27. I beg to move.
On Question, amendments agreed to.
Lord Meston Lord Meston moved Amendment No. 27A:
Page 6, line 18, at end insert—
("Provisions relating to section 1(5) marriages.
27C. In the case of a marriage mentioned in subsection (4) of section 1 of this Act which by virtue of subsection (5) of that

1263
section is valid only if at the time of the marriage both the parties to the marriage have attained the age of twenty-one and the death has taken place of two other persons related to those parties in the manner mentioned in the said subsection (5), the superintendent registrar shall not enter notice of the marriage in the marriage notice book unless he is satisfied by the production of evidence—

(a) that both the parties to the marriage have attained the age of twenty-one, and

(b) that both those other persons are dead".").

The noble Lord said: My Lords, on behalf of my noble friend Lord Kilmarnock, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendments Nos. 28 to 31:
Page 6, line 30, leave out from ("has") to end of line.
Page 6, line 35, leave out from ("words") to ("to") in line 37 and insert ("from "Wife's mother" ")
Page 6, line 38, leave out from ("words") to ("to") in line 40 and insert ("from "Husband's father" ")
Page 7, leave out lines 4 to 9 and insert—

("Daughter of former wife

Son of former husband

Former wife of father

Former husband of mother

Former wife of father's father

Former husband of father's mother

Former wife of mother's father

Former husband of mother's mother

Daughter of son of former wife

Son of son of former husband

Daughter of daughter of former wife

Son of daughter of former husband

PART III

Degrees of affinity referred to in section 1(4) and (5) of this Act.

Mother of former wife

Father of former husband

Former wife of son

Former husband of daughter")

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 28, 29, 30 and 31. I beg to move.
On Question, amendments agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 32:
After the Schedule insert the following new Schedule—
("AMENDMENTS OF MARRIAGE (SCOTLAND) ACT 1977 (c. 15)
1. The Marriage (Scotland) Act 1977 shall be amended as follows.
2. In section 2 (prohibited degrees for marriage of related persons)—

(a) at the beginning of subsection (1) there shall be inserted the words "Subject to subsections (1A) and (1B) below,";

(b) after subsection (1) there shall be inserted the following subsection—

"(1A) Subsection (1) above does not apply to a marriage between a man and any woman related to him in a degree specified in column 1 of paragraph 2 of Schedule 1 to this Act, or between a woman and any man related to her in a degree specified in column 2 of that paragraph, if—

(a) both parties have attained the age of 21 at the time of the marriage; and

(b) the younger party has not at any time before attaining the age of 18 lived in the same household as the other party and been treated by the other party as a child of his family.

(1B) Subsection (1) above does not apply to a marriage between a man and any woman related to him in a degree specified in column 1 of paragraph 2A of Schedule 1to this Act, or between a woman and any man related to her in a degree specified in column 2 of that paragraph, if both parties to the marriage have attained the age of 21 and the marriage is solemnised—

1264

(a) in the case of a man marrying the mother of a former wife of his, after the death of both the former wife and the former wife's father;

(b) in the case of a man marrying a former wife of his son, after the death of both his son and his son's mother,

(c) in the case of a woman marrying the father of a former husband of hers, after the death of both the former husband and the former husband's mother;

(d) in the case of a woman marrying a former husband of her daughter, after the death of both her daughter and her daughter's father."; and

(c) after subsection (4) there shall be inserted the following subsection—

"(5) Where the parties to an intended marriage are related in a degree specified in paragraph 2 of Schedule 1 to this Act, either party may (whether or not an objection to the marriage has been submitted in accordance with section 5(1) of this Act) apply to the Court of Session for a declarator that the conditions specified in paragraphs (a) and (b) of subsection (1A) above are fulfilled in relation to the intended marriage.".
3. In section 3(1) (notice of intention to marry), after paragraph (c) there shall be inserted the following paragraph—
"(d) where he is related to the other party in a degree specified in paragraph 2 of Schedule 1 to this Act, a declaration in the prescribed form stating—

(i) the degree of relationship; and

(ii) that the youngest party has not at any time before attaining the age of 18 lived in the same household as the other party and been treated by the other party as a child of his family.".

4. In section 5 (objections to marriage)—

(a) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) below,";

(b) after subsection (3) there shall be inserted the following subsection—

"(3A) Where—

(a) an objection of which the Registrar General has received notification under subsection (2)(b)(i) above is on the ground that—

(i) the parties are related in a degree specified in paragraph 2 of Schedule 1 to this Act; and

(ii) the conditions specified in paragraphs (a) and (b) of section 2(1A) of this Act are not satisfied; and

(b) an extract decree of declarator that those conditions are satisfied, granted on an application under section 2(5) of this Act, is produced to the Registrar General, the Registrar General shall inform the district registrar that there is no legal impediment to the marriage on that ground."; and

(c) in subsection (4), for the words "subsection (3) above" there shall be substituted the words "this section".

5. In section 6(1) (the Marriage Schedule), after "5(3)(b)" there shall be inserted "or (3A)".
6. In section 7(1) (marriage outside Scotland where a party resides in Scotland), for the words "(a) and (b)" there shall be substituted the words "(a), (b) and (d)".
7. For paragraph 2 of Schedule 1 (relationship by affinity) there shall be substituted the following paragraphs—

"2—Relationship by affinity referred to in section 2(1A)

Daughter of former wife;

Son of former husband;

Former wife of father,

Former husband of mother,

Former wife of father's father,

Former husband of father's mother,

Former wife of mother's father,

Former husband of mother's mother,

Daughter of son of former wife;

Son of son of former husband;

Daughter of daughter of former wife;

Son of daughter of former husband.

2A.—Relationship by affinity referred to in section 2(1B)

Mother of former wife;

Father of former husband;

Former wife of son;

Former husband of daughter.")

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Meston: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass—(Lord Meston.)
Lord Denning: My Lords, I should like to thank the noble Lord, Lord Meston, for introducing the Bill and for carrying it through, and I should also like to thank everyone for the most valuable amendments which have been made to the Bill. I only raise the point about the administration of the Bill because unless the provisions of the Bill are complied with, any supposed marriage will be completely void.
One of the important provisions is contained in Clause 1 where it says:
"the younger party has not at any time before attaining that age"—
the age of 18—
"been a child of the family in relation to the other party".
Sometimes that will be a most difficult question to decide. Is the superintendent registrar to decide it? Is the clergyman who is to marry them to decide it? It is a most difficult question. Surely in future there must be circulars or instructions to the registrars and to the clergy. As the Bill carries through the major recommendations of the majority of the No Just Cause group, I should like to see what they said about the difficult situation which involves a child of the family under the age of 18. In paragraph 234 it says:
"The question though simple to frame could often involve great difficulties in establishing evidence and the absence of adversarial proceedings would seem to indicate the desirability of involving a senior court. Jurisdiction might be given initially to the Family Division of the High Court, with powers for the Lord Chancellor to remit cases to County Courts as a result of an accumulated experience".
I hope that as a result of the Bill there will not be great problems involved for superintendent registrars or for the clergy. I hope that it will not be necessary to have to go to the courts to decide the matter. However, I should like all those concerned with implementing the Bill to consider the point which I have just raised as to how it should be administered in practice by those registrars and clergy. Subject to that one qualification, I endorse the Bill and congratulate and thank all concerned for enabling it to go forward.
Baroness Ewart-Biggs: My Lords, first, I should like to congratulate the noble Lord, Lord Meston, on presenting, explaining and steering the Bill through its different stages. I should also like to say how grateful we are on these Benches for the concessions which he made to us as regards what we considered to be important basic points of the Bill. I was glad of the contribution of the noble Baroness, Lady Seear, in bringing forward amendments permitting the marriages of in-laws in certain circumstances, because they, surely, have been the subject of so many painful, lengthy and cumbersome private Bills of which we are all aware. In my view, those amendments are a
1266
valuable addition to Lord Meston' s original Bill. I was also pleased that throughout our deliberations on the Bill we heard contributions from the right reverend Prelates who gave their views, their approbation and their agreement to the different proposals which it contained.
One can surely only welcome measures which enable those who wish to get married—those who for the most part wish to enter into this most fundamental and sacred of unions—to do so. Anything that can remove barriers can surely only be welcomed in these days when so sadly we see the very reverse happening and so many marriages breaking apart. Therefore, I thank the noble Lord, Lord Meston, for all the work that he has clearly put into the Bill and I express my hope that it will be given a welcome and a good passage in another place. I wish it good luck and good speed on its way.
10 p.m.
Lord Simon of Glaisdale: My Lords, your Lordships have debated the main issues which arise, social and moral issues of great importance, and this is no time to go into them again. I desire only to say in relation to what was said by my noble and learned friend Lord Denning that I do not apprehend practical difficulties. I think any problem posed by the Bill to a superintendent registrar is no different from the problem which he already has to face in relation to the age of the parties who come before him. During all my time as a matrimonial judge I had only one case in reference to a superintendent registrar's decision, and that was on a difficult question of private international law; never a question of assessing age, which must arise constantly.
Having said that, there is nothing to say except to congratulate the noble Lord, Lord Meston, on the admirable way in which he has piloted the Bill and mastered the material down to the smallest detail. It would be quite unfitting for us to pass from this Bill without paying a renewed tribute to the noble Baroness, Lady Seear. The whole of the Bill is based on the wonderfully clear and copious report of the committee over which she presided, and I was glad that she got a concession, an amendment made, which was important to her and indeed an important amendment. It has been a very agreeable experience having this Bill conducted by the noble Lord, Lord Meston, and having the noble Baroness able to give the majority report view on its provisions, and I wish the Bill well.
Baroness Seear: My Lords, I should like briefly to thank my noble friend Lord Meston for steering this Bill through. It seemed a small Bill to start with, but it has had an inordinately long life so far. It seems a long time since the noble Baroness, Lady Wootton, first produced a Bill to deal with this subject, and I am glad that we have now been able, with the support of the Bench of Bishops, to get as far as this Bill has taken us.
As your Lordships are aware, it is not quite the Bill that I myself supported, representing the majority report of the committee set up by the most reverend Primate, but nonetheless it makes progress in a matter on which progress was needed. I am most grateful for the interest that has been taken and the support that has been given.

1267
I echo the noble Baroness, Lady Ewart-Biggs, in saying that I hope that time will be found for this Bill in the House of Commons. It is necessary that these changes should be made, and it would be a great pity if, after all the work that has been done, the Bill did not ultimately reach the statute book.
Viscount Davidson: My Lords, I should not like this Bill to pass without saying a few words on behalf of the Government. I have no doubt wearied your Lordships with repeating constantly that the Government remain neutral on the substantive issues which we have discussed during the passage of this Bill. If we have taken sides, as it were, it has been only for the purpose of suggesting drafting amendments. We have not sought to recommend any destination but only the best way to get there.
I should nevertheless like to say that the Government are happy with the outcome, and I trust that the noble Lord's Bill will have a fair passage through another place. If enacted, the Bill would, I think, remove from Parliament the great majority of those cases where a couple, in order to marry, have to promote a personal Bill in Parliament. It is costly to them; it takes up a lot of parliamentary time and, perhaps more seriously, it can be highly embarrassing to the couple concerned to hear intimate details of their lives discussed on the Floor of the House.
Many of your Lordships have described the personal Bills procedure as inappropriate. The noble Baroness, Lady Wootton of Abinger, and the noble Lord, Lord Lloyd of Kilgerran, have promoted general marriage enabling Bills. The noble Lord, Lord Lloyd of Kilgerran, withdrew his Bill in the knowledge of the group being set up by the most reverend Primate the Archbishop of Canterbury. The report of the group, No Just Cause, has provided the background to the debates in this House at all its stages. The minority report formed the basis of the original Bill, but the amended Bill has some features of the majority report, in that it makes some relaxation of restrictions on marriage between parents and children-in-law.
The Bill, if enacted, would remove most impediments to marriages between affines, those themselves related by marriage. This result is achieved by a Bill which is, one must admit, already of considerable complexity, but this is perhaps only to be expected when one considers the complications introduced by the various types of relationship, the need to balance the interests of the couple with the interests of society at large and the two legal systems. I should like to end, and I know that my noble and learned friend Lord Cameron of Lochbroom joins me in this, by congratulating the noble Lord, Lord Meston, on his foresight and tenacity in introducing the Bill and on successfully piloting it through your Lordships' House.
Lord Meston: My Lords, may I briefly thank all noble Lords who have spoken both this evening and throughout the passage of the Bill? It is, I hope, a useful Bill, with its origin in the report No Just Cause. I join in paying tribute to my noble friend Lady Seear for the excellence of that report, which has proved to be of great assistance to us in understanding the issues
1268
involved in this sometimes complex area. I suggest that it has become a better Bill in its passage through your Lordships' House. It has been extended to Scotland. It has been extended, with qualification, to in-laws and it now has the additional safeguard of a minimum age of 21 years for marriage. It is a Bill which has enjoyed, I am grateful to say, constructive help and support and comment from all sides, not least from the Bench of Bishops, who added their considerable weight and authority to this Bill.
I am also grateful for the Government's stance on the matter. They have been benevolent, neutral and helpful. I am particularly grateful. I hope that that attitude will continue, if not improve.
The noble and learned Lord, Lord Denning, touched very sensibly upon the practicalities of how this Bill, if enacted, will work in practice. As I have already stressed several times in the passage of the Bill, there are safeguards written into it. There will nevertheless be difficult and borderline cases. They must be inherent in the deliberately vague definition of the "child of the family". But like the noble and learned Lord, I share the view that when these difficult cases arise it should be a matter for decision by the most senior judges who sit at first instance in this area of the law.
This is not a party matter. It is a Bill which will benefit people at all levels and all strata of society. I certainly hope this is a Bill which will have a fair wind and some of the Government's precious time in another place.
On Question, Bill passed, and sent to the Commons.

Yorkshire Water Authority Bill
Reported from the Unopposed Bill Committee, with amendments.
House adjourned at ten minutes past ten o'clock.