Lords Sitting of 17 November 1987

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.

Lord Callaghan of Cardiff
The Right Honourable Sir Leonard James Callaghan, KG, having been created Baron Callaghan of Cardiff, of the City of Cardiff in the County of South Glamorgan, for life—Was, in his robes, introduced between the Lord Cledwyn of Penrhos and the Lord Brooks of Tremorfa.

Civil Defence Regulations: Implementation
2.47 p.m.
Viscount Mersey: 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, with regard to civil protection, all joint fire and civil defence authorities have complied with the Home Office circular dated 30th October 1986, called A Planned Programme for Implementation.
The Minister of State, Home Office (The Earl of Caithness): My Lords, only one of the fire and civil defence authorities has so far failed to respond, and we are in touch with that authority.
Viscount Mersey: My Lords, I am gratified to hear such news from my noble friend. Can he tell us whether all those local authorities that have complied have done so to his full satisfaction or whether it is in the form of the creative compliance, as it is called, beloved by those who have nuclear-free zones?
The Earl of Caithness: My Lords, it is difficult to give my noble friend an answer to that question because there have been fairly voluminous replies and we are in the process of going through them. I shall be in a better position to answer once we have gone through them.
Viscount Mersey: My Lords, can my noble friend confirm that he is considering using his reserve powers on the one authority that has not complied, which, I believe, is Birmingham or the West Midlands?
The Earl of Caithness: My Lords, I can confirm that the outstanding fire and civil defence authority is the West Midlands. We have written to that authority today. If we do not receive a satisfactory response, we shall have to consider whether we should use our reserve powers.

WEU Meeting: European Security
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 whether they will make a statement on the recent meeting of defence ministers at the Western European Union in The Hague.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, the meeting was the latest in a series which provides a valuable opportunity for collective discussion by foreign and defence ministers from member nations. It was marked in particular by the publication of a platform on European security which will act as a guide for the future development of the union.
Lord Rodney: My Lords, I thank my noble friend for that Answer. I presume that he is encouraged by the fact that President Reagan welcomed the platform, as it is called, which, as my noble friend said, was adopted at the recent conference at The Hague. Can he indicate what areas of work Her Majesty's Government will be seeking to promote in the coming months for the WEU's future development?
Lord Trefgarne: My Lords, we certainly share the welcome accorded to the platform which I referred to and which reaffirms both the central position of the United States with regard to the defence of Europe and the nuclear strategy we have adopted ever since the end of the Second World War.
As regards the future activities of the WEU, that is a matter for the union itself. We have noted for example the very useful role which the WEU has recently played with regard to political aspects of activities in the Gulf.
Lord Molloy: My Lords, can the Minister say whether the Government are satisfied with the degree of liaison which exists between the WEU and NATO generally?
Lord Trefgarne: My Lords, we are satisfied. I should emphasise that the role of the two organisations is very different. Indeed, I myself addressed the Parliamentary Assembly of the WEU only last year.
Lord Chelwood: My Lords, since Soviet foreign policy has not departed in a single respect from the Brezhnev doctrine where the former independent countries of eastern and central Europe and the Baltic states are concerned or in other continents, does not this emphasise very heavily indeed the importance of WEU?
Lord Trefgarne: My Lords, nobody underestimates the importance of the WEU, certainly not this Government. We were instrumental in revitalising the union a couple of years or so ago. My

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noble friend is quite right to point out that both the foreign policy and the defence policy of the Soviet Union have changed hardly a jot recently. That is not to say that we do not welcome some of the changes that have taken place.
Lord Mulley: My Lords, is the Minister concerned that there is a great danger of proliferation between the various bodies of European defence ministers? There is the WEU which does not include all the European members of NATO. There are also the European defence ministers who meet within NATO, France also being represented. There is a separate body to deal with equipment problems.
Is there not a danger of there being differences of view (I speak as an ex-President of the Assembly of the WEU), which might confuse allies, particularly the United States and Canada who are not involved in these exchanges? I feel that there is a danger of them getting at cross purposes.
Lord Trefgarne: My Lords, I think the noble Lord is right. There is a danger that there will be a proliferation of bodies of this kind all trying to achieve the same thing. That is why it is important that all the respectable bodies such as the WEU make sure that they take part in the activities appropriate to them.
As I said earlier, the WEU provides a valuable political impetus to European security and cooperation. But it is NATO which is the cornerstone of our defence policy. It is important that those two particular areas do not get blurred.
Lord Graham of Edmonton: My Lords, will the Minister confirm that the Helsinki Final Act still has a useful part to play in the objectives of Western defence? What have Her Majesty's Government to say of the implications for Western defence priorities in view of the cuts in defence expenditure widely predicted as a result of current considerations regarding the American budget?
Lord Trefgarne: My Lords, as I mentioned just now, the platform which was agreed at the recent WEU meeting underlined the importance of the American contribution to the defence of Europe. That is why my noble friend Lord Rodney was right to point to President Reagan's welcome of that particular aspect.
Lord Gladwyn: My Lords, what are the Government's views on the nuclear defence policy of the Western world? Does the Minister agree that it is now absolutely essential for the European members of NATO to make immediate progress in the direction of a common conventional defence policy?
Lord Trefgarne: My Lords, nobody doubts the importance of ensuring the strength of our conventional weapons systems and other aspects of conventional defence. We spend a great deal of time coming together in that particular way, for example through the independent European programme group which has frequent meetings, not least at ministerial level.
Lord Cledwyn of Penrhos: My Lords, can the noble Lord confirm that the WEU gave full support to the proposed INF treaty? On the discussion which took place concerning the Iran-Iraq conflict, can he say whether there were any views about a co-ordinated Euro-forces policy in the Gulf?
Lord Trefgarne: My Lords, on the latter point, I think it is important that the WEU does not get involved in operational matters. There would have been a risk of that if it had gone too far down the road which the noble Lord indicates. Its contribution on the political aspects of the Gulf situation was very welcome. As to support for the INF agreement, I can assure the noble Lord that all the European allies, including in particular those who are members of the Western European Union, warmly welcome the agreement which is now in prospect.

Sunday Trading Law: Enforcement
2.56 p.m.
Lord Boyd-Carpenter: 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 in view of the current state of the law on Sunday trading they are giving guidance to local authorities as to their duty in respect of enforcing it.
The Earl of Caithness: No, my Lords.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that unambiguous, if unhelpful, reply. Perhaps I may ask him whether he and Her Majesty's Government appreciate the real difficulties which the present state of the law on Sunday trading involves for local authorities. In particular, is he aware that Teignbridge council has felt bound to warn the monks of Buckfast Abbey that while they are perfectly free to go on selling their beautiful wines on Sunday afternoons, they commit a criminal offence if they sell bibles, crucifixes or rosaries?
The Earl of Caithness: My Lords, my noble friend raises some of the anomalies of the present legislation which we tried to correct in the previous Session. As your Lordships know, because of opposition on the other side we did not succeed. Therefore we shall continue to look at the situation and keep it under review.
Lord Mishcon: My Lords, does the noble Earl remember, as he should do, the debates that took place in this House on the earlier Bill and the amendments that were moved by the Opposition and from the Bishops' Benches? Is he encouraged by his recollection of those events not to make remarks such as he has just made, and to bring forward sensible legislation?
The Earl of Caithness: My Lords, my recollection is not terribly clear, as the Bill was piloted at that stage by my noble friend Lord Glenarthur and not by myself.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that, despite any mistakes which Parliament may have made in dealing with this matter in the past, unless some consistency is introduced into this matter the law will be brought into even greater contempt than it is in now?
The Earl of Caithness: My Lords, we are concerned about that possibility, and that is why we are considering all possible options at the moment.
Lord Ross of Marnock: My Lords, is the Minister aware of what is happening in Presbyterian Scotland, which is traditionally anti-Sabbatarian as regards Sunday trading? One can see what is happening there where there is no law to enforce.
The Earl of Caithness: My Lords, I think this is another occasion where Scotland sets a good example.
Lord Brougham and Vaux: My Lords, is my noble friend aware that most councils apply this law unwillingly and then only after complaint? Does he agree that this leads to uneven and selective enforcement, which clearly restricts the freedom of choice to which the present Government are committed?
The Earl of Caithness: My Lords, it is up to each local authority to consider how best to discharge its duty under the Act.
Viscount Tonypandy: My Lords, is the Minister aware that if he is as wise as I believe him to be he will not touch this matter at all? He will leave it to the common sense of the British people. Illogical or not, they like their British Sunday.
The Earl of Caithness: My Lords, that is one point of view that we are taking into account when reviewing the situation.
Lord Taylor of Blackburn: My Lords, is the Minister aware that in places such as Lancashire, where one town takes a certain action and the next town five miles away takes another action, that brings the whole matter into complete disrepute and local authorities are crying out for the Government to give guidance on the problem?
The Earl of Caithness: My Lords, Lancashire is not unique. The Government gave very good guidance but unfortunately it was not accepted in another place.
Lord Norrie: My Lords, can the Minister give an indication of the number of successful and unsuccessful prosecutions during 1986? Can he tell us whether those prosecutions applied predominantly to the DIY trade and garden centres?
The Earl of Caithness: My Lords, I cannot give the breakdown that my noble friend wants, but in 1986, 611 defendants were proceeded against and 543 were found guilty of offences in connection with Sunday opening.
Lord Peston: My Lords, does the Minister not agree that this could all be dealt with extremely easily, simply by repealing this nonsensical legislation?
The Earl of Caithness: My Lords, I think your Lordships' House gave a very clear indication about how it felt on this matter on a previous occasion.
Viscount Mountgarret: My Lords, cannot small shopkeepers be left alone to make their own arrangements instead of being dictated to?
Lord Graham of Edmonton: My Lords, will the Minister confirm that the law in respect of Sunday trading is clear, unambiguous and enforceable? Is not this proved every week by those local authorities which have the will and respect the law? They are bringing successful prosecutions whenever they choose to do so. Would it not be good advice to those who call themselves supporters of the law but who at present dislike it that they should support it until it is changed?
The Earl of Caithness: My Lords, I am sure that every single Member of your Lordships' House would seek to uphold the law. I recall a discussion in which the noble Lord took part on Sunday racing and the question of the opening of betting shops where a slightly different point of view might have been expressed, albeit inadvertently. I believe that the law is not terribly clear on this matter. There are a lot of anomalies, which is why the Auld report was so right in saying that it needed a complete overhaul. As the House will recall, your Lordships did not find that any compromise removed the anomalies.

Chlorofluorocarbons
3.4 p.m.
Baroness Nicol: 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, in view of possible effects on the ozone layer, they are satisfied that correct advice on disposal methods is being given to small users of solvents containing chlorofluorocarbons (CFCs).
Lord Beaverbrook: My Lords, chlorofluorocarbons (CFCs) are relatively non-toxic, inert and non-flammable products. The electronics industry and the dry-cleaning industry are, through their trade associations, already taking steps to encourage better housekeeping of the CFC-solvents which are used. The measures in the Montreal Protocol on the production and consumption of CFCs should give added stimulus through the operation of market forces to recycling and the recovery through controlled destruction of these chemicals.
Baroness Nicol: My Lords, I am grateful to the noble Lord for that perhaps rather predictable Answer. But is he aware that the solvents marketing branch of ICI advises small users—there are now many thousands of them in the electronics

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industry—to take their waste and tip it on ashes so that it may thereby evaporate? Is the Minister aware that there is international feeling now about allowing CFCs to evaporate into the atmosphere because of the damage to the ozone layer? Are the Government going to do anything about this advice?
Lord Beaverbrook: My Lords, there is no doubt that conservation of CFCs is to be encouraged. The Government believe that this will be stimulated by market forces. After all, nobody deliberately destroys valuable goods that they have bought in the process of their business. But CFCs are relatively non-toxic, inert and non-flammable. They represent no direct safety hazard. So normal waste disposal arrangements should suffice. The Government are fully committed to the Montreal Protocol, which seeks to assist in conserving the ozone layer by prudent limitation of production and use of CFCs.
Baroness Ewart-Biggs: My Lords, in view of what my noble friend said, can the Minister say whether he is aware of the instructions that ICI gives to its small users? Does he know whether other producers of chemicals, such as Du Pont, issue the same very unsatisfactory instructions?
Lord Beaverbrook: My Lords, I am not aware of what every producer of CFCs advises its customers. I could not possibly be. We believe that market forces should govern sensible use of CFCs.
Lord Hatch of Lusby: My Lords, what is the noble Lord talking about—market forces in connection with CFCs? What on earth is the Montreal agreement about? Is it not to reduce market forces and to control them? Can the noble Lord answer two specific questions which arise from the Answer given to me by his noble friend Lord Belstead on this same subject? First, does the Montreal Protocol allow an increase in the production of CFCs? Secondly, why is it that if some countries can label their aerosols saying whether they do or do not contain CFCs, the Government do not issue an order that it should be done in this country?
Lord Beaverbrook: My Lords, it is correct that the Montreal Protocol allows an increase in the production of CFCs. This is to give flexibility for production rationalisation and to provide supplies for developing countries. It does not give any increase in consumption to what is commonly known as the Group of 77—those are the developed nations. As regards aerosols, the Government believe that the limitation on CFCs in aerosols will lead to an increase in the use of CFCs in other products.
Baroness Nicol: My Lords, I am sorry to come back to this, but I think that my Question has been misunderstood. Is the Minister aware that market forces do not enter into my Question, because it concerns solvents which are being disposed of because they have been contaminated, are no longer useful but still contain CFCs? Will he undertake to look again at the Question if I table it again and come hack with a more satisfactory Answer?
Lord Beaverbrook: Of course I shall look at the matter again, my Lords. If I can come up with any more information, I shall write to the noble Baroness to let her know.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware that a much greater risk to the ozone layer exists as a result of the destruction of the Amazon rain forest?
Lord Beaverbrook: My Lords, that may be the case, but I think it is possibly another Question.

Business
3.7 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Criminal Justice Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during this adjournment the Building Societies (Limited Credit Facilities) Order 1987, the Building Societies (Provision of Services) (No. 3) Order 1987 and the Parliamentary Constituencies (Wales) (Miscellaneous Changes) Order 1987 will be taken.

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

Consolidated Fund (No. 2) Bill
Read a second time; Committee negatived.
Then, Standing Order No. 44 having been suspended (pursuant to Resolution), Bill read a third time, and passed.

Criminal Justice Bill [H.L.]
3.10 p.m.
Report received.
Schedule 1 [Amendments of Extradition Act 1870, Backing of Warrants (Republic of Ireland) Act 1965 and Fugitive Offenders Act 1967]:
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
Page 108, line 26, leave out ("facts on which his return is granted") and insert ("particulars furnished to the Commonwealth country on which his return is grounded").
The noble and learned Lord said: My Lords, along with Amendments Nos. 3, 5, 13 and 14, this

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amendment is intended to cope with a problem that was raised during the Committee stage on the use of the words "evidence" and "facts". It was the view of some of your Lordships that the terminology used in Part I of the Bill was somewhat inconsistent, and that this inconsistency was being added to by the amendments placed before the Committee. An undertaking was given by my noble friend Lord Caithness to consider the points that were made then.
The amendments before your Lordships seek to get round the problem identified in the earlier consideration of the matter. It is intended that the provisions covering specialty should relate to "particulars" which had been furnished in support of an extradition request. This avoids the difficulty caused by reference to "facts". As the noble Lord, Lord Mishcon, pointed out in Committee, something may be found to be a fact or it may be found not to be a fact. That is not perhaps a shattering revelation but in relation to the matters that were then in issue it was an important point to make.
In Amendment No. 5 the term to be used in Clause 4 is, for obvious drafting reasons, different. There, it is our view that on reflection a simple reference to the "offence" will cover adequately both the facts or alleged facts of the matter and the law under which the person was accused. Amendment No. 13 rectifies a drafting defect. A fugitive is returned in respect of an offence, not on the ground of that offence. I beg to move.
Lord Simon of Glaisdale: My Lords, I trust that it is not inconvenient if I mention at this stage something about the Marshalled List. I imagine that most of your Lordships make notes on the Bill of the numbers of the amendments on the Marshalled List. When we collected the Marshalled List this morning that was virtually impractical. In one case, there was no number printed. In other cases, a digit was cut out. In other cases still, the numbers were under the staples. The Marshalled List was reprinted. Perhaps I may make one comment and one plea. What happened was in no sense the fault of the noble Earl or his department. However, it is the sort of thing that inevitably follows if we try to over-legislate and to legislate too urgently. We discussed that matter last Wednesday.
My plea is this. In view of the difficulties that, under the circumstances, many of us have undergone, would noble Lords in moving amendments allow time for us to cross-reference? My noble and learned friend on the Woolsack has just given us a model of how to deal with a grouping of amendments. Could that model be followed, and in particular, could noble Lords with young and agile minds make some allowance for those others of us?
3.15 p.m.
Lord Mishcon: My Lords, as one who hopes that he has a young and agile mind, perhaps I may be permitted to thank the noble and learned Lord the Lord Chancellor for drawing attention to the extremely original thought of mine that sometimes a fact can be shown by evidence not to be a fact. The
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amendments that have been moved today remove any ambiguity of language and I am sure that we are all obliged for it.
Lord Hutchinson of Lullington: My Lords, I wonder whether the noble and learned Lord can assist me. Under Clause 3(4)(b) we now have particulars,
"in respect of which his return was ordered".
We have under Clause 4(2)(b) "particulars". We have under the schedule "particulars of the facts". The point was made in Committee that nowhere in the procedure to be followed before somebody is extradited can one find the word "evidence" used. Yet the word "evidence" appears under Clause 6(4). We shall be discussing that shortly. Although the words "particulars of the facts" are mentioned as the foundation for the authority to proceed, which is the whole basis of this procedure—that the Secretary of State has to look at the particulars of the facts—when it gets to the magistrates' court, we have under Clause 6(4) for the first time:
"the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person".
Further down, under Clause 6(8), when the magistrate is deciding in the normal case he has to see that the evidence would be sufficient,
"to warrant his trial if the extradition crime had taken place within the jurisdiction of the court".
I certainly find it difficult to understand what the distinction is between facts and the evidence and why we do not have the word "evidence" through the earlier procedure.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Mishcon, for welcoming these amendments. I am extremely sorry that my noble and learned friend Lord Simon of Glaisdale should find himself in any difficulty. Certainly, anything that we can do to assist in clarification in the course of the debate will be done. I do not for one moment accept the distinction which he makes between persons of a young and agile mind and himself. Those of us who know him know that, whatever his age, his mind is an extremely agile one.
The noble Lord, Lord Hutchinson of Lullington, wishes me to explain the distinction between particulars of an offence and the evidence for that offence. In a sense I am slightly surprised that that should be a difficult question. The particulars of the offence are the details of the allegations which are made in the complaint or other documents setting out the offence. I believe that it is a familiar phrase from the indictment rules requiring that there should be a statement of the offence and a statement of the particulars of the offence. The evidence is what is tendered when the case comes to trial, or where proceedings are required in respect of committal. The evidence is what is tendered in order to persuade the tribunal of fact as to whether or not these particulars of allegations have been established. This is a fairly well known and basic distinction of our ordinary law, and it is on the basis of that distinction that these amendments have been drafted. I hope that they meet the point made by the noble Lord, Lord Mishcon, and others in the course of the Committee stage.
On Question, amendment agreed to.
Clause 2 [Orders in Council as to arrangements for extradition]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 2:
Page 4, line 1, leave out subsection (5).
The noble Lord said: My Lords, I think the position in relation to the second grouping of amendments—Amendments Nos. 2, 6, 7, 8, 9 and 10—is that your Lordships may feel that Amendments Nos. 2 and 8 are consequential in the sense that if Amendment No. 7 succeeds then Nos. 2 and 8 are purely consequential on the success of Amendment No. 7. Amendment No. 7 should therefore be regarded, I respectfully suggest, as the principal amendment to be considered in the context of this grouping. Thus if Amendment No. 7 were to fail, Amendments Nos. 2 and 8 would fall.
Amendments Nos. 6 and 10 are amendments brought forward by the Government which concern the fugitive making representations to the Minister and there being a power available to him to seek judicial review of the Minister's decision on these representations. I therefore respectfully suggest to the House that it would be premature to hear arguments on Amendments Nos. 2 and 8 which are consequential on No. 7 and that the better course might be to consider No. 7 at the same time as Nos. 6 and 10.
Lord Denham: My Lords, if I may come in at this stage, this is the generally accepted way that the House proceeds. I understand that Amendment No. 2 is a paving amendment to the noble Lord's definitive amendment later. Normally in this House we discuss the whole matter on the paving amendment. If any decision takes place, it takes place on the paving amendment. It is generally accepted that the result on that amendment governs the result on the substantive amendment later. I think we would be getting into a great deal of difficulty if we varied the procedure in this case.
The Lord Chancellor: My Lords, I should have thought that the noble Lord, Lord Irvine of Lairg, may be able to deploy the main argument in respect of any of the amendments. In view of the position as explained by my noble friend the Chief Whip, it may be wise that he should consider raising the main argument under Amendment No. 2. When replying to that I shall be able to indicate the substance of the amendments that the Government are proposing on the central issue of this matter, and then the result of any Division that there may be on Amendment No. 2 would determine the matter of principle.
I hope that this course may commend itself to the noble Lord and that he will feel able to follow it. I do not think it matters much from the point of view of substance on which particular amendment the matter arises. The question is one of important principle and it is one on which we could presumably deploy the full argument on any particular amendment.
Lord Irvine of Lairg: My Lords, conscious as I am that I am speaking to an amendment which appears to me to be purely consequential upon an argument of principle which your Lordships will have to
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consider on Amendment No. 7, nonetheless I address your Lordships ostensibly, as it were, on the subject of Amendment No. 2; but, as I have said, it is purely consequential upon the main issue in Amendment No. 7.
Viscount Whitelaw: My Lords, perhaps I may come in for just a moment, because I think the correct word is "paving" and not "consequential". It is not just a form of words; it is actually an important matter.
Lord Irvine of Lairg: My Lords, I accept that it paves and is not consequential. The main argument on this issue is that it is a grave matter to send a man or a woman to face trial in a strange country, perhaps a country they hardly know, whose language they do not speak, where they have no friends or family to turn to for advice and support, no lawyer with whom they are familiar, and no Member of Parliament of either House to champion them. Such a person, although still presumed innocent, will be far more cut off from his roots than a person remanded in custody in his own country. For our part we find it almost inconceivable that we should be extraditing a person to a country other than his own without at least a judicial examination of the evidence against him.
If I may venture to quote the words of my noble and learned friend Lord Elwyn-Jones in the debate on this subject at Committee stage on 20th October, he said, at col. 37 of the Official Report:
"it is quite wrong that a British national or indeed any national who is in this country should be extradited to face trial abroad on the basis of evidence which would not be sufficient to commit him or her for trial should he or she be prosecuted in this country. It imposes complete inequality of treatment as between one proceeding and another".
There has been, and there can be, no serious denial that the prima facie requirement is an important civil liberty and that it is being taken away. The reason is that a number of continental countries want extradition on demand. It is unwelcome to them to have the evidence in support of the charges that they are bringing forward judicially evaluated in England. They do not want an English court to decide whether there is a case to answer, and the Government are weakly, we would submit, yielding to them.
After a full debate, the gravest disquiet was expressed from many quarters in the Committee. For example, the noble Earl, Lord Onslow, said at col. 42:
"The argument seems to be that some of us on this side would be just about 'happyish'—
and I quote him—
"if the Minister took his decision with evidence. It strikes me that it is not the Minister's job to hear evidence. It is the job of the magistrate. Therefore why do we not leave it exactly where it is? Why should we give foreign governments powers over our citizens which we do not take ourselves?"
The noble Earl ended his contribution to the debate by saying that he had not heard anything which made him think that the case for overriding our historic liberties had been put with any conviction whatever.
The noble Earl, Lord Caithness, in replying, said that he differed from those who had stressed the prima facie safeguard as an important civil liberty. In reply to the noble Earl, Lord Onslow, he said, at col. 46:

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"I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case".
A heresy has grown up about Scottish practice in extradition cases. The noble and learned Lord the Lord Chancellor is of course uniquely qualified to confirm that the prima facie requirement is as much a requirement of Scots extradition law as it is of English extradition law. First, there are in practice very few extradition cases heard in Scotland. This is because arrests are made in Scotland on a warrant issued by the metropolitan magistrate in London and he proceeds on an order from the Secretary of State. The warrant is enforceable in Scotland without the need for any independent judicial endorsement in Scotland. Then the individual concerned is brought to Bow Street and there the prima facie safeguard applies.
Next, the Act deals with a special case where a crime has been committed on a vessel on the high seas which has put into a port in the United Kingdom. Suppose that it is a Scottish port. In these cases there is an extradition request; the sheriff takes the place of the Bow Street magistrate and applies the prima facie requirement.
Finally, there are cases where it would be prejudicial to the health of the individual concerned for him to be taken from Scotland to Bow Street. In those cases Parliament requires that the case should be heard by the sheriff principal or the sheriff of the place of apprehension. In hearing that case the sheriff is deemed to be a police magistrate within the meaning of the Extradition Act, and therefore in Scotland the prima facie safeguard applies.
The position is—and I invite confirmation from the noble and learned Lord the Lord Chancellor—that in every extradition case that can arise in Scotland the prima facie safeguard applies. I contrast that with what was said by the noble Earl, Lord Caithness, at col. 46 of Hansard in reply to the debate in Committee:
"I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case".
In Commonwealth cases, where the Scottish courts deal with applications under the Fugitive Offenders Act, the prima facie safeguard applies in Scotland in precisely the same way as in England.
The fact is that in cases of extradition, Scotland, in line with England, applies the prima facie safeguard, but in practice there are few extradition cases in Scotland because the individual is arrested there and taken to Bow Street. The point is that the law and practice of Scotland afford no justification for removing in England the benefit of the prima facie safeguard from English persons whose extradition is sought by foreign countries.
There is another and important aspect to this debate. The Government's response to the extreme disquiet expressed in many parts of the House, not least by the noble Lord, Lord Boyd-Carpenter, about the removal of the prima facie safeguard is: give the fugitive a statutory right to see the papers on which the extradition request is sought from the requesting state and give him a statutory right to make
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representations to the Secretary of State within a very few days of committal. Then, if judicial review of the decision to order the return of the fugitive is sought, defer the return of the fugitive until judgment is given.
Those noble Lords who in Committee experienced the gravest disquiet at what the Government would have this House do in removing the prima facie safeguard should see this response as an embarrassingly transparent piece of window-dressing. It should convince no one at all.
In place of the prima facie safeguard we have what is a mouse of a right: to make representations but not about the evidence that may lie behind the allegations. Let us suppose that the individual in his representations to the Secretary of State says, "The statement of so-called facts put before the court is wrong. Here are signed statements from witnesses to prove it. Would you please see them and hear them? Please could I be told what evidence and what witnesses this European country has to support its allegations in what it calls a statement of facts?" In those circumstances the Minister will say this: "It is not for me. I have nothing to do with evidence and the courts have nothing to do with evidence. Parliament legislated away the prima facie safeguard in 1987. That apart, I have considered your representations with great care but off you must go". That is totally unappealable.
I make the confident forecast that no judicial review will ever succeed because the only issue will be whether the Minister read the representations and thought about them. This remedy is no substitute whatever for the prima facie safeguard. It is a mouse of a right. It is a simulacrum and a sham and it should be rejected by the collective conscience of this House.
Amendment No. 2 paves the way towards Amendment No. 7. The great issue, and the only issue, is whether this House will insist upon the retention of the prima facie safeguard in all cases. I beg to move.
Lord Lloyd of Kilgerran: My Lords, before the noble Lord sits down, it is with the greatest temerity that I, as a Silk at the Patent Bar, should presume to intervene at this stage among the Titans of the criminal law. However, I listened to what was said by the noble Lord, Lord Denham, and the noble and learned Lord on the Woolsack a few minutes ago as regards postponing this issue for discussion to a later stage. I should like to ask the noble Lord, Lord Irvine of Lairg, whether it would not be in the interests of the House to postpone the discussion until the later stage of the Bill in order to save time. I may be entirely wrong, but I heard what was said by the noble Lord, Lord Denham—I do not often agree with him—and I heard the noble and learned Lord the Lord Chancellor ask for a postponement of the discussion in order to save time on the Bill.
Lord Mishcon: My Lords, I think that for once the noble Lord, Lord Lloyd of Kilgerran, is wrong, even if for once he agrees with the noble Lord, Lord Denham. As I understand the situation, my noble friend was called upon to rise in order to deal with the whole of the matters which began with the paving

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amendment, Amendment No. 2. My noble friend asked whether he could delay the debate, and the ruling of the House, through the noble Lord, Lord Denham, was: get on with it and deal with the whole area under discussion, and do it under Amendment No. 2, which is the paving amendment. For my noble friend to be castigated for doing what he did under the guidance of the House is a little unfair.
Viscount Whitelaw: My Lords, needless to say, the House will appreciate that I have taken advice before saying what I am about to say. No one would expect me to know this without first taking advice, and it is perfectly plain and clear. It is that in the normal way we discuss the paving amendments and that leads into discussions as regards the other amendments. I understand that to be the normal way in which the House proceeds and the noble Lord, Lord Irvine, has acted correctly, if I may say so to the noble Lord, Lord Lloyd. He acted upon the advice that was given to him at the time.
Lord Lloyd of Kilgerran: My Lords, I have been reproved by the noble Lord, Lord Mishcon, and now by the Leader of the House. I was trying to be helpful from a procedural point of view but, as I was entirely wrong, I apologise to the House for having intervened on this occasion.
Lord Campbell of Alloway: My Lords, I wish to oppose Amendment No. 7 because it goes to the heart of the matter. It was aptly described by the noble Lord, Lord Mishcon, at the Committee stage as being the issue. Are we to retain the prima facie rule or are we to have an administrative decision? That is the issue and it is within Amendment No. 7, the crucial government amendment with which we are concerned.
I oppose the amendment because I support the principle that, subject to certain safeguards as to court procedure—for example, whether or not an offence is a political act—reciprocity, as a matter of international comity, demands that we now abandon the prima facie rule. The decision, as with other signatory states to the convention, must now be an administrative decision. I have already made that point (and my remarks can be found at cols. 18, 19, 38 and 39) and would not dream of repeating it. My support for this principle was conditioned by the express assumption that this administrative decision would be subject to judicial review as it exists today and as it will develop from time to time. It is only in the interests of justice as between the individual and the state that such should be the case and any misuse of administrative power should be subject to review by a body such as, for example, in France the Conseil d'Etat and the administrative courts in many other states on many grounds including want of sufficiency of evidence.
That leads one straight to the other side of the problem which is raised by Amendment No. 10, because under that amendment it is now apparent that judicial review will lie. However, it will not lie in the ordinary way in which I certainly thought that it would lie. I respectfully suggest that the order, which is an administrative order of the Secretary of State, should take the form of a reasoned decision on the
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basis of the evidence adduced unless national security or interests of state are involved. If such is the case it should be stated in the order and of course be conclusive for all court purposes.
Secondly, I respectfully suggest as a matter for consideration that this novel curtailment of the scope of judicial review, which is to be found nowhere else in our law—and I am open to correction on that point—and which one finds in one area at the foot of the page, is not acceptable because it could work injustice where there was no evidence sufficient to justify making the order.
For those reasons, although the spirit of Amendment No. 10 is entirely welcome and broadly acceptable as a whole, I ask my noble and learned friend who sits on the Woolsack whether he will perhaps give further consideration to those suggestions before Third Reading. Alternatively, can he allay the fears that I have expressed or expose them as being wholly misconceived, as may well be the case? They are genuine fears and expressed, I hope, with appropriate humility.
There is a further matter that arises, because my noble friend the Minister expressly envisaged that certain documents would be furnished: first, documents emanating from the requesting state, with a full statement of facts describing the alleged conduct; secondly, evidence as to identity; thirdly, evidence as to the law of the requesting state. I am not quoting the Minister's words verbatim because they can be found in the Official Report, Vol. 489, No. 20, at col. 45; I am merely seeking to give the substance of what he envisaged. I merely advert to the fact that in Amendment No. 10 there appears to be no reference to any of these matters and, as this is the occasion for only one speech and this is a serious matter of principle, I wondered whether somehow or other Her Majesty's Government could take further time for consideration.
3.45 p.m.
Lord Hutchinson of Lullington: My Lords, I support this amendment. However, as mine is the first name of those tabling Amendment No. 7, I shall concentrate my remarks on that amendment, which is the crucial one that the House is to discuss. Your Lordships will remember that when this amendment was moved in Committee, as has already been mentioned, it gave rise to expressions of view that varied between out-and-out condemnation, anxiety and unease. Once again I should like to spell out the remarkable, indeed revolutionary aspect, of Clause 6(4) to which Amendment No. 7 refers.
At present when a foreign state alleges that a person within our jurisdiction has committed a crime in that state, it must provide evidence which is publicly in court at Bow Street sufficient to satisfy the experienced stipendiary magistrate there that it would warrant committal if the same crime had been committed in this country; that is, a prima facie case. The accused may be represented and the evidence may be examined publicly as to its quality, credibility and sufficiency.
Under this Bill that procedure will continue in respect of requests from all Commonwealth countries

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and from the United States of America, but as regards foreign states described by the Secretary of State as "respectable European countries", Clause 6(4) prohibits the Bow Street magistrate from considering the sufficiency or the quality of the evidence that is being produced. The procedure under Clauses 4 and 6 will therefore consist of a request to the Secretary of State from the foreign state which includes three items: particulars of the person, particulars of the facts and of the law and a warrant of arrest.
I suggest—and this is why I asked the question of the noble and learned Lord in relation to the earlier amendment—that on those particulars which are particularly not described as evidence (the particulars of facts containing hearsay, opinion, hearsay on hearsay or whatever) the Secretary of State will issue an authority to proceed. He will have received those three items and will issue an authority to proceed on that basis. That authority will be sent down to Bow Street, a warrant will be issued by Bow Street and the person will be brought before the court.
What is the role of the magistrate under Clause 6? It is solely to satisfy himself that the alleged crime is indeed an extradition crime. That can be found at Clause 6(8) and it is all that the magistrate will do. If the alleged crime is an extradition crime, he must then issue a certificate and commit the person to await the Secretary of State's decision finally to extradite.
The noble Lord, Lord Campbell, described that procedure as a purely administrative act and from these Benches it was described as "extradition on demand". The noble Lord was perfectly right. He also said it was the price that we had to pay to enable us to adhere to the European Convention on Extradition. It is not the price that we shall have to pay. It is the price that the citizen who lives under our jurisdiction will have to pay.
There will be no public presentation at all of the facts. There will be no review by any court of those facts. There will be no opportunity for the accused to test or contradict those facts. The court will be a clear rubber-stamp of the decision of the Secretary of State. And who will draw up this statement of facts—which is different, as the noble and learned Lord pointed out—on which the whole of this procedure depends? That statement no doubt will be drawn up by some executive in the foreign state who is very eager to secure the return of the fugitive. No doubt he will be on the telephone or on the telex to his counterpart in the Home Office saying, "Will a statement in this form or that form be acceptable to your Minister?".
That is the mischief of bureaucracy, of internal, unseen executive acts as opposed to open, impartial, judicial examination of evidence according to well-established and accepted principle—that which the Home Secretary has had the audacity to describe as a shield against justice. Are all those Commonwealth countries, are the United States of America, the wielders of that shield against justice? The Home Secretary has had a distinguished career in the diplomatic service and no doubt to him the demands
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of the Foreign Office appear more important than those of the rule of law, but I hope your Lordships will take a different view.
At the end of our debate in Committee on 20th October, the noble Earl at col. 52 of the Official Report gave an assurance that he would discuss the matter urgently with his honourable friend Mr. Patten, that he would come back at a later stage and that he would indeed consult your Lordships between then and Report so that we could endeavour if possible to get something that would satisfy all sides. I wish it to be on the record that there was in fact no consultation whatever. There was a meeting with the Minister last Thursday and at that meeting we were presented with a fait accompli. We were presented with the intentions of the Government set out in a letter which I have in my hand written to a Member of the other place— not to any noble Lord in this House—and the amendments which we now see on the Marshalled List.
Speaking for myself, the constructive ideas which one took to that meeting, hoping that there would be some attempt at a consensus, were simply not discussed. The Government's proposals, I regret to say, are clearly cosmetic and it is important that your Lordships appreciate that. The contents of this letter, which was released to the press—and some of your Lordships may have seen the result in the press—I have to say are highly economical with the truth. Indeed they amount to veritable parsimony, in my view, with this much abused constituent.
The letter states:
"Some commentators have erroneously suggested that our proposals would reduce the granting of extradition to an executive function. This is quite wrong. The Home Secretary's discretion … remains a long-stop against individuals being extradited who risk facing an unfair trial but the key decision will continue to rest with the courts".
The key decision will not remain with the courts and, unless the Minister has something to say about that, I suggest that that is a most misleading observation.
The letter goes on to say:
"When dealing with other stable liberal democracies it is invidious to try and gauge whose system of justice, taken in the round, is superior".
We do not seek to gauge one system against another but only to ensure quite simply that no one is dispatched to stand trial under an unfamiliar system, in a foreign language, under a different legal system, with many months of incarceration in a foreign gaol, to face compulsory interrogation without a public judicial examination of the reliability and sufficiency of the evidence.
Finally, the letter alleges, as no doubt the Minister will allege today, that the need to establish a prima facie case is the biggest stumbling block to successful extradition by our responsible European neighbours and that the credibility of our international commitment to tackling crime is at stake. Once again, I fear that this is hyperbole rather than factual truth. All extradition from England, Scotland and Wales is dealt with at Bow Street Magistrates' Court and the facts are to be found there, accessible to the Home Secretary, accessible to myself, and here they are for consideration by your Lordships.

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Between January 1985 and today there have been 89 cases at Bow Street seeking extradition. Of those 89, 62 have been successful, 29 have been discharged and only seven of those discharges were on the grounds of insufficiency of evidence. So there were seven out of 89 cases since the beginning of January 1985. What a block on the European desires to extradite people from this country—only seven out of 89 failed on that basis! Seven were withdrawn before the fugitive was arrested, in five cases the fugitive returned voluntarily, two of them died, in two cases the evidence did not arrive within the time limit and in one case it turned out to be the wrong person identified. Your Lordships will see by that narration that there are many reasons why applications for extradition may fail.
Also in the letter France is highlighted as having a 50 per cent. failure rate and two cases failed on the ground that statements made by co-accused had not been made on oath, when in French law it is not permitted for a statement to be made on oath.
What are the facts? The facts obtained from Bow Street are these. In the four years between 1984 and 1987 France made eight applications of which five were successful, two failed and one fugitive was never arrested. The two cases mentioned cannot be traced and the allegation made in that letter is very surprising, because Bow Street knows, as anybody who is involved in extradition law knows, that there is no requirement for statements to be made on oath. There are cases which establish that.
Turning from facts as opposed to hyperbole, let me turn shortly to the concessions, so-called—Amendments Nos. 6 and 10. What are these concessions? First, there is a statutory right of the fugitive to see the papers on which the extradition is based.
That is breathtaking, is it not? It is breathtaking in the revelation of the authoritarian nature of this new procedure. How could the legislation have ever been drafted without a right being given to the accused to see the evidence on which he was being extradited? How gracious of the Government now to give that concession.
The second concession is a statutory right to make representations. The noble Lord, Lord Irvine of Lairg, has already referred to that in Amendment No. 10(1B) on the Marshalled List. The first thing to notice about that right is that it can only be exercised after the fugitive has been committed by the magistrates' court and not before.
In putting questions to the Minister at our meeting it became clear, as the noble Lord, Lord Campbell of Alloway, has appreciated, that no representation will be acceptable that seeks to query or examine the sufficiency, the credibility or the quality of the evidence. In Committee, the noble Lord, Lord Boyd-Carpenter, demanded the right to full argument with evidence and representation by counsel. There is no such right in this second concession, as it is called. There is no right to call any evidence, no right to an oral hearing and no way of attacking a corrupt, biased or mistaken witness.
The third concession is judicial review. This is an entirely empty concession. There are only three
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grounds on which judicial review can be mounted. I am sure that I shall be corrected from the Cross-Benches if I am wrong about that. The first ground is illegality. Has the magistrate or the Secretary of State gone wrong in law? The second ground is irrationality. Is his decision so outrageous as to be in defiance of logic and one that no sensible person could possibly have arrived at? The third ground is procedural impropriety. In other words, has he failed to follow the rules which are laid down? Those are the only grounds on which this matter can go to judicial review.
On the sufficiency or the quality of the evidence there can be no judicial review, as the noble Lord, Lord Campbell of Alloway, has pointed out specifically in this amendment. Therefore if the Minister follows the simple rules set out in Clauses 4 and 6 his decision cannot be assailed. If the magistrate finds that an extradition crime is alleged his decision cannot be assailed.
If we wish to adhere to the convention there is no need to abrogate the evidence rule. We can make reservations, as other countries have done. I quote the reservation of Israel as an example:
"Israel will not grant extradition unless it is proved in a court in Israel that there is evidence which would be sufficient to commit for trial in Israel".
If Israel and other countries which adhere to the convention can do that, why cannot we do that? I ask the Minister to tell us why.
I have some constructive suggestions which I should have put to the Minister if there had been consultation. For example, we can relax the rules of evidence here in favour of foreign governments, as is done in the United States of America. We could refuse to extradite our own nationals, as the amendment of the noble Lord, Lord Irvine of Lairg, which we shall discuss later, suggests.
I have been a passionate supporter of the European ideal. I left the Labour Party largely on that issue. I believe equally passionately in our long tradition of liberty and justice, the principle of all citizens being treated equally before the law, the principles of natural justice and the openness of procedures that involve the liberty of the subject. I suggest that the Government surely should be asked to think again.
Lord Boyd-Carpenter: My Lords, it is natural and understandable that lawyers should attach greater importance to adopting the best possible rules of procedure and should perhaps give less weight to the broad intergovernmental considerations which arise in this as in many other cases. But your Lordships' House has the difficult task of weighing the one to some extent against the other.
I fully share the views that were expressed at some length by the noble Lord, Lord Hutchinson of Lullington, in favour of the system which we operate in this country. I believe that our legal system is probably better than that of any other country in the world. We need not spend very much time in arguing that. But the practical problem is this. It is obviously important, particularly in these days of international terrorism, that we should be able to join the European convention. It is a fact, whether we like it

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or not, that the system of procedure and justice exercised in the major European countries is different from ours. We think ours is the better. I have not the slightest doubt that they think theirs is the better. Therefore we must consider whether some sacrifice in what we regard as the ideally best system is or is not justified by the very important public considerations of our being able to adhere to the convention.
Your Lordships heard what the noble Lord, Lord Hutchinson of Lullington, said about the possibility of entering reservations. He quoted the case of Israel. I should be interested to hear either from the noble and learned Lord the Lord Chancellor or from the noble Earl how far that is a real possibility and how far that has been examined with our European friends. But I am bound to say that I start from the assumption that any radical alteration, any radical movement away from the European system and from a decision by the Secretary of State, is not a feasible achievement.
I do not believe that Her Majesty's Government, who no more want to bring trouble on themselves than any of the rest of us, would have introduced this particular part of the Bill if they had thought that possible. That would seem to involve an almost masochistic wish to inflict hurt on themselves. Therefore I consider this from the point of view of seeking to balance the ideally best—the British system of adjudication—in these cases against the very real and important advantages, particularly in the present world situation, of adherence to the convention. That surely is the problem.
It was with that in mind that in Committee a good many of my noble friends and myself concentrated our attention on securing improvements in the system proposed by the Bill. That system would be acceptable to our European friends. I wholly agree with noble Lords opposite that as the Bill was introduced what was proposed would undoubtedly have been in certain respects oppressive and unfair to the person sought to be extradited.
As some of your Lordships will recall, for that reason I pressed my noble friend as to the question of the full working of judicial review and in particular as to whether it would be possible to send the accused person out of the country before the procedure of judicial review had gone its full course. Several amendments of that kind were moved and discussed from these Benches in the hope that we could alleviate some of what seemed to be the difficulties in the Bill as it was introduced.
I think that the Minister and the noble and learned Lord the Lord Chancellor have responded extremely well to the points that we made. Amendment No. 10 contains considerable improvements. Those do not go as far as the noble Lord, Lord Hutchinson of Lullington, would like or as far in one respect as my noble friend Lord Campbell of Alloway would like. But I hope your Lordships will feel that they amount to a very considerable improvement within the framework of a system of decision-making by the Secretary of State for alleviating what seemed to be some of the difficulties which the system was going to cause.
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When one is concerned with practical legislation, one must be concerned with the two points which I should like to leave with your Lordships. The first is whether we should be right to risk inability to adhere to the convention by insisting on 100 per cent. continuance of what has been the British system and what will, as has been pointed out, continue to be the British system in respect of extradition to other non-European countries.
Secondly, we must ask ourselves whether the Government, under some criticism at Committee stage, have not produced sufficiently substantial alleviation of the system to justify support. My own view is that some of us should feel ungrateful if, having had our points of view met so well and so fully, we did not feel able to support the Government. They have done very nearly all that we asked of them. Therefore the amendment, and in particular Amendment No. 7, should be rejected.
4.15 p.m.
Lord Grimond: My Lords, I do not fully share the optimism of the noble Lord, Lord Boyd-Carpenter, that governments always choose the course of freedom and enlightenment unless they are compelled by force majeure majeure and foreign treaties to do otherwise. I should be particularly interested to hear the answers to three questions which have arisen during the debate. Up to now, I should have thought that the case deployed by my noble friend Lord Hutchinson and the noble Lord Lord Irvine, was absolutely overwhelming. I am astonished that there should be any doubt that this House should go against the arguments put forward.
My first question concerns the fact that at an earlier stage it was not so much the convention which was used as a powerful argument by the Government but rather the fact that we must extradite criminals. They were using the law and order argument that criminals were escaping because of the extradition system in this country. Are the Government relying on allegations that innumerable criminals are escaping justice because of our extradition procedures? That argument seems to me to have been knocked on the head by the noble Lord, Lord Hutchinson. Do the Government accept the noble Lord's statistics, which I understand come from the court itself? If so, what has become of the French allegation that they have given up proceedings of extradition from this country because so many of their criminals have been enabled to remain here?
Secondly, do the Government agree with my noble friend Lord Hutchinson that amendments have been made to our laws of evidence which would satisfy the convention and could be put into operation?
Thirdly, I think that at Committee stage my noble friend Lord Hutchinson said that those countries which are demanding that we go against all the principles of our law themselves refuse to extradite their own citizens. Is that true? If so, that again seems to knock on the head the suggestion that those countries have any particular right to demand that we change our law in the way indicated.
Those are matters of fact. I think it is particularly alarming that the Government appear to have alleged

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statistics which are not facts. Before we come to a conclusion, we should get those three questions cleared up. Certainly it will take much more in the way of argument than has so far been advanced to suggest that we in this country should give up our traditions when there are ways, as I understand it, of meeting the convention without doing so, and when no evidence has been produced that by doing so we shall greatly increase the chances of terrorists and other criminals being properly convicted.
Lord Harmar-Nicholls: My Lords, I think we must face up to the fact that we are living in a different world from the world which existed when our procedures were formulated, as described by the noble Lord, Lord Hutchinson. It is a new and different world. The problems, if they are not different, are greater in scope and in the damage that can result. I feel that, quite apart from this Bill, we ought to have in mind making certain that we are bringing ourselves up to date in being able to play our part in bringing ordered government to the rest of the world.
At Committee stage I expressed doubts, and they have been almost completely met. However, perhaps the Minister can clear up one point. The noble Lord, Lord Hutchinson, in explaining the available step by step procedure, said that if the accused wanted to submit his point of view that point of view only came to the Secretary of State after it had been remitted to Bow Street, and not before. I should like to be completely satisfied that the Secretary of State will have the answer of the accused to the documents that he has read before he remits the matter to Bow Street.
Lord Hutchinson of Lullington: My Lords, that would take place after he had been committed from Bow Street. The decision would therefore have been made at Bow Street and the accused would be committed to be sent abroad.
Lord Harmar-Nicholls: My Lords, that helps me; it clears up my doubts. It is absolutely right that Bow Street should make the decision. As I said in Committee, I feel that after the matter comes back to the Minister, who has the final word. The Minister ought to have the statement from the accused so that before a final decision is made both sides are in his mind and in front of him. That will be done if we accept the amendments. My doubts as expressed at Committee stage have been removed, particularly in view of that intervention.
The final point I wish to make, as a layman intervening in what is almost a monopoly of lawyers, is that in matters such as extradition—and perhaps in other matters as well—I am not certain that the nit-picking which is part of the old procedures and which was applauded in the speech made by the noble Lord, Lord Hutchinson, is a good idea. We may not get out of that the justice which we are all after. On matters such as this, there must be a finishing point so that the matter can be dealt with and brought to a proper end. We must take into account, as my noble friend Lord Boyd-Carpenter has said, that if we accept the terms that enable us to accept the convention, we are keeping in step with our partners. It is not for us to
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say that they are denying justice by applying their particular procedures.
My doubts, as expressed at Committee stage, are satisfied, and I shall be happy to accept the Bill as it will stand with the amendments that have been put forward by my noble friend.
Lord Harris of Greenwich: My Lords, perhaps I may ask the noble Lord a question. He said a few moments ago that he was delighted to hear that the magistrate was going to make the decision and that this was absolutely right. Does he realise that the magistrate will not be making a decision on the evidence?
Lord Harmar-Nicholls: My Lords, he will be making the decision. If the objection is to there being no appeal to the Court of Appeal, the final decision will be made by the Secretary of State under the Bill. The Secretary of State will have the accused's own defence in detail so that he can arrive at what he thinks will be a justified decision.
Lord Morton of Shuna: My Lords, there is continual reference to Bow Street. I was pleased by the reference in the Bill to the Sheriff of Lothian having something to do with the matter. It is a pleasure to note in Clauses 5 and 6 that Scotland has a jurisdiction. Under these amendments, however, it seems that it has not. The rules in Amendment No. 6 are to be made under the Magistrates' Courts Act 1980 which so far as I know, does not apply to Scotland. The rules in Amendment No. 10 are to be made under the Supreme Court Act 1981. Is there to be a right of judicial review in Scotland or not? If there is, perhaps the noble and learned Lord when he replies, perhaps with some Scottish bias, can make clear those cases that will be regarded as Scottish and those regarded as English. There is nothing in the Bill to decide which case goes where.
Lord Denning: My Lords, I should like to say one word. Up to now, in order to extradite a person there has had to be prima facie evidence before the magistrate at Bow Street. I can understand that that involves our obligations under the convention. All well and good; let it be altered. I gather that the Bill gives the decision to the Secretary of State. The particulars have to be put before him. He may have particulars on both sides. He then makes his decision. I agree that this step is in accordance with the convention. There is then the important safeguard in Amendment No. 10 (1G) which states:
"At any time…the person to whom the order would relate may apply for leave to seek judicial review of the Secretary of State's decision to issue the order".
On one point I join with my noble friend Lord Campbell of Alloway. Amendment No. 10 (1M) states:
"Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order".
Judicial review should not be circumscribed in any way. There should be a proper application of judicial review to ensure that the Secretary of State has acted properly.

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That is my only objection. I join hands with my noble friend Lord Campbell of Alloway that it is all very good except Amendment No. 10 (1M).
4.30 p.m.
Lord Mishcon: My Lords, it is correctly said that lawyers perhaps try to take the monopoly of wisdom and discussion in your Lordships' House when matters of this kind are being discussed. It is wrong for the House to think that that is so. The issues here are important for every one of our citizens. It would be an insult to suggest that your Lordships could not readily grasp the issues involved. They are very simple.
The existing law provides that, before we can send out a citizen from our country to a strange one to be charged with an offence, he has to come before a court. We have great faith in our courts, and I hope that we always shall. There is the safeguard not of a transient Minister looking at something from an administrative point of view but of a qualified lawyer who has met with the distinction of being appointed a stipendiary magistrate. The safeguard is that, before someone can be sent by extradition to take his chance before a foreign court, the learned magistrate has to be satisfied that there is a prima facie case against him, not that the case is shown to be proved beyond reasonable doubt. In ordinary language, that means it looks as though he has a case to answer. That has been a safeguard for our subjects for many a long day.
Europe comes along with a convention. Subject to the interesting point as to whether it would be all right to sign the convention but to insist upon the prima facie rule, the Government—without yet having answered the question—are saying to all of us that this age-old protection for our subjects has to go because there is inconvenience somewhere with our European partners. The noble Lord, Lord Harmar-Nicholls, says that we live in different days. I hope that we shall never live in different days in the sense that we shall want to give up without good reason the fundamental principles of the liberty of the subject.
It is suggested, as I say, that the prima facie rule is to be given up. Has anyone paused to think—I say this with all humility—where we are going down this slippery slope? Europe is responsible for our doing this. We do it out of co-operation and friendship because of our membership of the European Community. Is Africa less just than Europe? Is Asia to be deemed less just than Europe? Where is it going to end? How long can we resist the call from other countries not within the European Community when we endeavour to have extradition treaties with them? Are we to say, "You are not as good as Spain"? Spain—as the noble Lord, Lord Boyd-Carpenter, knows from Question Time, especially over issues like Gibraltar and the use of the airport there—"is terrifically reasonable, extremely just." Has Greece had such a history of justice and good government? Possibly it has in centuries gone by, but not in recent times. Are we to say that countries outside the European Community also must have, when they ask for it, exemption from our prima facie rule?
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I repeat that it is a slippery slope. I believe that the noble Lord, Lord Hutchinson, suggested that there might be some Foreign Office influence being brought to bear. I cannot see much Foreign Office diplomacy in giving way on the prima facie rule to the European Community and being called upon to advise the Foreign Secretary and the Home Secretary, "Do not give way on the prima facie rule when you are entering into a convention with country "Y" which is outside Europe. Tell them they are not as good as the people within the European Community with their system of justice." What a slippery slope that is. It is not a matter for lawyers; it is a matter for responsible parliamentarians to understand.
The Government endeavour to shift us away from that and to do away not only with the prima facie rule but also with anything that suggests that the stipendiary magistrate at Bow Street has any duty at all except to put his rubber stamp on a document. This goes now not to a stipendiary magistrate trained in the law and permanent in his position up to pensionable age. It goes to the transient Secretary of State—a worthy soul at the moment who has, I am sure, the respect of this House wherever we may sit. But who in your Lordships' House would forecast that those words could be used for every one of his successors?
However, it is the Secretary of State, part of the executive branch and not of the judiciary, who in future will have in hand the whole destiny of a subject whose extradition is sought. When the Government moved in that direction, the noble Lord, Lord Boyd-Carpenter, and those in your Lordships' House who fight so zealously for freedom—I say this with no disrespect—spoke up valiantly at Committee stage. They said to the Minister—I am sure I am fairly paraphrasing the speech of the noble Lord, Lord Boyd-Carpenter—that the Minister had better be careful before he tried the loyalty of those who sit on Government Benches. There must be safeguards. The raw clause, as it then appeared, did not commend itself to many Members of the Committee, wherever they sit.
The Government and the Minister took the clause away. I am not going to grumble about the lack of consultation between Committee stage and Report. I shall grumble if there is no real consultation on this issue between Report and Third Reading. On the last sitting at Committee stage we had a discussion about judicial review. Everybody thought, be it lawyer or layman, that this was possibly the answer if you are to move away from the courts to an administrative act of the Secretary of State. At least there would be judicial review.
I humbly rose and said that I thought judicial review would not be available on the issue of raising the adequacy of evidence. The Minister, in his reply, was as honourable and honest as he always is. He said that it was a matter he would have to look into. However, I recall one noble and learned Lord telling me that I was wrong and that judicial review in regard to looking at the evidence available would be open to the subject. The noble and learned Lord who said so is now nodding his wise head. It was the noble and learned Lord, Lord Denning.

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We now have Amendment No. 10. We have gone away from our old tradition. The courts are not there any more; it is an administrative act. Judicial review, says the noble and learned Lord, Lord Denning—subject to a very wise remark that he made thereafter about subsection (1F)—is to be available. I ask myself: on what? What is the point of a judicial review when one is prohibited from raising the point as to whether there is any evidence at all upon which an extradition order can be made?
Is the point to be made—I am not being facetious with your Lordships—that the Secretary of State was irresponsible that evening and that there is evidence of the fact that he over-indulged himself at a dinner party? Is it to be suggested on judicial review that the Secretary of State did not read the papers? What else can you do if acting on behalf of someone whose extradition is sought but say on judicial review, "But this man is innocent. He says he is innocent, and there is no evidence against him"? But you cannot do it. You cannot do it because of subsection (1M). You are barred.
We are doing something desperately serious here, and I do not, I hope, exaggerate. I am now speaking personally and it may well be that others sitting on my Front Bench who are much more learned than I shall ever be will differ from me. However, I venture to say that to rush into the Division Lobby in support of, "No, in spite of the European convention and everything else, we keep the prima facie case rule and we do it before magistrates alone; we favour that and want it" or to vote for an amendment which shifts the whole of this onto administration and the executive and debars the rights of judicial review on the one material matter that counts, would be sheer recklessness and make a mockery of your Lordships' Division Lobbies.
What really ought to take place is this. The Minister—I say this with respect to the noble and learned Lord the Lord Chancellor—should say that there is enough strength of feeling in this House to justify thinking again before Third Reading, having proper consultation before Third Reading, and arguing out subsection (1M) before Third Reading, to see whether it ought not to go. We need to argue the case for a retention of the powers, rights and traditions which we have had over the centuries and which should not easily be tampered with because of a European convention.
I have one last comment to make after that rather heavy subject. I noticed in Amendment No. 10, as I suppose your Lordships did, one safeguard in subsection (1C):
"A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B) above".
I welcome, with all my colleagues in the legal profession, the opportunity of arguing before the court that the whole of the extradition proceedings are a nullity and that the order made could be set aside because I deem the language of this notice not to be ordinary but extraordinary.
Lord Trafford: My Lords, I was one of those who expressed reservations about this matter in Committee. Like my noble friend Lord Boyd-
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Carpenter, I feel that the Government have moved considerably towards meeting many of those reservations. I was fairly happy when I read the amendments, in particular Amendment No. 10, and especially when I reached subsection (1G). However, as has been said by the noble and learned Lord, Lord Denning, my anxieties returned somewhat when I read subsection (1M).
It still seems to me—I hope that the Minister will be able to reassure me on this point—that there is no overwhelming virtue in the retention of that part of the amendment and that its deletion would meet most of the requirements—certainly those expressed on this side of the House, in particular by my noble friend Lord Campbell of Alloway. In all other respects I am grateful to the Minister and to the noble and learned Lord the Lord Chancellor for having met my reservations. On this issue it would seem to me not unreasonable if the Government were to look again at the necessity of retaining subsection (1M) in what is otherwise an excellent series of amendments.
Lord Ackner: My Lords, I wonder whether your Lordships will allow me to say just a word on the subject of Amendment No. 10(1M) and in particular on the subject of judicial review. It is not a modern panacea to achieve a form of appeal; it is a procedure to attack, not the merits of the decision, but the decision-making process. It seems to me that there is confusion in thinking that without subsection (1M) there would be a right of appeal on the merits of the decision. Subsection (1M) takes away from the judicial review process one of its vital constituents—that is, the right to challenge an irrational decision, a decision which no reasonable person would make.
Why the Government should require that protection for the Minister I for the moment do not follow. If a Minister has acted wholly irrationally then there should clearly be access to the courts. I think that there may be confusion in thinking that judicial review gives the right to attack the merits of the decision, whereas it attacks only the decision-making process.
That brings me to my second point. When my noble friend Lord Hutchinson mentioned the three constituents of judicial review he referred to the "breach of rules", not completing the vital sentence, "breach of the rules of natural justice". I cannot find anything specific in the amendment that provides to the applicant—the person who wishes to challenge the order—any right to be told the basis upon which the order is sought to be made. The rules of natural justice are merely rules of fair play. I cannot for the moment—no doubt I have misread something—see how the person has the opportunity to make full representations unless he is provided with particularity of the very basis upon which the proposed order is to be made.
Amendment No. 5 seems to make matters worse, because the Minister no longer receives particulars of the facts but particulars of the offence. I cannot find any express provision—no doubt it is my incompetence. I have been involved in other problems earlier in the day. I think that the obligation upon the Minister to give full particulars as to why

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the order is sought should be spelled out. Without those particulars, the rules of natural justice seem to me to be offended, because one cannot prepare one's answer to the charge unless one knows what the charge is about.
Those are my two points. In short, if judicial review is to be allowed, subsection (1M) should go out, otherwise we emasculate judicial review, and if judicial review is to stay in, with the obligation to make a decision according to the elementary rules of natural justice, there must be a clear obligation to give full details of what is alleged against the person who wishes to make representation.
4.45 p.m.
Lord Hutchinson of Lullington: My Lords, before the noble and learned Lord sits down, if subsection (1M) goes, there would still be no possibility of taking a case to review on the sufficiency or credibility of the evidence.
Lord Ackner: My Lords, as I understand it, without subsection (1M) one can attack the Minister's decision on the ground that it is irrational. Under judicial review one cannot attack the merits of the decision as one would by way of appeal. As I understand it, judicial review is designed to see that the decision-making process has been conducted in accordance with the law, not irrationally, and in compliance with the rules of natural justice.
Lord Moran: My Lords, as a layman, I intervene in this debate with considerable trepidation. I listened carefully to the arguments in favour of the amendment put forward with great eloquence and ingenuity by the noble Lords, Lord Irvine, Lord Hutchinson and Lord Mishcon. But I must confess that I did not find them wholly persuasive.
We are after all talking not about citizens being sent away to some grisly fate but to face a trial in another country in Western Europe. The real question that should concern us is whether a person extradited from this country will or will not receive a fair trial. Consequently, we should, I am sure, only have extradition arrangements with countries where those accused of offences can expect to be given such a trial. It must be for the Government to judge which those countries are.
Having then restricted extradition arrangements to those countries, I think we should make the actual procedures as simple and as expeditious as possible. It is surely right that persons accused of terrorism, fraud, drug trafficking and other crimes should face trial with the minimum of delay in the country where the alleged offence has taken place and that terrorists and murderers should not evade justice because of technicalities.
We know that in the recent past the procedures have not worked well, at any rate for some countries. For a foreign country with a different, but possibly equally valid, legal system, it has often been difficult in practice to prove in a British court that there is a prima facie case against a suspect.
As I understand it, the Spanish Government became so exasperated with their inability to get
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wanted persons delivered from the United Kingdom to face charges in Spain that they denounced their extradition treaty with the United Kingdom. As a consequence, as we all know, numbers of British criminals were able to settle safely in Spain on what became known as the "Costa del Crime". That was hardly in our interests or those of the Spaniards.
Again when with the help of the Irish Government we have sought to extradite persons wanted to face terrorist charges, our efforts have on a number of occasions been frustrated by the Irish courts on pure technicalities.
As I see it, what has caused the trouble in this country has been the requirement that the requesting state should submit prima facie evidence in a form admissible in English court proceedings. The Government's proposal to remove that requirement seems to me in the light of experience to be fully justified, as we are talking only about those countries which have fair and honest legal systems.
There should, I believe, be the minimum of technical hurdles. There have been too many in the past, so that this country has become something of a haven for criminals, including some accused of the gravest crimes. I think that is wrong. Consequently, we ought, I suggest, to reject Amendment No. 7.
Lord Harris of Greenwich: My Lords, I am not quite sure what evidence the noble Lord, Lord Moran, possesses that this country has become a haven for foreign criminals. Having been a Home Office Minister for five years, no such facts were ever drawn to my attention at any ministerial meeting, through the Foreign Office or through any other source. I hope very much that we are going to make a decision about this very grave matter on the basis of evidence and not on the basis of fairly wild assertions of that sort.
The issues before us were very fully deployed during the Committee stage. I took particular notice, and I am sure the Government did also, of what was said by the noble Lord, Lord Boyd-Carpenter, on that occasion, and also what was said by a number of his noble friends.
The noble Lord, Lord Boyd-Carpenter, in his speech this afternoon said that at Second Reading this Bill was oppressive. He said that there is now considerable improvement. He said that there had been substantial alleviations.
I wonder what these substantial alleviations really amount to, particularly after the speech we have just heard from the noble and learned Lord, Lord Ackner. What is this massive sea change with which we are now confronted? What is the huge difference that we now see before us?
There are three issues which have been identified in government Amendment No. 10 and set out in the letter from the Home Secretary to Mr. Stanbrook. The first is that the person in peril of being extradited will see the papers. To be absolutely frank, it never occurred to me that he was not going to see the papers. I am not sure whether on the last occasion the noble Lord, Lord Boyd-Carpenter, took the view that the person in such a situation was not going to see them. It did not occur to me that the Home Office—
Lord Boyd-Carpenter: My Lords, if the noble Lord will allow me, I should like to say that the noble Lord referred to me, but I simply point out to him that as the Bill started there was no specific provision that the person concerned should see the papers, and there now is.
Lord Harris of Greenwich: My Lords, that is undoubtedly true, and to the extent to which it is set out in the Bill it is now explicit rather than implicit; and that is an improvement. In my view, it is no substantial improvement. It does not represent a major change in the position of the Government.
The two issues which involve substantial change in the position of the Government are these. The first is the question of a judicial review. I do not propose to go over that ground again because the noble and learned Lord, Lord Ackner, dealt with it very fully and I think most of us agree with everything he said.
The other issue is the question of representation. What do representations amount to? What is particularly interesting is: what does the noble Lord, Lord Boyd-Carpenter, imagine that they amount to? I give him the point that it is now spelt out on the face of the Bill. But let us examine again the example which I gave in the debate at Committee stage. A British national returns from Italy. He is not an international terrorist. He may be accused of committing a serious assault on an Italian police officer while on holiday.
The Italian Government ask for him to be extradited. We now know that the magistrate will have no power to examine the evidence on which he makes a determination of the matter. He has no power whatever. The one right the person at risk of being extradited possesses is the right to make representations to the Secretary of State. What does that actually amount to? I should be very grateful if we could have some assistance on this matter from the noble and learned Lord the Lord Chancellor.
Is the accused going to be given an oral hearing? If I may go back to the example I gave at Committee stage, it is alleged by the Italian authorities that he was identified by an Italian police officer as the person concerned and the basis of his defence is that it was a false identification—an error of judgment, either honest or otherwise, by the Italian authorities. Before he is sent to Italy on the basis simply of a process of certification—because that is all we are talking about here—is he going to have the right to have his views on the matter conveyed orally to the Home Office officials who are going to make a recommendation to the Secretary of State?
My suspicion is that he will not have any such right, so I think the noble Lord, Lord Boyd-Carpenter, will find, when the noble and learned Lord speaks, that these major improvements he detected are a result of a rather optimistic evaluation of the Government's position at the moment. Suppose a person is denied the right of making oral representation in what is going to be an act by the executive. I should like to draw the noble Lord's attention to this fact. He cited the example of international terrorism, which is a very serious matter. At the moment, if a person is going to be removed from this country under the terms of the
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Prevention of Terrorism Act and taken either to the Irish Republic or somewhere else, he has the right to make oral representations to an adviser nominated by the Secretary of State. Is a person in the situation I have described going to have any similar right?
We should have no doubt what we are talking about. To those who constantly use the term "international terrorism". I say that in the overwhelming majority of cases we are not talking today about international terrorists. We are talking about a whole range of people who are accused of different criminal offences. It seems to me essential that there should be the clearest statement from the noble and learned Lord the Lord Chancellor as to what are going to be the rights of the person who wishes to make those representations. Will they be equivalent to those rights under legislation specifically designed to deal with the question of international terrorism? Or will they, as I suspect, be far less substantial?
The other two issues I should like to touch on relate to some of the arguments which have been used to justify this very substantial change in our procedures. We have the letter sent by the Home Secretary to Mr. Stanbrook, dated 12th November, which the Government have very kindly made available to us. They point out the difficulties which have arisen. I have no doubt that difficulties have arisen in a number of cases and it would be foolish to suggest that no problems have ever arisen in extradition cases.
I am sure that the noble and learned Lord the Lord Chancellor will share my surprise at the suggestion that the Austrians have been so remarkably unsuccessful since 1933. It is not perhaps the most powerful argument in the Government's case because of the fact that Herr Hitler was responsible for the affairs of Austria very soon after 1933. I should have thought it mildly surprising if any British court had sent back an alleged offender to Austria in such circumstances.
Finally, perhaps I may ask the noble and learned Lord this question. Given the fact that there is going to be a withdrawal if we accept the Government's proposal of the prima facie rule, what happens if an error is made? What is the attitude of the Home Secretary going to be to the person who is removed to Italy and then found by an Italian court to be innocent of the offence for which he was extradited? The Home Secretary is the person who decided to allow him to be removed to Italy. Two years later, perhaps after the man has been committed and kept in custody in an Italian gaol awaiting trial, it is found that he is wholly innocent of the offence for which he was extradited. Will the Government give him any right of compensation for the error committed in this country? These are interesting questions and many of us look forward to hearing the reply of the noble and learned Lord.
5 p.m.
Baroness Macleod of Bone: My Lords, before the noble Lord sits down—I am making a comment, as I may on Report—I am sure that he would not wish the House to think that the noble Lord, Lord Moran,

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has less knowledge of what he is saying than the noble Lord has. He has just resigned as Ambassador to Portugal and has had a very long history in the diplomatic corps. He therefore knew what he was talking about.
Lord Harris of Greenwich: My Lords, I think when the noble Baroness examines what I said she will find that the point she has made has no validity whatever.
The Earl of Perth: My Lords, I rise with considerable hesitation for two reasons. One is that I was not present at the Committee stage and the second is that I am no lawyer. Other noble Lords may be in the same position. We may have to go into the Lobby, one way or the other, tonight. The problem seems to me to hang on one single issue; that is, subsection (1M) in Amendment No. 10. I say that because I heard the noble Lord, Lord Campbell of Alloway, and other noble Lords drawing attention to this, particularly the noble and learned Lords, Lord Denning and Lord Ackner. The noble Lord, Lord Mishcon, made the suggestion that the Government should defer this until such time as there has been consultation and then come forward at Third Reading. I can understand that suggestion but I am not sure that it is very satisfactory.
What I hope is possible is that whoever is to answer for the Government will say "Please believe that we shall go ahead on a thorough review of subsection (1M) before we come to Third Reading. On that basis we ask you not to support the amendment". If we had that as an assurance I should feel much happier about which way to go. It goes a long way towards meeting the point of the noble Lord, Lord Mishcon, and it would meet the worries of many of your Lordships who have spoken today.
Lord Havers: My Lords, I intervene because I was slightly concerned about the speech of the noble and learned Lord, Lord Ackner. What I say is designed to be helpful to the Minister. I had read Amendment No. 10, subsection (1M) as meaning evidence in its true sense and therefore fitting with the abolition of the prima facie rule. But having heard the noble and learned Lord, for whom I have the greatest respect as a lawyer, I am a little concerned, just as I am a little concerned with the other point which he made about particulars being given to the person who is under the threat of being extradited. That can be easily done, but I should feel more reassured if the Minister either in winding up today or if necessary at Third Reading can give the House an assurance that Amendment No. 10 subsection (1M) was designed to cover the abolition of prima facie and did not go so far as to affect irrationality.
Lord Bonham-Carter: My Lords, I hesitate to speak. I speak as a layman and I had not intended to speak. But the arguments I have heard in Committee and this afternoon from the Benches opposite have so astonished me that they have—I was going to say rendered me speechless, but that would be an inaccurate description of what I am doing.
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The arguments which have been presented to laymen from the Benches opposite seem to me to be in direct contradiction of what I have always believed to be the doctrines of conservatism. It was the noble Lord, Lord Harmar-Nicholls, who said that we were living in a new world to which we must adjust, apparently by adjusting the principles on which our judicial system has been based for many centuries and has grown over many centuries. I think he referred to the extremely convincing speech of my noble friend Lord Hutchinson as nit-picking. I do not say that he necessarily meant that, but if it was nitpicking I think we could do with some more of it in this House.
The arguments that have been put forward are astonishing to me, particularly coming from the Benches opposite. We have been told, first, that we are living in a new world to which we must adjust by abandoning systems of justice that have been developed over hundreds of years. Secondly, we heard from the noble Lord, Lord Boyd-Carpenter, that in the matter of conflicts of interest between the Government and what I think he called judicial procedures or legal procedures—he will correct me if I have the phrase wrong—
Lord Boyd-Carpenter: My Lords, the noble Lord could hardly have got my speech more wrong. What I said was that there was a natural affection on the part of lawyers for our traditional procedures—an affection which I share—but that your Lordships' House and the Government had to weigh the matter very carefully when an important matter like the international convention was also in issue.
Lord Bonham-Carter: My Lords, I accept the noble Lord's accurate repetition of the words he used, which I remember less accurately than he did.
It is the contemporary patron saint of conservatism, Adam Smith, who said that wherever one saw two producers talking to each other one must assume that there was a conspiracy against the consumer. It is my view that it has been a tradition in British politics that wherever one sees two Ministers talking together one must assume that the interests of the individual public citizen might be at risk and that it is the duty of the Opposition to expose that. I therefore feel that where this careful balance, of which the noble Lord, Lord Boyd-Carpenter spoke, between the preoccupations of lawyers—who in this case I am glad to say are concerned with defending the rights of an individual and, I may say, the rights of the innocent individual—and the interests of the Government, my natural predisposition would be to be in favour of the lawyers and to be highly suspicious of the motives of the Government.
Thirdly, we have had arguments from the opposite Benches, from the Conservative Party, that we must abandon in the case of extradition the principles of natural justice on which we have all been brought up. The Minister shakes his head, but he will have an opportunity later to answer the arguments both of the noble and learned Lord, Lord Ackner, and of my noble friend Lord Hutchinson. Having listened to the arguments today and in Committee, I am fairly convinced that we are being asked to abandon the

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rules of natural justice on which I have been brought up, which every employer has to follow, which every officer in the army has to follow and on which the whole basis of British justice is built. I find it truly astonishing that the great Conservative Party of Edmund Burke should be advocating this here today. It was he who said that we have a responsibility for the past, we have a responsibility for the present and we have a responsibility to those who have still to be born. It seems to me that those responsibilities are being abandoned in a cavalier way.
Fourthly, the Government are asking us to abandon, to deny or to give up the separation of powers on which our constitution has not been written but on which it has always been based. In the distinction between the role of the judiciary and the role of Ministers the Minister is being asked to act in a judicial capacity. The separation of powers is something which we should preserve.
We have been given three arguments why these major abandonments of important traditions are found to be acceptable. First, the noble Lord, Lord Boyd-Carpenter, told us that he cannot believe that the Government would have done it unless it was necessary. I confess that I find that argument less than convincing. When I see the things that this Government have done I find it most unconvincing.
Secondly, we are told that significant concessions have been made. The speeches of the noble Lords, Lord Hutchinson and Lord Mishcon, have made it clear that those concessions are cosmetic, transparent and virtually without value. Thirdly, we are told that we have to do it because we are members of the European Community. Like the noble Lord, Lord Hutchinson, I have long been a passionate advocate of our joining the European Community. Indeed, in 1958 I tried to move an amendment in the other place advocating just such a course when the party opposite was resolutely opposed to it. But still I believe that there are other ways in which we can be good members of the European Community without abandoning the heritage of British law.
Nor, as some people have suggested, are we saying that English law is better than anybody else's law. All we are saying is that English law is our law. We have developed it and we have found it satisfactory. We think it should be preserved. I hope that noble Lords on the Benches opposite will remember their old traditions and their historic role and will conserve the traditions of English law.
Lord Sefton of Garston: My Lords, I did not intend to speak and I hoped that somebody else would say what I am about to say. I shall be very brief. The noble Lord, Lord Moran, said or implied that really we are not talking about the be all and end all of a serious matter but are only sending somebody to be tried in a court that we consider to be just. That is a brief summary of what the noble Lord said. Nobody replied to that. It seems to me that that accepts the proposition that through a process of what may be law in this country an individual, one of our kinsmen, can be sent abroad to be tried for a crime. Is that not rather serious? I rather suspect that in his journeys
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around the world the noble Lord, Lord Moran, has lost touch with ordinary people.
I have recently experienced the suffering of people being extradited who maintained that they were innocent. I have seen their families go through torment and anguish. They claimed that they were innocent. But here we are talking about extraditing somebody and seeming to imply that it is not a serious move. Of course it is a serious move and of course one could be tearing a family to pieces. One could be doing it on the basis of removing the right of a person to give evidence and for that evidence to be examined before he is committed to what, for him, is a terrible situation. It is a right that this Chamber has always advocated.
5.15 p.m.
The Lord Chancellor: My Lords, in seeking to deal with the matters of principle that arise on Amendment No. 2 and the later amendments to which the noble Lord, Lord Irvine, has referred, it is important to begin by looking at the background against which this question arises. A number of noble Lords have indicated some degree of hesitation in entering this debate on the basis that they are not lawyers. I should like to start by giving my understanding of the procedure that we have in mind as a result of the various amendments which the Government have proposed, taken along with the original proposals.
The noble Lord, Lord Bonham-Carter, talked about the separation of powers. It is vitally important to remember that the extradition procedure with which we are dealing starts with a judicial act in the foreign state. It is a judicial warrant issued in the foreign state as part of a criminal process in that state. It is not started by a foreign government. It is started by a judicial officer in a foreign state as a result of proceedings taken before him. The second point is that before this requirement that is fundamental to these amendments is dispensed with, there must be a mutual recognition between the United Kingdom and the foreign state that the system of justice in that foreign state is sufficiently acceptable to enable this requirement, which I shall call the prima facie rule for the moment, to be dispensed with in this country.
What happens is this: the judicial officer in the foreign state, the requesting state, issues a warrant. He issues it on the basis of information which has been put before him. We have concluded after examination of the matter that that is a reasonable judicial proceeding as part of an accepted system of law.
It is traditional and obviously convenient that instead of courts communicating directly, one to another, requests from one court in one country to the courts of another country should go through the diplomatic channels of those countries. Accordingly, when it comes to executing a warrant issued, let us say, in France, in this country the request must come through the Government. But when that request comes, according to Clause 4 of the Bill, as amended,

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in the light of the provisions that we are now considering there shall be furnished:
"particulars of the person whose return is requested; the particulars of the offence of which he is accused or was convicted (including information sufficient to justify the issue of a warrant for his arrest under this Part of this Act); in the case of a person accused of an offence, a warrant for his arrest issued in the foreign state".
It is essential that these particulars, plus the warrant, come with the request. That is the foundation of the proceeding. That is the same kind of proceeding as would apply against a person resident in that state.
It is important to bear in mind that the basic extradition Act of 1870 on which this has been grafted generally applies only to offences committed within the territorial jurisdiction of the requesting state. As many of your Lordships know, it is perfectly possible in some foreign systems for the state to try offences committed outside its geographical boundaries. If there is a system of that kind available, where, for example, France can try its nationals for an offence committed beyond France, it is perfectly natural that it should prefer to try these nationals itself rather than send them abroad to the other country.
However, our system of law is and has always been that the procedures for trial in this country are of such a kind that it is extremely difficult to have extraterritorial criminal jurisdiction, and accordingly our courts generally will only deal with offences committed within the territorial jurisdiction of the United Kingdom. There is an exception in relation to murder, manslaughter and the Scottish equivalent, culpable homicide, but generally these are the rules. One has to have that in mind in comparing our system with other systems. It was said that some foreign systems do not allow their own nationals to be extradited. They may cope with that by trying them themselves for offences committed abroad. But when we do not have that we must take account of it in considering our extradition arrangements.
The warrant arrives with the supplementary particulars and information to which I have referred. It is then the subject of an order to proceed by the Secretary of State issued to a judicial officer in this country. Up until now the situation was that such extradition matters to be dealt with by a judicial officer in this country were to be dealt with by the police magistrate at Bow Street. This Bill recognises that there is a possibility of justice being dispensed in Scotland in extradition matters and makes provision accordingly, which I am sure your Lordships would welcome.
The result is that there is a judicial hearing at Bow Street. At Bow Street the judicial hearing will be concerned with three principal questions. The first is whether the person subject to the arrest in this country and brought before the magistrate in Bow Street—I am taking Bow Street now as the paradigm example—is the person whose extradition has been sought and who is the subject of the foreign warrant. That is the first question. The second question is whether the offence, or offences, in respect of which his extradition is being sought are indictable offences within the meaning of the statute. The third question is whether these offences or any of them are political
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offences, in which case no warrant of commital would be granted.
The magistrate at Bow Street has to deal with these matters as a judicial officer. He is proceeding on the basis of the warrant granted by his colleague in the requesting state. He deals with it dealing principally with the questions to which I have referred. Of course he is open to argument and evidence, for example, that the offence in question is a political one and that no warrant of committal should be granted.
At this stage the accused has had the judicial process in Bow Street: he has had served on him a copy of the material provided under Clause 4; and he has now got a warrant from the magistrate at Bow Street against him authorising his committal for extradition. What is proposed is that at that stage the accused person should have the fullest opportunity of representing whatever he likes to the Secretary of State against the extradition. Any reason he has; any reason he may have.
At this stage I should like in passing to mention the example that the noble Lord, Lord Harris of Greenwich, gave of some person whose extradition was sought to Italy, and was contending that the indentification in Italy was mistaken. Of course, as your Lordships who understand the phrase "prima facie evidence" know, the question of whether the evidence is credible or incredible, whether it is wrong or right, is a question that will have to be decided at the trial. If there is evidence from somebody who indentifies the person, and that evidence is competently given in proper form, then there is prima facie evidence that that was the person.
In this procedure which we are proposing the Home Secretary would have perfect entitlement to consider as part of the representation a question such as the noble Lord, Lord Harris of Greenwich, raised. He could represent that the evidence of this Italian policeman was subject to various difficulties, various inhibitions, possibly something about the lighting or the circumstances in which the evidence was given. The Home Secretary would be perfectly entitled to consider that and consider the weight to be attached to it, and, if he thought that representation was a good one, to give effect to it.
A noble Lord: But how would he know?
The Lord Chancellor: The noble Lord asks me a question somewhat silently but sufficiently for me to pick it up. He asks how would the Home Secretary know? Well he would know in exactly the same way as the magistrate at Bow Street would know, because the magistrate at Bow Street is not to decide the case. He is not there to try the case. Conflicts of evidence are, generally speaking, matters for trial but the Home Secretary would certainly have a right to look at, and a duty to look at, the representations in the light of all the circumstances, and he might well feel that the representations were sufficiently strong for him in the exercise of his discretion—because he has no duty to order extradition—not to allow this person to be extradited.
The representations are representations at the conclusion of the judicial proceedings at Bow Street, and any representations are open. There is a full and

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unrestricted right to make representations. Of course the Secretary of State in considering these representations might well find it necessary to follow them up, for example, with a request for further information to the requesting state, or the like.
At that stage, when he had considered fully the representations and all the other matters before him, the Secretary of State would have a duty to come to a conclusion. That conclusion, if it was against the person to be extradited, would be in the form of a notice of intention to proceed. At that stage the amendments that we propose provide that the intention will not be given effect to until after an interval sufficient to enable an application for judicial review to be made. That application for judicial review would be open on all the grounds on which judicial review has been developed by the courts of this country as a safeguard for the propriety of administrative action.
My noble and learned friend Lord Ackner has described these, and I would not venture to repeat what he said. He pointed out that the process of judicial review is a process basically to ensure that the decision-making process has been properly carried through; that the matters that have to be considered have been properly considered, and that rules of law which apply have been properly applied.
This brings me to Amendment 10 and in particular to the last part of that amendment on page 3 of the Marshalled List, which has been the subject of somewhat distinguished criticism. This is (1M), which provides:
"Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order."
My noble and learned friend Lord Ackner was inclined to criticise this provision on the ground that whoever thought of it did not fully understand judicial review. Well, I of course can see that views may differ upon these matters, but the idea behind this subsection (1M), was to prevent the requirement of prima facie evidence, or sufficient evidence, coming in by a back door. Not to impose some special restriction on judicial review, but to prevent the substitution of a requirement of this kind in judicial review for the requirement that presently obtains in respect of the magistrate at Bow Street.
These are the procedures and I do not think, with respect, that anyone who has surveyed the judicial creativity that has been exemplified by the development of judicial review over the past period, particularly in England and Wales, can doubt the ability of the courts to secure justice in these matters. There is certainly no attempt in these clauses and these amendments in any way to limit or inhibit the courts' power to do that; to secure that the decision is reached in accordance with the principles of natural justice and fair play according to the rule of law.
The criticism that has been offered of these proposals as I understand it—and I think it would take me unduly long to deal with all of it in detail—is to some extent founded on the misapprehension that the case does not start with a judicial act in the foreign jurisdiction in a legal system which is
118
recognised as being a fair and reasonable legal system operating in that country. I think it is fair to say that over the years what has been called the prima facie rules as applied in practice has been found to give rise to extreme technicality. Various noble Lords have said that it is a simple requirement. It is not so simple to put into English and perhaps that is the reason why the phrase "prima facie rule", or "prima facie evidence", has been used instead of the English.
If one looks at the phrase "sufficient evidence to justify a committal for trial", or something of that kind, it must be sufficient in accordance with the laws of competency in English law, if we are dealing with a jurisdiction exercise at Bow Street. That is by no means a simple matter. Many technical questions have arisen, some of them reaching your Lordships' House in a judicial capacity. I think that I am entitled to say that the judgment of my right honourable friend the Secretary of State for Home Affairs is that the result of the technicalities that have been put in the way of foreign states in seeking extradition in this country is such that a considerable number of people who, in his judgment, if matters were regarded as dealt with on the basis of pure justice, should be extradited are not, in fact, extradited.
The noble Lord, Lord Hutchinson of Lullington, has reminded me that he earlier mentioned the figure seven. I intended to deal with that point in any event but perhaps I should deal with it now. The noble Lord said that if one looks at the results in Bow Street seven cases failed because of the absence of sufficient evidence. Most people who think of starting legal proceedings first see whether or not they are likely to succeed. If for some reason they conclude that they will not be successful then they do not start those proceedings. The noble Lord is referring to the lack of success in cases which have started. However, I do not think that there is any doubt that there are formidable difficulties in the way of foreign extradition of this kind.
One of the difficulties arises from the circumstance to which I have drawn attention and which, in my view, is fundamental. The process starts with an order of a foreign judicial official. That Government cannot influence the process. Can noble Lords imagine a Minister in this country telling the magistrate at Bow Street how to carry out his business? Equally, can noble Lords imagine a judge in a European country—let us say Switzerland—being told by the executive how to carry out his judicial business? There is no doubt that they have found it extremely difficult to present the material in a way which complies with the requirements of English law.
In case it is thought that the matter of prima facie evidence is fundamental to our system, it is worth pointing out, first, that in cases of extradition requested by the Republic of Ireland the prima facie rule does not apply. It is entitled to extradition on a backed warrant because of the history of our connection. The authorities in the Republic of Ireland will proceed on a proper judicial determination in this country. Therefore it is not correct to say that this requirement has been fundamental to all extradition. It is true to say that it has been a requirement under the Extradition Act

119
1870 and that a similar requirement arises under the Fugitive Offenders Act which applies in the Commonwealth.
That does not mean that there are no safeguards for individual liberty except the prima facie rule. There are other ways of dealing with the matter. When my noble friend Lord Caithness dealt with the matter in Committee and said the words to which the noble Lord, Lord Irving of Lairg, referred, he was referring to the fact that in Scotland committal before magistrates on the basis of prima facie evidence is not a requirement of proceeding to trial. The act of putting someone on trial in Scotland is essentially an administrative act of the law officers and their deputes. In practice in Scotland, as a result of long tradition, that has been thought to be a sufficient safeguard for not being put on trial improperly.
In this case we are saying that in the present state of the development of the law of a number of countries to which the provision would be applied, the stage has been reached when we have sufficient confidence in their procedures that warrants for committal will not be granted unless there are sufficient grounds to merit going to trial. That is what this matter is about: the preliminary stage enabling a trial to proceed.
As the noble Lord, Lord Harris of Greenwich, said, the result may be an acquittal. In the same way, people in this country are committed to prison, their family life is severely disrupted by having to wait sometimes for a long period before going to trial (as anyone who knows about prison will confirm) and then they are perhaps acquitted.
Sadly, as a necessary consequence of seeking to do justice, the same may occur in the case of extradition. However, there is generally no greater hardship in that than there is in the situation that I have just described. In recent times the experience of extradition has shown that some foreign countries are more liberal as regards releasing people than procedures here would suggest. It is not without notice that some of those people extradited in connection with the case in Belgium have been released by the Belgian authorities, although they were committed by the authorities in this country in a case that eventually reached your Lordships' House.
In my submission to your Lordships, the principle that we are seeking to establish here is important in giving proper effect to the development of international co-operation in connection with the suppression of crime. It is a logical step when one recognises the strengths of the legal systems of others as well as our own. I believe that in order to accede to the convention it will not be necessary for us to accede to it fully. Of course, we could have a reservation but the real justification for this advance in our legislation is that the result will be effective. We want effective co-operation in relation to this matter across purely national boundaries, between legal systems with mutual respect for one another. For that reason I submit to your Lordships that the amendments in principle should be approved.
A good deal has been said by authorities entitled to great weight about the wording of Amendment
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No. 10 relating to Clause 9 (1M). I have already explained to the House the purpose of that clause; namely, to prevent the requirement of what I have called prima facie evidence, or sufficient evidence, to be taken out by one hand and put back into judicial review by the other. As was pointed out by the noble and learned Lord, Lord Ackner, it is not necessary if one properly understands what judicial review is about. It was included as a matter of caution in order to prevent it being thought that we were bringing in by the back door what we were taking out by the front door. However, if your Lordships see fit to decline to agree to the amendment proposed by the noble Lord, Lord Irvine of Lairg, I shall undertake to look again at the wording of Clause 9 (1M) to see whether we can take account of the concerns which have been expressed in order that the principle which I have tried to describe comes through clearly and unambiguously. For those reasons I invite your Lordships not to agree to the amendment.
Lord Elwyn-Jones: My Lords, before the noble and learned Lord sits down, is he prepared to give an undertaking to the House in regard to subsection (1M)? That will make a good deal of difference to the attitude that the House may take about a vote at this stage.
The Lord Chancellor: My Lords, I am perfectly prepared to give an undertaking to the House that we shall look again at the precise wording of Clause 10 (1M) in order to ensure that it has only the effect which I have sought to explain to your Lordships and not any greater effect. Such is the purpose that we had in mind in putting in Clause 10 (1M), and I certainly give that undertaking. I am of course asking your Lordships to decide now on the fundamental principle of these various amendments. However, I certainly undertake to reconsider the precise wording of Amendment No. 10 (1M).
Since the noble and learned Lord has kindly brought me to my feet, I should perhaps say something in answer to the noble Lord, Lord Morton of Shuna, who pointed out that these proposed amendments did not perhaps entirely meet with the specialties of the Scottish system. It will not surprise him to learn that, because of the history of extradition matters and the fact that so far they have been confined to Bow Street, the full detail of the Scottish aspect of these amendments has not been completely finalised. I hope that at Third Reading we shall be able to satisfy him in detail on that matter.
Lord Irvine of Lairg: My Lords, having neither planned nor desired to open this debate, I find myself in the equally unsought position of replying to it. The noble and learned Lord the Lord Chancellor spelt out what I may call a paradigm of an extradition request commencing in Europe, in which the first step would be a judicial act. There would of course be an anti-judicial act and that would be the decision of the executive or the police authorities to set the procedure in motion. The matter would then come to this country.
From much that the noble and learned Lord said, I received the impression that he did not hold the

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prima facie requirement in English law as a particular safeguard which he valued or cherished. The noble and learned Lord told the House that the prima facie safeguard does not apply in Scotland in ordinary criminal cases when the sheriff commits for jury trial in Scotland. Scotland departs from England in that, but for quite separate, historic reasons. It is quite different in extradition cases, because in extradition cases the prima facie requirement always applies.
Be that as it may, it is nothing to the point. The only concern that I should like to express in replying to this debate is whether the noble and learned Lord's reliance upon the absence of the prima facie safeguard in ordinary Scottish criminal cases indicates some lack of regard for the prima facie case in general and heralds an attempt in the future to remove the self-same safeguard in ordinary committals for trial in England.
I take it to be self-evident and not disputed by any serious argument advanced in this House that the prima facie safeguard is of great value. It applies in every domestic case in this country and there is no question of its being removed there. The proposed legislation to which we object will achieve a standard of justice enjoyed by our citizens in extradition cases lower than that which they enjoy in ordinary criminal cases in this country. Once that basic proposition is accepted, one must ask what principle of comity with our European friends requires us to remove a safeguard whose value everyone acknowledges.
As the noble Lord, Lord Grimond, pointed out, there are many European countries that simply will not extradite their own nationals. Therefore, I ask why we should diminish a cherished and valued civil liberty which our nationals enjoy, when on the whole those countries to which we are referring will not extradite their nationals to us. We are willing to extradite our nationals to them, subject to the safeguard of the prima facie requirement.
In the course of the debate the noble Lord, Lord Moran, raised the suggestion that this country is a haven for criminals. On that subject, I should have thought that the statistics obtained recently from Bow Street by the noble Lord, Lord Hutchinson of Lullington, are statistics which stand, so far as this debate goes, as unanswered and reassuring. All that is said is pure assertion, unsupported by anything that merits the name of evidence; namely, that there are applications that otherwise would be made but are not made by foreign countries because of the prima facie protection.
I find it an entirely plausible view that, ours being a country with sea boundaries and well-regulated airports, it simply does not have the same problems in that regard as have countries with borders that are more regularly and easily crossed. I do not for one minute accept that there is any evidence that this country is a ready haven for criminals in comparison with other European countries. I think it intrinsically likely that we are not. The figures put forward by the noble Lord, Lord Hutchinson of Lullington, for successful applications for extradition made by European countries to our courts show that, when those countries bestir themselves to comply with our
122
perfectly reasonable procedures, such applications are well able to succeed.
One comes to the provision that the Government have brought forward which was designed to meet the anxieties expressed from many quarters in the course of the debate in Committee. Looking at Amendment No. 10, subection (1B) reads:
"The person to whom such an order would relate shall have a right to make representations … as to why he should not be returned to the foreign state".
Having listened to the whole of this debate with a deal of care, I am left in some doubt about the content of the representations that that person may permissibly make.
Then subsection (1C) states:
"A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B)".
I think that, should someone who is responsible for carrying that injunction into effect set out to explain in ordinary language what the right consists of, he will have the gravest difficulty in explaining in ordinary language the content of that right.
I turn to the vexed subsection (1M). Having listened to the noble and learned Lord, Lord Havers, I am bound to say that I too gave subsection (1M) precisely the sense that he did. I understood that it underscored the fact that the prima facie protection had gone and that the subsection was, as it were, for the avoidance of doubt; so that no one should think hereafter that the Secretary of State, as the recipient of the representations, could be placed in the position of the Bow Street magistrate and be required to hear and consider representations on the evidence. I understood from the remarks of the noble and learned Lord the Lord Chancellor that that is indeed the intention.
However, it is of course noteworthy that, as I understood him, that is not how the matter at first sight struck the noble and learned Lord, Lord Ackner. He rightly made the point that judicial review is not a modern panacea to achieve a new form of appeal in which the merits of the underlying decision under challenge are examined by the court. As the noble and learned Lord said, judicial review attacks the correctness of the decision-making process rather than the merits of the decision itself.
The noble and learned Lord's concern was that that provision would take away from the judicial review process the right to challenge the decision as irrational. But how does one attack a decision on the basis that it is irrational because there is no evidence to support it if the Secretary of State is under no obligation to consider the evidence? It is precisely because the Secretary of State is under no obligation to consider the evidence, that the decision of the Secretary of State cannot be challenged as irrational on the grounds that there is no evidence to support it.
It was precisely for that reason that when I ventured to open the debate I made the point that the House must recognise that if someone went along to the Secretary of State and made representations saying, "Well, here are signed statements from all manner of reputable witnesses who would like to be heard by you, if you will hear them, to demonstrate beyond peradventure that these assertions"—

123
because particulars are only assertions; they are not evidence—"are unfounded" the Minister would have to say something like, "Well, then, you cannot say that I am being irrational in saying that you must go there, because you put in front of me evidence which you say shows conclusively that you did not commit this offence. It is no part whatever of my function to consider all the evidence that goes to guilt or innocence. Therefore, because Parliament has legislated away the prima facie requirement—Parliament did not intend to retain it; Parliament did, indeed, put in subsection (1M), as the noble and learned Lord, Lord Havers, correctly said in my submission, so as to underscore it—the prima facie requirement has gone. So I have considered your representations, to the extent that I can, but the one thing that I cannot consider is all the evidence that you would have me consider which goes to guilt or innocence."
I think that the noble and learned Lord the Lord Chancellor said that there were certain respects in which the Secretary of State would consider and evaluate evidence. I understood that to be in reply to a point which the noble Lord, Lord Harris of Greenwich, made. As I understood him, the noble and learned Lord the Lord Chancellor indicated—but I may be wrong—that where there was a pure issue of identification in a case, then the Secretary of State would consider evidence in relation to it. But, as I understood him, he was not saying that the Secretary of State would or, indeed, could consider evidence going to guilt or innocence in the generality of the case. That being so, I am left somewhat puzzled as to how the Secretary of State both could, and would, as regards the procedures that he would apply, consider evidence in relation to identification.
Therefore, I further invite the noble and learned Lord to say whether, in view of the doubts that have been expressed and the difficulties of interpretation that have arisen in relation to subsection (1M), and its precise scope in relation to the identification cases that the noble and learned Lord appeared to envisage, the proper course today would not be to press the amendment to a vote, but instead to take time for consultation and further consideration about the entire subject matter of Amendment No. 10.
The Lord Chancellor: My Lords, is the noble Lord asking to withdraw the amendment?
Lord Irvine of Lairg: No, my Lords.
5.54 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 194.

DIVISION NO. 1

CONTENTS

Airedale, L.

Ardwick, L.

Amherst, E.

Aylestone, L.

Ampthill, L.

Barnett, L.

Annan, L.

Basnett, L.

124

Birk, B.

Longford, E.

Bonham-Carter, L.

Lovell-Davis, L.

Boston of Faversham, L.

McCarthy, L.

Bottomley, L.

McGregor of Durris, L.

Brockway, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McNair, L.

Bruce of Donington, L.

Mais, L.

Burton of Coventry, B.

Mason of Barnsley, L.

Campbell of Eskan, L.

Milford, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Carter, L.

Molloy, L.

Chitnis, L.

Morris of Kenwood, L.

Cledwyn of Penrhos, L.

Morton of Shuna, L.

Cocks of Hartcliflfe, L.

Mulley, L.

David, B.

Nicol, B.

Davies of Penrhys, L.

Ogmore, L.

Dean of Beswick, L.

Oram, L.

Diamond, L.

Paget of Northampton, L.

Donaldson of Kingsbridge, L.

Perry of Walton, L.

Dormand of Easington, L.

Peston, L.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Evans of Claughton, L.

Ewart-Biggs, B.

Prys-Davies, L.

Falkland, V.

Rea, L.

Fisher of Rednal, B.

Ritchie of Dundee, L.

Foot, L.

Robson of Kiddington, B.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Sainsbury, L.

Gladwyn, L.

Seear, B.

Glenamara, L.

Sefton of Garston, L.

Graham of Edmonton, L.

Serota, B.

Gregson, L.

Shepherd, L.

Grey, E.

Silkin of Dulwich, L.

Grimond, L.

Simon, V.

Hampton, L.

Simon of Glaisdale, L.

Harris of Greenwich, L.

Stallard, L.

Hatch of Lusby, L.

Stedman, B. [Teller.]

Hayter, L.

Stoddart of Swindon, L.

Heycock, L.

Taylor of Blackburn, L.

Houghton of Sowerby, L.

Taylor of Mansfield, L.

Howie of Troon, L.

Thomas of Swynnerton, L.

Hughes, L.

Tordoff, L.

Hunt, L.

Underhill, L.

Hutchinson of Lullington, L.

Wallace of Coslany, L.

Irvine of Lairg, L.

Wedderburn of Charlton, L.

Jacques, L.

Wells-Pestell, L.

Jay, L.

Whaddon, L.

Jeger, B.

White, B.

Jenkins of Putney, L.

Wigoder, L.

John-Mackie, L.

Williams of Elvel, L.

Kearton, L.

Wilson of Rievaulx, L.

Kennet, L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

Kirkhill, L.

Winstanley, L.

Llewelyn-Davies of Hastoe, B.

Wyatt of Weeford, L.

Lloyd of Kilgerran, L.

Ypres, E.

Lockwood, B.

NOT-CONTENTS

Abinger, L.

Brookeborough, V.

Ackner, L.

Brougham and Vaux, L.

Airey of Abingdon, B.

Broxbourne, L.

Alexander of Tunis, E.

Bruce-Gardyne, L.

Allerton, L.

Butterworth, L.

Arran, E.

Buxton of Alsa, L.

Astor, V.

Caccia, L.

Beaverbrook, L.

Caithness, E.

Belhaven and Stenton, L.

Cameron of Lochbroom, L.

Beloff, L.

Campbell of Alloway, L.

Belstead, L.

Campbell of Croy, L.

Benson, L.

Carnegy of Lour, B.

Bessborough, E.

Carnock, L.

Blatch, B.

Cathcart, E.

Blyth, L.

Chelmer, L.

Borthwick, L.

Chelwood, L.

Boyd-Carpenter, L.

Colnbrook, L.

Brabazon of Tara, L.

Colville of Culross, V.

Bramall, L.

Constantine of Stanmore, L.

Broadbridge, L.

Cork and Orrery, E.

125

Cottesloe, L.

Mersey, V.

Cowley, E.

Milverton, L.

Cox, B.

Monk Bretton, L.

Craigavon, V.

Montgomery of Alamein, V

Craigmyle, L.

Moran, L.

Craigton, L.

Morris, L.

Cranbrook, E.

Mottistone, L.

Crickhowell, L.

Mountevans, L.

Croft, L.

Mountgarret, V.

Cullen of Ashbourne, L.

Munster, E.

Dacre of Glanlon, L.

Murton of Lindisfarne, L.

Davidson, V. [Teller.]

Nelson, E.

De La Warr, E.

Newall, L.

Denham, L. [Teller.]

Norrie, L.

Denning, L.

Nugent of Guildford, L.

Dilhorne, V.

Orkney, E.

Donegall, M.

Orr-Ewing, L.

Dundee, E.

Oxfuird, V.

Eccles, V.

Pender, L.

Eden of Winton, L.

Penrhyn, L.

Edmund-Davies, L.

Perth, E.

Elibank, L.

Peyton of Yeovil, L.

Ellenborough, L.

Portland, D.

Elliot of Harwood, B.

Prior, L.

Elliott of Morpeth, L.

Radnor, E.

Ely, Bp.

Rankeillour, L.

Erne, E.

Reay, L.

Erroll of Hale, L.

Reigate, L.

Faithfull, B.

Renwick, L.

Fanshawe of Richmond, L.

Rochdale, V.

Fortescue, E.

Rodney, L.

Fraser of Kilmorack, L.

Romney, E.

Fraser of Tullybelton, L.

St. Davids, V.

Gisborough, L.

St. John of Fawsley, L.

Glenarthur, L.

Salisbury, M.

Grantchester, L.

Saltoun of Abernethy, Ly.

Gray of Contin, L.

Sanderson of Bowden, L.

Gridley, L.

Selkirk, E.

Grimston of Westbury, L.

Sempill, Ly.

Grimthorpe, L.

Shannon, E.

Harmar-Nicholls, L.

Sharples, B.

Harvington, L.

Shaughnessy, L.

Havers, L.

Skelmersdale, L.

Hertford, M.

Slim, V.

Hesketh, L.

Somers, L.

Hives, L.

Stodart of Leaston, L.

Holderness, L.

Strange, B.

Hood, V.

Strathcarron, L.

Hooper, B.

Strathclyde, L.

Hunter of Newington, L.

Sudeley, L.

Hylton-Foster, B.

Suffield, L.

Ilchester, E.

Swinfen, L.

Johnston of Rockport, L.

Terrington, L.

Joseph, L.

Teviot, L.

Kaberry of Adel, L.

Teynham, L.

Kimball, L.

Thomas of Gwydir, L.

Kimberley, E.

Thorneycroft, L.

Kinloss, Ly.

Thurlow, L.

Kinnaird, L.

Torrington, V.

Lane-Fox, B.

Trafford, L.

Lauderdale, E.

Tranmire, L.

Lloyd of Hampstead, L.

Trefgarne, L.

Lloyd-George of Dwyfor, E.

Trumpington, B.

Long, V.

Ullswater, V.

Lucas of Chilworth, L.

Vaux of Harrowden, L.

McFadzean, L.

Vinson, L.

Mackay of Clashfern, L.

Waldegrave, E.

MacLehose of Beoch, L.

Ward of Witley, V.

Macleod of Borve, B.

Westbury, L.

Manton, L.

Whitelaw, V.

Mar, C.

Wilberforce, L.

Margadale, L.

Windlesham, L.

Marley, L.

Wise, L.

Marsh, L.

Wolfson, L.

Marshall of Leeds, L.

Wynford, L.

Masham of Ilton, B.

Young, B.

Merrivale, L.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.5 p.m.
Clause 3 [General restrictions on return]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 4, line 47, leave out ("facts in respect of which his return was ordered") and insert ("particulars furnished under section 4(2)(b) below").
The noble and learned Lord said: My Lords, this is one of the amendments to which I spoke when moving Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 4:
Page 4, line 48, leave out from ("ordered") to end of line 3 on page 5.
The noble Lord said: My Lords, I intend to move this amendment, though it is not one of a group. I wonder whether it is right to move it at this stage. I understand that it is right, so I shall move it. Your Lordships will have to forgive me, because this amendment is not grouped with the others and is separate. Therefore I shall move it.
The amendment refers to Clause 3, which covers general restrictions on return. Your Lordships will have realised that the Secretary of State has overwhelming powers in a case where Clause 6(4), which we have been debating applies. He has power to issue an authority to proceed under Clause 4(1) on receiving a request from the foreign state on the particulars and facts supplied by that foreign state and, as we know, on no criteria and on no principle.
One of the basic safeguards of our extradition law for the past 100 years has been what is called the speciality rule, which is that a person shall not be charged with another and different offence from that on which the foreign state has put forward its case for extradition. In this Bill, under Clause 3(4), we see the speciality rule spelt out, and a person shall not be returned to a foreign state unless provision is made by the law of that state for securing that he will not be dealt with in that state for any offence committed before his return, other than,

"(a) the offence in respect of which his return is ordered;

(b) an offence … which is disclosed by the facts"

which have been put forward.
That is perfectly sensible and is a safeguard against a state asking for the extradition of someone on an inoffensive offence, and then when they get him back charging him with a far more serious offence or an offence of a completely different nature. But paragraph (c) of subsection (4) reads:
"subject to subsection (6) below"—
it need not worry us; it merely means that it must be lawful—
"any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with".
So in those few words the whole of the speciality rule is undermined. The Secretary of State on his own whim and off his own bat as it were may agree, in the case of someone who has been extradited, gone to the magistrates' court, and been committed of an offence of say, theft, to that person when he gets back to the foreign country, possibly being charged with rape, robbery or whatever. The speciality rule goes out of

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the window. The purpose of this amendment is to leave out Clause 3(4)(c) which concerns the extra power given to the Secretary of State. That is an additional power. Having regard to the enormous powers which the Secretary of State already has, I would suggest that there is absolutely no reason for him to have that extra power. I beg to move.
Lord Irvine of Lairg: My Lords, your Lordships in considering the previous group of amendments have just voted to remove the prima facie safeguard but in a limited class of case only. We have the assurance that the prima facie rule will only be abolished by Order in Council and in the case of states which are members of the Council of Europe and which adhere to the European convention. Therefore it is important to appreciate that the prima facie safeguard will remain in full force and effect in the case of extraditions to very many countries. We have extradition arrangements both with countries which do not adhere to the European convention and with other countries which we would not regard necessarily as democratic countries.
It must be appreciated that this power which is given to the Secretary of State is given in all cases. Our concern is whether Clause 3(4)(c) can make a nonsense of the prima facie rule in such cases. The court in the first instance considers carefully whether there is a prima facie case on the offence which is the subject matter of the request. If there is such a case and there is extradition, and the person going abroad is acquitted on the charge on which he was sent to face trial abroad, the Secretary of State has a power under Clause 3(7) to consent to that person being tried abroad, where he has just been acquitted on the charge on which he was sent, for more serious offences although those are charges where the prima facie safeguard would have applied had the foreign government applied for extradition on those charges in the first place. The important question which we think arises can be illustrated if I read Clause 3(6).
"The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Part of this Act".
I invite your Lordships to focus on the words:
"or would not in fact be made".
The example that I am supposing is someone in respect of whom the requesting state has surmounted the prima facie requirement on one charge. The person goes out and is acquitted but the Secretary of State then consents to his facing other and, let us say, more serious charges abroad without returning a free man to this country. The Secretary of State cannot give his consent under paragraph (c) unless it appears to him that an order for the return of the person concerned,
"would not in fact be made"
in respect of the new charges.
The important question is: do the words
"or would not in fact be made"
mean that the Secretary of State has to put himself in the position of the Bow Street magistrate as if an extradition request were being heard by the Bow
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Street magistrate and ask the same questions based on evidence which must be put before him as the Magistrate would have to ask in deciding whether there is a prima facie case? If the answer to that question is "Yes", this is a function judicial in nature where the Secretary of State must be considering and evaluating evidence. That we would say, is naturally a judicial and not an executive function.
But if the answer is "No" and he does not have to consider evidence in that sense in cases where the prima facie safeguard remains and will continue to remain after the Bill becomes an Act of Parliament, we call attention to the fact that the prima facie safeguard can be bypassed by the Secretary of State sanctioning further charges abroad which are not the subject of the initial request and are not the subject of any judicial proceedings. So the question to which we desire an answer and to which the House with respect is entitled to a clear explanation is: what is intended by this provision? Is the Secretary of State going to consider evidence in deciding whether the new offences proposed to be charged would not in fact be the subject of an order under this Act? Is he going to consider the evidence and if so in what form and in what manner?
6.15 p.m.
The Lord Chancellor: My Lords, this provision is intended, as your Lordships have heard, to give the Secretary of State power to consent to a person who has been extradited being tried in the foreign country on another charge than that in respect of which his extradition has proceeded. A similar provision is a feature of the Fugitive Offenders Act as presently in force and it has been a feature of our arrangements with the Commonwealth for some 20 years. When these matters were under review, the possibility of making this change to our foreign extradition provisions was set out plainly in the 1985 Green Paper on extradition.
I think I am right in saying that every response which touched on this matter supported the policy we see reflected in Clause 3(4)(c). In other words it is a proper power for the Secretary of State to have. But it is thought right that that power should be restricted by the provisions of Clause 3(6) so as to make it plain that it is not a way round the provisions of the Extradition Act. That depends of course what those provisions actually are in relation to the particular foreign state in question. I venture the view that they are intended to prevent the Secretary of State consenting to a person who has been extradited being tried in the foreign country in respect of an offence which in his judgment would not succeed in procuring an order under the relevant provisions of the Extradition Act. Therefore, it is the Secretary of State who makes the judgment on the basis of the way the case appears to him. Subsection (6) states:
"The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made".
The words "could not" touch on full powers and the words "would not" touch on the particular circumstances as they appeared to the Secretary of State at the time his consent was asked for. I hope that answers the noble Lord, Lord Irvine.

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Concerning the main principle of the amendment, my answer is that it seemed a reasonable provision to include; it is in the Commonwealth arrangements and everyone who commented on it seemed to think that it was a good idea. Therefore, not surprisingly, we put it into the Bill. If the noble Lord, Lord Irvine, has further doubts on the matter, perhaps we may correspond between now and Third Reading. However, what I have said reflects my understanding of the effect of the provision.
Lord Hutchinson of Lullington: My Lords, with great respect to the noble and learned Lord, everyone does not agree that it is a good thing that the power should be in the Bill. Certainly two speakers in your Lordships' House do not agree. Under subsection (6) it is of course recognised that the power would not be used by the Secretary of State to get round the terms of the Bill. That was never thought to be its purpose. The mischief is that although this Secretary of State would not give his consent where it would be obviously unjust to do so, once again the subsection gives a power to whoever is the Secretary of State at the time. We object to the giving of that power.
Nevertheless, having regard to the long time which we have taken on previous amendments this afternoon, I should not wish to take the matter to a Division at this stage. Perhaps if there is further correspondence between the noble Lord, Lord Irvine, and the noble and learned Lord the Lord Chancellor we may find some developments at the next stage. I beg leave to withdraw the amendment.
The Lord Chancellor: My Lords, perhaps your Lordships will allow me to say that I shall copy to the noble Lord, Lord Hutchinson, any correspondence that we may have on that particular question.
Amendment, by leave, withdrawn.
Clause 4 [Extradition request and authority to proceed]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
Page 5, line 29, leave out ("facts upon which and the law under") and insert ("offence of").
The noble and learned Lord said: My Lords, this is an amendment to which I spoke when dealing with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 5, line 36, at end insert ("and copies of them shall be served on the person whose return is requested before he is brought before a court under section 6 below.
(2A) Rules under section 144 of the Magistrates' Courts Act 1980 may make provision as to the procedure for service under subsection (2) above in England and Wales.").
The noble and learned Lord said: My Lords, this is one of the amendments on which I relied in my defence as regards Amendment No. 2. It contains one of the expressed safeguards which we sought to add in order to make plain what we had in mind in relation to the general principle. I beg to move.
On Question, amendment agreed to.
Clause 6 [Proceedings for committal]:
[Amendments Nos. 7, 8 and 9 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 9, line 30, at end insert—
("(1A) The Secretary of State shall give the person to whom an order under subsection (1) above would relate notice in writing that he is contemplating making such an order.
(1B) The person to whom such an order would relate shall have a right to make representations, at any time before the expiration of the period of 15 days commencing with the date on which the notice is given, as to why he should not be returned to the foreign state, and unless he waives that right, no such order shall be made in relation to him before the end of that period.
(1C) A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B) above.
(1D) It shall be the duty of the Secretary of State to consider any representations made in the exercise of that right.
(1E) Any warrant under this section shall recite that the Secretary of State has considered any representations made in the exercise of that right before deciding to return the person to whom it relates to the foreign state.
(1F) A person shall not be returned in pursuance of any such warrant until the expiration of the period of 7 days commencing with the date on which the warrant is issued or such longer period as rules of court under section 84 of the Supreme Court Act 1981 may provide.
(1G) At any time within that period the person to whom the order would relate may apply for leave to seek judicial review of the Secretary of State's decision to issue the order.
(1H) Unless the person to whom the order relates waives the right conferred on him by subsection (1G) above he may not be returned to the foreign state before the end of that period.
(1J) If he applies for judicial review, he may not be returned until the end of the proceedings for judicial review.
(1K) Proceedings for judicial review shall be treated for the purposes of this section as continuing until any appeal in those proceedings is disposed of: and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.
(1L) An order under this section shall set out in ordinary language the rights conferred by the two preceding subsections.
(1M) Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order.").
The noble and learned Lord said: My Lords, as your Lordships will know, the amendment is the cornerstone of our attempt to meet the difficulties that were expressed at Committee stage. In my ardour to get to the argument on the main matter I omitted one or two preliminary matters which I had originally intended to mention.
The first matter is that all of your Lordships who had the pleasure of listening to my noble friend Lord Caithness dealing with the Bill up to this stage will have recognised what a tremendously powerful job he made of it. The only reason it was thought right for me to participate with him in certain matters which are subject to consideration on Report is that some of the questions are questions which depend to some degree on legal experience. My noble friend, with all his qualities, does not have that particular type of experience. Therefore, it was thought right that I might assist. As has been pointed out to me, he also comes from a good place and that is a great qualification. My mother came from the same place!
My other point is a reflection of something said by the noble Lord, Lord Hutchinson of Lullington, concerning my right honourable friend the Secretary of State for the Home Department. I believe that he was indicating that my right honourable friend had spent a good part of his life in the diplomatic service. I think I am right in saying that the noble Lord was perhaps suspicious that the decisions of my right honourable friend on such matters were more influenced by his affinity to the Foreign Office than his desire to promote the rule of law in this country.
Perhaps I may say that I know from my own knowledge that my right honourable friend the Secretary of State has personally considered all the matters that were raised at Committee stage on the Bill. In particular it is within my knowledge that he has carefully considered all the matters raised in connection with the main point which we have been discussing. He applied his own very considerable talents to deciding what should be done about those matters. With great respect to the noble Lord, Lord Hutchinson, it would not be right to say that he was influenced by anything other than the purest and highest consideration for the rule of law and justice in this country.
Lord Harris of Greenwich: My Lords, I am not seeking to reopen issues which were discussed on the previous amendment moved by the noble Lord, Lord Irvine, this afternoon. However, as we shall obviously be coming back on Third Reading to what appears as Amendment No. 10, and particularly to subsection (1M), I and many of my colleagues would be grateful if before the next stage of the Bill we could have a letter from the noble and learned Lord dealing with the three specific questions I asked. The first question concerns the Home Office and oral hearings when requested. Secondly, there is the question of whether the Secretary of State is prepared to set up a system whereby, in appropriate cases, he can appoint an adviser on a similar basis to that contained in the provisions of the Prevention of Terrorism Act. Finally, there is the question of compensation. I am not asking for an immediate reply but I should be grateful for a reply before Third Reading.
Lord Ackner: My Lords, I raise one matter for clarification. Should there not be spelt out, either in the amendment or elsewhere, a specific obligation on the Secretary of State to provide not only notice that he is contemplating making an order but the facts and the law relied on for the making of that order? There has been removed, by virtue of the previous amendments, the phrase:
"facts upon which and the law under"
and in its place we have only the word "offence". Unless there is a specific obligation spelt out, all that the defendant (if I may call him that) will get is a notice of the intention of the Secretary of State which will no doubt fill him with gloom but no wisdom. I suggest that there ought to be a specific provision, either continuing on from subsection (1A) in the amendment or elsewhere, that he is to be given particulars of the facts and the foreign law relied upon in support of the application.
Lord Boyd-Carpenter: My Lords, as the greater part of the amendment is to deal with points raised in Committee, in some of which I was involved, and which the noble Earl undertook to consider, I wish to express gratitude to him and to the Government. It shows that the time spent in Committee was far from wasted. It is also an indication of the sensitive and intelligent way in which my noble friend handled the Bill.
6.30 p.m.
Lord Mishcon: My Lords, I should like to underline any adjectives that are complimentary of the noble Earl. I do not quite follow the noble Lord, Lord Boyd-Carpenter, in admiring what has happened by way of amendment as a result of the discussion, but that is a side issue. We all admire the way in which the noble Earl has dealt with the Bill.
Perhaps I may add one question regarding the right of oral representation. Is it envisaged that there will be the right for legal representation also when the oral representations are made? One quakes to think of some poor individual being faced by the Secretary of State in person in order to make oral representations and finding that the lawyer he brought with him is asked to remain outside.
The Lord Chancellor: My Lords, perhaps I may attempt to deal with that when I deal with the questions raised by the noble Lord, Lord Harris of Greenwich.
So far as concerns the question of my noble and learned friend Lord Ackner, we had thought that point was covered by Clause 4 and Amendment No. 6. It may be that we can discuss the matter conveniently between now and Third Reading.
On Question, amendment agreed to.
Clause 9 [Order for return to requesting state]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 11:
Page 10, line 1, leave out ("may decide not to") and insert ("shall not").
The noble Lord said: In moving the amendment, I speak also to Amendment No. 12 as the amendments go together.
Amendment No. 11 deals with the question of a person being sent back from this country to face the charge of committing an offence where the penalty may be or is a sentence of death. Under Clause 9, at page 9, certain matters are set out that the Secretary of State must take into account in deciding whether to make the order. Clause 9(2) states:
"Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state under this Part of this Act".
Paragraph (a) states that,
"the Secretary of State shall not make an order in the case of any person if it appears".
There follow sub-paragraphs (i), (ii) and (iii) as to the trivial nature of the offence, the passage of time and the question whether the accusation is not made

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in good faith in the interests of justice. Paragraph (b) states:
"the Secretary of State may decide not to make an order for the return of a person accused or convicted of an extradition crime constituted by conduct not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the state by which the request for his return is made".
The amendment seeks to alter the wording of paragraph (b) to read,
"the Secretary of State shall not make an order"
unless he receives a satisfactory undertaking from the state that the death penalty would not be carried out.
The amendment was moved in Committee and had some support, notably from the noble and learned Lord, Lord Roskill. In moving the amendment, I am much encouraged that the noble Lord, Lord Allen of Abbeydale, has added his name to the list of those who support it.
The Minister's attitude in Committee was as follows. Whereas he had the greatest sympathy with the intention of the amendment, he could not accept it because of the federal nature of the United States legal system. In fact, this was the kind of undertaking that the Government would seek from the federal authority in America, but that authority would be unable constitutionally to give the assurance that Amendment No. 11 seeks to include in the Bill. All the Government could do was to ask the federal government in America to undertake to convey the wishes of the Government of the United Kingdom to the relevant judge at the trial, which in the normal way was what happened. As we have abolished capital punishment, I suggest that it would strengthen the hand of the Government if there was a statutory obligation to seek an undertaking.
Secondly, Article 11 of the convention specifically says that extradition may be refused by the requested state unless the requesting state,
"gives such assurance as the requested party considers sufficient that the death penalty will not be carried out".
Why should we not include this in the Bill on the basis that this country would ask to be given such assurance as we consider sufficient that the death penalty will not be carried out?
Thirdly, a number of countries have entered reservations to the convention to this specific effect. I need quote only that of Austria, which states:
"Austria will refuse extradition requested in order to carry out the death penalty. Extradition will only be granted if the requesting state accept the condition that the death penalty will not be pronounced".
Austria and certain other countries have done that. I ask forensically whether those countries are havens for American murderers.
When the United States Government apply for the extradition of a citizen from one of the states in America, as I understand it, the federal government do so on behalf of the attorney-general of the state concerned. Under the attorney-general comes the district attorney. It is he who will or will not demand the death penalty at the trial of the person in question. I ask the Government why the federal government should not ask the attorney-general of the state for whom he is acting for an undertaking that the death penalty will not be invoked.
Finally, murder is one of the few offences for which we have extraterritorial jurisdiction. Therefore, we should be in the same position in this case as those countries who, in fact, have entered a reservation. In those circumstances, I beg to move.
Lord Allen of Abbeydale: My Lords, perhaps I may add one or two words. I had intended to add my name to Amendment No. 11 as well as No. 12 to make sense, but no doubt if it was agreed in principle the parliamentary draftsman would not accept any of the drafting, so perhaps it does not matter all that much.
I am not unfamiliar with the United States' judicial system and I well recognise that it presents problems, but I still cannot see why the federal Government should not tell the state concerned that it will not have the individual sent back to it unless it can give an undertaking that he would not be executed. If that undertaking is given by or on behalf of the US Attorney-General, or by or on behalf of the governor, and there is then a change of governor—a point made at the Committee stage—I find it difficult to believe that even in the United States such an undertaking would not be honoured by his successor or, at the very least, that it would not be an undertaking good enough to meet the words quoted by the noble Lord, Lord Hutchinson, I hope, therefore, that whatever the wording and however it is expressed in the statute, this point can be met.
Lord Elwyn-Jones: My Lords, I support the two amendments which have been moved. I hope and expect that the United States' authorities will find a means of ensuring that what we have in mind will be carried out. As I shall visit the United States to celebrate the bicentennial of the American constitution in two days' time, I shall mention that we shall expect them to do their stuff on this important matter.
Lord Paget of Northampton: My Lords, I believe that on the whole this country has generally recognised that to take somebody out in cold blood and kill him is indecent. To send him away for somebody else to kill is even more indecent. I believe that if we cannot explain that simple proposition to the Americans, our alliance would be imprudent.
The Lord Chancellor: My Lords, I do not believe that it is of value for me to go over the ground that was covered in Committee on this point and the matter does not really arise under the European convention. It is in the United States that the problem has arisen and it arises from the federal nature of the United States. As I understand the position, the federation, the United States, is the requesting state for extradition and is not able, according to our information, to give an undertaking that the state concerned will, in fact, not carry out the death penalty on someone extradited and facing a capital charge.
What happens in practice is that in deciding that but for this difficulty, extradition would be proper, the Secretary of State attempts to extract such an undertaking. As has been said, the most he has been

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able to achieve is a statement that the views of the requested state—namely, ourselves—will be put before the judicial authorities of the state concerned in the United States which is dealing with this specific offence.
In practice, so far that has been sufficient to prevent the dreaded result, even on conviction. But it is recognised that it is not so guaranteed that an arrangement of this kind would meet the statute, if amended in the way proposed by the noble Lord, Lord Hutchinson of Lullington. Therefore, with the present United States arrangements, if this amendment were to be approved, I think it would mean that the Secretary of State could not lawfully agree to send anyone facing a capital charge back if the offence arose in a state where, at that time, capital punishment was being exacted. As your Lordships know, the state can change these arrangements.
As the noble and learned Lord, Lord Elwyn-Jones, is going to America soon, and knowing his powerful Welsh eloquence, he may well be able to produce a change in the arrangements in the United States which will mean that we can reasonably accept this amendment. It is imposing rather a heavy timetable on him, but if the result were to come through in time for Third Reading, obviously the matter could be reconsidered.
6.45 p.m.
Lord Harris of Greenwich: My Lords, I believe it would be mildly surprising were the noble and learned Lord, Lord Elwyn-Jones, to be as speedily successful as that. I believe that most of us recognise the problem, which I know has been discussed before, and I do not doubt that the Home Office has, as on a number of previous occasions, tried to do something about this and come up against this substantial obstacle of the division of powers between federal states and the United States government.
The only matter which does trouble me, as I am sure it troubles the noble and learned Lord, the present Home Secretary, and will no doubt trouble future Home Secretaries, is what happens in the future if a district judge in one state decides, notwithstanding the view of the State Department, to execute the person who has been extradited. I consider that that would cause very substantial problems, to put it mildly, with regard to Parliament. It would have a rather more substantial effect on the person who had been extradited in the belief that he would not be subject to capital punishment.
I recognise, of course, that this matter has been looked at on a number of occasions but I hope that the noble and learned Lord will agree to take into account some of the arguments put forward; notably that of the noble Lord, Lord Allen of Abbeydale, who has substantial experience as former permanent Under-Secretary at the Home Office. Perhaps we can then see whether at some later stage during the progress of this Bill through Parliament we can arrive at a form of words which will not create the sort of mischief described by the noble and learned Lord himself but nevertheless will guarantee that we do not
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have this appalling consequence which arises if someone is subjected to capital punishment. I believe that that is a modest request and I hope that the noble and learned Lord will respond favourably.
The Lord Chancellor: My Lords, no one knows more about these matters than the noble Lord, Lord Harris of Greenwich, learned as he is with his experience at the Home Office. His remarks and those of other noble Lords who have spoken will be taken into consideration by my right honourable friend. This has been before my right honourable friend on a number of occasions, as the noble Lord, Lord Harris of Greenwich, said. Certainly, until now, we have not been able to find an answer but we are not giving up. If the assurance that we will continue to look for a solution is acceptable, no doubt the noble Lord will feel able to act accordingly.
Lord Hutchinson of Lullington: My Lords, I am obliged to the noble and learned Lord. Perhaps I may add one other matter to help him in his resolve not to give up and as an increased incentive to incorporate such an undertaking into the Bill. He will probably know that two cases certainly have been taken to the Court of Human Rights. One of them failed on a technicality and the other seemed to be progressing well when the applicant decided he would rather return to be executed, and the whole matter was brought to an end. There is now, in fact, a third case going to the court and it might avoid yet another situation in which something like this has had to be put into a Bill because of the decision of the Court of Human Rights. That might be an added incentive. The noble and learned Lord might send his Welsh envoy with a packet in his pocket to give him extra power when he gets there. In those circumstances, I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Clause 16 [Restrictions upon proceedings fir other offences]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 13:
Page 12, line 30, leave out ("on which his return is grounded") and insert ("in respect of which he was returned")
The noble and learned Lord said: This amendment follows Amendment No. 1. The same principle applies and I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
Page 12, line 31, leave out ("facts") and insert ("particulars furnished to the foreign state").
The noble and learned Lord said: My Lords, this again is an application of the principle that I sought to explain in relation to Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 21 [First-hand hearsay]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 15:
Page 15, line 4, after ("below") insert—
("(aa) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1986 (evidence given orally at orginal trial to be given orally at retrial);").
The noble Earl said: My Lords, In moving this amendment I wish to speak at the same time to Amendments Nos. 20 and 136. These amendments are consequential on the provision to which we agreed in Committee, that the Court of Appeal should have power to order a retrial. I beg to move.
On Question, amendment agreed to.
Report stage interrupted.

Royal Assent
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Consolidated Fund (No. 2) Act,

Dyfed Act.

Criminal Justice Bill [H.L.]
6.55 p.m.
Consideration of amendments on Report resumed on Clause 21.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 16:
Page 15, line 9, at end insert ("if—

(i) the requirements of one of the paragraphs of subsection 1(A) below are satisfied; or

(ii) the requirements of subsection (1B) below are satisfied.

(1A) The requirements mentioned in subsection (1)(i) above are—

(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(b) that—

(i) the person who made the statement is outside the United Kingdom; and

(ii) it is not reasonably practicable to secure his attendance;

(c) that the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement; or

(d) that, all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

(1B) The requirements mentioned in subsection (1)(ii) above are—

(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and

(b) that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings in which the statement is sought to be admitted or on behalf of such an accused person.").

The noble Lord said: My Lords, we have reached Part II of the Bill, and I shall speak also to Amendments Nos. 19 and 21. An amendment moved in Committee, to which I and the noble Lord, Lord Irvine, put our names, sought to remove Clause 21 from the Bill. At that stage, we urged that the clause was far too broadly drawn in relation to hearsay
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evidence. We were arguing that to mitigate the rule against hearsay was acceptable and sensible and that to permit documentary hearsay in fraud trials was clearly to be desired, but that to destroy the hearsay rule altogether was to damage irretrievably the fairness of the criminal trial and to undermine the principle or orality and the essential right of all parties in a criminal trial to test evidence by cross-examination.
The Minister defended the clause. But, at the end of the debate, in that co-operative spirit which we so much appreciate when, on rare occasions, we see it, he said that he would be willing to work towards a half-way house. The noble and learned Lord, Lord Roskill, also expressed himself willing to give his blessing to any half-way house solution that left his precious fraud documents intact.
The Minister has been as good as his word. I understand that he is willing to accept these amendments in the form in which they appear on the Marshalled List. They incorporate into Clause 21 the conditions and safeguards already to be found in Section 68(2) of the Police and Criminal Evidence Act. Those appear in Amendment No 16 at subsections (1A) and (1B). Your Lordships will see that the requirement necessary before hearsay evidence will be allowed in are,

(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(b) that—

(i) the person who made the statement is outside the United Kingdom; and

(ii) it is not reasonably practicable to secure his attendance;

(c) that the person who made the statement cannot reasonably be expected … to have any recollection of the matters, … or

(d) that, all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

Further, subsection (1B) requires,
"that the statement was made to a police officer … and that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings".
You Lordships will see that instead of the matter being at large, as it was in the original version of the Bill, this provision gives us the safeguards that we sought in Committee. We appreciate the efforts that the Minister has made to reach a sensible consensus on Clause 21. Amendments Nos. 19 and 21 affect Clause 22. That clause deals with business documents. Clause 24 deals with statements in documents that appear to have been prepared for purposes of a criminal trial; that is, documents such as depositions or notes in police officers' notebooks and the like, but not those appearing in Part III of the Bill—letters of request and experts' reports.
We were troubled in Committee that the judge's inclusionary discretion in relation to such documents was far too wide. Amendment No. 21 incorporates into this stage the safeguards in the Police and Criminal Evidence Act to which I have just referred. Once again, I understand that the Minister finds these amendments satisfactory. In all the circumstances, I have great pleasure in moving the amendment. I owe a debt of gratitude to the Minister for having co-operated as he has. I beg to move.
Lord Mishcon: My Lords, from these Benches we would also like to refer to the procedure which was adopted, so helpfully, by the noble Earl following upon our proceedings in Committee. He was good enough to write to all those who participated in the debate and was kind enough to suggest the very wording of this amendment. We are deeply grateful to him for having done so. That allowed us to put forward an amendment which has met with the agreement of the House.
The only observation I would make—obviously, we are all in favour of the amendment now—is that he might care between this stage and Third Reading to look at the wording of subsection (1B)(b) of Amendment No. 16. If your Lordships would kindly refer to that wording, you may find it is as abstruse as I, as a lawyer, have. I shall read it to the House:
"that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings in which the statement is sought to be admitted or on behalf of such an accused person."
I think that it will take a great deal of interpretation before one gets at the real meaning of that subsection although one knows its intention. Without wishing to waste any more time in regard to an amendment to which we all agree, I merely suggest that between now and Third Reading the Minister may wish to look at the wording to see if it can be simplified.
Lord Irvine of Lairg: My Lords, I spoke in Committee to the subject matter of Amendments Nos. 16 and 19 in support of the noble Lord, Lord Hutchinson. We are glad that the Minister has thought again on this subject. We would have preferred not to have Clause 21 in the Bill at all because we felt that other clauses broadened the rules of admissibility as much as was necessary. The adoption of these restrictions on the adducing of hearsay evidence makes Clause 21 a good deal better than it was.
In Committee I said that trials on paper must on the whole represent second-rate justice. Some of your Lordships were dismissive of that and suggested that the whole principle of orality had been demolished by irrefutable logic. We are glad that that somewhat advanced position has not found favour with the Government and that they have been persuaded to follow a middle way.
For ourselves we believe that after the Police and Criminal Evidence Act 1984 and after this Bill has passed into law, it will be right to leave undisturbed the question of hearsay in criminal cases for some considerable time in order to see how these far-reaching changes operate in practice. The general principle must be that hearsay evidence should only be admitted in criminal cases where really necessary.
As regards Amendment No. 19, we are equally glad to know that the Government have accepted that essentially the same restrictions should apply to statements prepared for criminal proceedings and investigations.
I add my own voice to that of my noble friend Lord Mishcon with reference to the expression of Clause 21(1B)(b) and the words:
"because he is kept out of the way by means of the procurement of a person accused in the proceedings".
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It is scarcely the most elegant form of language. Perhaps that mode of expression should be considered in the name of elegantia juris.
The Earl of Caithness: My Lords, when we debated this group of clauses in Committee there was a wide measure of agreement that the law governing the admissibility in evidence of documents which we described in shorthand as "business documents" was too strict. That had been the conclusion of the fraud trial committee under the chairmanship of the noble and learned Lord, Lord Roskill. Both he and the noble Lord, Lord Benson, made powerful speeches in that respect at the Committee stage. There, was therefore no disagreement about the need for Clause 22 as a means of allowing the courts to receive all the relevant documentation in cases such as the fraud cases with which the noble and learned Lord's Committee had been concerned.
There was however a view expressed by the noble Lord, Lord Hutchinson, and others that Clause 21 went too far in allowing the admissibility on identical criteria of other kinds of documents. Again in shorthand we described them as historic documents where their content was within the direct knowledge of their maker.
It was also argued that although it created a strong presumption against the admission of documents prepared for the purposes of criminal proceedings and investigations, Clause 24 was too tightly drawn.
I undertook to consider both of those points. As the noble Lord, Lord Hutchinson of Lullington, has said, there has since been some discussion between him and the Government and others of your Lordships. The result is that I am ready to accept the amendments which he has moved this evening with his customary eloquence.
Their effect would be considerably to tighten Clause 21 and by an indirect route Clause 24. To be admissible under Clause 21 an historic document would have to satisfy one of the conditions to which the noble Lord referred. For a court to have even the residual opportunity provided by Clause 24 to allow the admission of a witness statement in the interests of justice it would need to satisfy one of the same conditions.
There would therefore be three classes of documents; business documents, which would be readily admissible subject only to the discretion in Clause 23 to exclude them in the interests of justice; historic documents, which would be admissible only if they fulfil one of the new conditions; and witness statements, which would have to jump the same hurdle. Even then they would be admissible only when the court decided that they should be admitted exceptionally in the interests of justice.
I believe it would have been wrong to exclude altogether the murdered's wife's diary to which reference was made in our debates in Committee, or the statement made to the police by the witness who subsequently dies or is intimidated.
Amended as proposed by the noble Lord, the provisions will I think strike a sensible balance, on the one hand ensuring the admissibility of reliable documents in evidence, and on the other hand preserving the oral tradition of our system of trial.

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That brings me to the point raised by the noble Lord, Lord Mishcon, and the noble Lord, Lord Irvine of Lairg. It is said that some modern parliamentary draftsmen are a little obscure. This is not the work of modern parliamentary draftsmen. As the noble Lords opposite will know better than the wording is drawn from the Criminal Justice Act 1925 and it has been on the statute book for some 62 years. Nevertheless, let me look at that particular point again.
Lord Mishcon: My Lords, with the leave of the House, the fact that something was drawn in a somewhat mysterious, ambiguous and devious way in 1925 ought to give us, a far better Parliament than the one which operated at that time, an opportunity of correcting the language.
On Question, amendment agreed to.
[Amendments Nos. 17 and 18 not moved.]
Clause 22 [Business etc. documents]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 19:
Page 15, line 14, leave out ("subsection (3)") and insert ("subsections (3) and (4)").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 20:
Page 15, line 14, after ("below") insert—
("(aa) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968;").
On Question, amendment agreed to.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 21:
Page 15, line 34, at end insert—
("(4) a statement prepared otherwise than under section 27, 28 or 29 below for the purposes—

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation,

shall not be admissible by virtue of subsection (1) above unless—

(i) the requirements of one of the paragraphs of subsection (1A) of section 21 above are satisfied; or

(ii) the requirements of subsection (1B) of that section are satisfied.")

On Question, amendment agreed to.
Clause 23 [Principles to be followed by court]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 22:
Page 16, line 15, at end insert—
("( ) to the reasons why it is proposed that the person making the statement shall not give oral evidence;")
The noble Lord said: My Lords, I can move this amendment quite shortly. In Clause 23 we are dealing with matters to which the court must have regard in exercising its exclusionary discretion to allow evidence under Clauses 21 and 22.
Your Lordships will see that under Clause 23(2) the matters set out under (a) (b)(c) and (d) are those to which the court must have regard in exercising its discretion. They cover the nature and the source of
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the document with a view of the likelihood of it being authentic. Subsection (2)(b) says:
"to the extent to which the statement appears to supply evidence which would otherwise not be readily available;"
(a) to the relevance of the evidence…
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence".
and whether that would be unfair to the accused.
The amendment seeks to add to paragraphs (a) (b) (c) and (d) what is really the most important consideration of all in our submission, and that is the reason why it is proposed that the person making the statement shall not in fact give oral evidence. That ground surely should be included if these grounds are to be satisfied.
In Committee the Minister took the view that the matter was really covered by Clause 23(1) which begins:
"If, having regard to all the circumstances".
It would be covered by those words and also by the words of Clause 23(2) (b):
"the extent to which the statement supplies evidence which would otherwise not be readily available."
The noble and learned Lord, Lord Roskill, supported this amendment in Committee and in his robust way used these words:
"If I were [sitting in a trial] … the first thing I should ask myself is: 'Why won't this chap come?".—[Official Report, 20:10/87; col. 98.]
Those few words express much better than I can the point of the amendment. I am inclined to amend the noble and learned Lord's words and ask why will the Minister not agree? In those circumstances I beg to move.
The Earl of Caithness: My Lords, I have once again listened carefully to what the noble Lord has to say on this point, but I regret that I am still not convinced that the substance of his point is not already provided for. We have already discussed amendments to the earlier clauses which are intended to ensure that documents admissible under Clauses 21 and 24 will not replace oral evidence where that evidence is available. Secondly, I stand by what I said in Committee which is that under Clause 23(1), in deciding whether to exercise its discretion to exclude a document which is admissible under Clauses 21 or 22, the court is to have regard to all the circumstances. This can include factors such as those that the noble Lord referred to in moving his amendment.
Thirdly—and this was also mentioned in Committee—subsection (2)(b) refers to the extent to which the statement in the document provides evidence which otherwise would not be readily available. This expresses the same thought more generally. As I explained at the earlier stage, I believe this wording is more helpful than the noble Lord's amendment. If the court's attention were drawn specifically to, as it were, the excuses for a particular witness not attending court, there is, it seems to me, a risk that the argument will focus on that aspect even where, as is the case with many routine business documents, it is scarcely reasonable to expect the person who made them to come to court.
I believe that the three safeguards that are now in the Bill are quite sufficient and I remain persuaded

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not to accept the arguments and therefore to resist the amendment moved by the noble Lord.
Lord Hutchinson of Lullington: My Lords, I am certainly disappointed because I would have suggested that when one is laying down a duty in a statute it is better to express explicitly what that duty is rather than to express it by implication. However, I do not wish to batter my head against a brick wall. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Schedule 2 [Documentary evidence—supplementary]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 23:
Page 109, line 22, leave out paragraph 4.
The noble Earl said: My Lords, in moving this amendment I shall also speak to Amendment No. 24. These amendments take forward an undertaking I gave during the Committee stage, to reflect on the questions of legal representation and opportunity for cross-examination by the accused, when evidence is taken from a witness overseas under a letter of request. As I explained then, the Bill provides that in assessing the weight to be given to evidence taken abroad, the court should have regard to whether there was an opportunity for questions to be put to the person giving evidence.
This can now he found in Schedule 2. We had, however, decided that it was a sufficiently important consideration to bear directly on the admissibility of evidence taken following a letter of request under Clause 27, and for it therefore to be set out in the body of the clause. In our debates in Committee, the noble Lord, Lord Hutchinson, argued that specific provision should be made for the defendant to be legally represented and to have an opportunity for cross-examination. As I said then, no provision would be necessary in our law to enable this to happen. If the purpose was to require it to happen, it would be purporting, in our law, to lay down the procedures to be followed by foreign countries, procedures which in some cases they might, for reasons to be found in their own law, be simply unable to meet.
However, I agree with the noble Lord that there will be some cases, where an accused person had been identified, in which there will be a strong argument for his being represented and for questions to be put to the witnesses on his behalf. The amendments are intended to respond to that concern. The effect will be, as I have said, to transfer the existing provision from Schedule 2 to Clause 27. More important, however, it now includes a specific reference to whether the local law allowed the parties to the proceedings to be legally represented. This means that in deciding under Clause 23 whether to admit or exclude the product of a letter of request, the court's attention would be specifically directed to these two factors—the opportunity for legal representation and cross-examination. That seems to us to be the right approach to what I recognise is a genuine concern. I commend it to your Lordships. I beg to move.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington My Lords, I have great pleasure in supporting this amendment and expressing my gratitude to the Minister once again for having come a long way along the road to deal with what appeared to be a requirement which ought to be in the Bill. I am very happy to support it.
Lord Mishcon: My Lords, we on these Benches also support the amendment.
The Earl of Caithness: My Lords, I am grateful. The wound is healed between the noble Lord, Lord Hutchinson and myself. We started off well; we went astray a little on the last amendment, but this amendment heals the wound and I am grateful for the comments he made and also for those of the noble Lord, Lord Mishcon.
On Question, amendment agreed to.
Clause 27 [Issue of letters of request]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 24:
Page 18, line 33, at end insert—
("(6) In exercising the discretion conferred by section 23 above in relation to a statement contained in evidence taken in pursuance of a letter of request, the court shall have regard—

(a) to whether it was possible to challenge the statement by questioning the person who made it; and

(b) to whether the local law allowed the parties to the criminal proceedings to be legally represented when the evidence was being taken.").

On Question, amendment agreed to.
Lord Harris of Greenwich: My Lords, before the noble Earl moves the next amendment when is it the intention to rise for dinner? We are about to start on a significant number of very important amendments dealing with videos and related matters. I do not know the Government's intention.
The Earl of Caithness: My Lords, the next amendment should not lead to any debate, but I agree that Amendment No. 26 onwards, will do so and I would suggest that those amendments should be deferred until after dinner.
Clause 30 [Evidence through video links]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 25:
Page 20, line 12, leave out ("video").
The noble Earl said: My Lords, this amendment is consequential to amendments that I accepted in Committee. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness: My Lords, perhaps this is an opportune moment to adjourn consideration on Report. I suggest that we should not come back to this matter until 25 minutes past eight.
I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Building Societies (Limited Credit Facilities) Order 1987
7.20 p.m.
Lord Beaverbrook Lord Beaverbrook rose to move, That the draft order laid before the House on 21st October be approved. [4th Report from the Joint Committee.]
The noble Lord said: My Lords, in moving that the draft order be approved I should like, with your Lordships' permission, to speak also to the Building Societies (Provision of Services) (No. 3) Order 1987.
Nearly a year has now passed since the Building Societies Act 1986 came into force. The intervening period has seen many changes in the financial background against which the Act was conceived, not least in the evolution of the functions undertaken by building societies. The Act enabled societies to provide a number of services for the first time, and I believe that they have risen to the challenge. The range of new activities permitted from January this year under the new Act was quite extensive and included lending on non-residential property; unsecured lending; ownership of land; wider borrowing from wholesale markets; money transmission services; provision of personal pensions and PEPs; and the ownership of estate agents.
There are two orders before the House. Both are intended to remove certain restrictions currently placed on building societies by the Building Societies Act as it now stands, and which the Government believe to be unnecessary. Societies have had for some time the power to issue credit cards, acting as agents for banks, and a number of building societies already issue such cards to their customers. Under this arrangement it is the banks, not the building societies, which provide the credit to card users. The building societies are not currently directly involved in the transaction.
Section 16 of the Building Societies Act 1986 gave building societies the right to extend unsecured personal loans. It was assumed that they would be able to act as principals rather than just agents in issuing credit cards. But they have been prevented from doing so by a technical problem in the way the Act is drafted. The Act sets a limit of £5,000 on the total amount of unsecured lending to any individual. This does not cover the situation where a borrower deliberately or inadvertently exceeds his credit limit. Should that happen, a society would automatically be acting ultra vires, even if it immediately took steps to recover the situation. Societies cannot take that risk. So they cannot issue credit cards as principals.
The same problem applies to certain other transactions, particularly those relating to electronic funds transfer. The Building Societies (Limited Credit Facilities) Order removes this problem. The £5,000 limit is retained but societies will not be acting ultra vires if they take steps within a reasonable time to remedy the situation by recovering the debt. I think this is a sensible step and one which societies will welcome. The Building Societies Commission will expect credit card lending by societies to be subject to rigorous credit assessment procedures and will take a particular interest in societies' systems in this area of lending as part of their normal prudential supervision.
The second of these two orders will allow building societies to provide their customers with advice on a wide range of investments, such as gilts, equities and debentures. Societies are currently restricted to providing investment advice on insurance and their own products. This includes advice on unit trust linked life assurance and on personal equity plans, but not on unit trusts generally. The order will also correct an unexpected effect of the Act which requires building societies—alone among financial intermediaries—to channel customers' unit trust orders through a stockbroker. The order provides that customers' orders may be passed direct to the fund manager.
These orders are intended to have the effect of allowing building societies to provide their customers with a better service, by developing societies' range of personal financial services. It should increase consumer choice and hence be a useful competitive stimulus to banks and other financial institutions now operating in these fields.
There has been some debate about the extent and nature of the financial services that building societies should be able to provide and, as your Lordships will be aware, the Economic Secretary last month announced a review of Schedule 8 to the Building Societies Act, which lists these services. This will do two things. First, it will examine how far the structure of Schedule 8 can be revised so that it describes in broad terms what societies can do and specifies within that those activities which are expressly forbidden. This would change the presumption at the margin that societies can do things rather than that they cannot do them, and hopefully remove as far as possible many of the irritations societies have experienced in operating within their new powers.
The review will also consider the various requests societies have made for extensions of their powers into new areas. Any change to Schedule 8 will require an affirmative order to be debated in this House. It is hoped that this order can be brought forward early in the new year. In the meantime, I commend these orders to your Lordships.
Moved, That the draft order laid before the House on 21st October be approved. [4th Report from the Joint Committee.]—(Lord Beaverbrook.)
Lord Bruce of Donington: My Lords, I hope that the noble Lord's customary calm will not in any way suffer by my assurance that we support him in these orders. In regard to the first one to which he referred, I have very little to add to the comments that were made in another place by Mr. Chris Smith, who spoke on behalf of the Opposition. In general, we support this new action which to some extent extends the powers, the competence and indeed the opportunities available to building societies. They have suffered one or two reverses over the past two or three months, or perhaps even longer, when large sums were withdrawn in order that members could invest in privatisation equities.
Happily, in a number of cases, after having sold their shares in the privatised industries they returned their funds to the building societies. I am quite sure that this militates to the stability of the savings movement of this country and acts as a salutary

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check against undue and speculative adventures into the privatised equity market. We give our blessing to the first order.
Although we support the second order in general, there remain one or two matters to be cleared up, which I am quite sure the noble Lord will be able to do. Paragraph 3 of the order states:
"The list of services in Part I of Schedule 8 to the Act shall be varied by the addition of the following
"after the service numbered 6—
'6A. Giving investment advice.
6B. Arranging for the provision of units in a unit trust scheme."'.
I should be grateful if the noble Lord could confirm that polarisation still applies to the building societies and that the building societies can choose either 6A or 6B, or, if they elect to choose both, that 6B shall not apply to those building societies that are themselves owners of or linked with specific unit trust schemes. The noble Lord will agree that within the general provisions of the Financial Services Act it would be against the principle of polarisation that building societies should be able to recommend their own unit trusts. I should be glad if the noble Lord could give me some assurance on that point.
The next matter relates to paragraph 4 of the order, which states:
"Part III of Schedule 8 to the Act shall be varied by the insertion of the following paragraph after paragraph 5—
'Giving investment advice.
5A. The power to give investment advice is restricted to giving advice to individuals."'.
The term "individuals" within the Building Societies Act 1986 shines out like an occasional beacon. Throughout the Act, apart from Section 76(9) and Section 83, the first two subsections, the Act refers to "persons". Your Lordships will be aware that under the interpretation of legislation Act 1979 "persons" has a vastly different connotation from "individuals". "Persons" encompasses even bodies corporate. So far as I can see from the interpretation clause of the Building Societies Act 1986, "individuals" is nowhere defined.
This is important for this reason. If your Lordships will recall, "individuals" are referred to in Schedule 8 at paragraph 2 of Part III, which refers to foreign exchange. It says:
"The provision of foreign exchange services is restricted to their provision to individuals".
But the term "individuals" in connection with foreign exchange may surely be somewhat different from investment advice. Investment is rather different from foreign exchange dealings.
What happens, for example, where a husband and wife have a joint portfolio? Is the joint portfolio of husband and wife to be denied advice? What happens to the trustee or trustees of funds? Does the term "individuals" cover that?
These may appear to be somewhat carping criticisms, but the function of your Lordships' House in these matters is to be particular and to elicit information on particular points. They are not raised in any mood of censoriousness so far as concerns the noble Lord but merely to elicit information for clarification. On the assumption that the noble Lord
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is able to provide the information in response to the questions I ventured to lay before your Lordships, we shall of course on this side of the House support both these statutory instruments.
7.30 p.m.
Lord Beaverbrook: My Lords, I am most grateful to the noble Lord, Lord Bruce of Donington. He brought up two points. I shall take up his point on polarisation first of all. At present, building societies are empowered under the Building Societies Act to give advice on insurance products but cannot themselves underwrite insurance or offer insurance-linked products.
They can also give advice on any of their own products, including those such as unit-linked personal pensions which are investments under the Financial Services Act. Building societies are covered by the terms of the Financial Services Act to the extent that they are engaged in investment business. Both unit trusts and many forms of insurance are investment businesses. Giving advice on those products therefore falls within the ambit of the SIB rules.
The order allows societies to give advice on all investment products; that is, investment as defined in the Financial Services Act. They will therefore be able to advise inter alia on all unit trust products as well as on insurance products. This will unequivocally allow them to become independent intermediaries under the SIB rules.
Most large building societies are expected to become independent intermediaries. To date only one, the Abbey National, has opted to be a tied agent, in this case to the Friends' Provident. Societies acting as independent intermediaries which wish to offer their own investment products—that is, unit-linked personal pensions—will have to offer their products through subsidiaries.
Branch staff giving advice on investments generally will not be permitted to advise on societies' own unit trust linked personal pension products. Rather, they will have to refer customers interested in this product to a subsidiary. Therefore, polarisation does apply but the societies can offer both those matters listed under 6A and 6B. Those in 6B merely mean that the societies can pass unit trust orders directly to unit trust managers when acting as an agent. But if it is a question of advice on unit trust investments, polarisation does apply.
I now take the second point raised by the noble Lord on "individuals". "Individuals" means individual members of the public, not companies, both for foreign exchange and investment advice. Husband and wife would mean the same as an individual member of the public. There are a number of restrictions placed on the societies' provision of these services. For example, the provision of unit linked personal pensions, personal equity plans, and estate agency services must be done through a subsidiary, as I have already said.
The power to arrange foreign exchange in investment services can only be provided to individuals; that is, not to the corporate sector. The power to manage land as an agent is restricted to residential land. There are various reasons for these

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restrictions; for example, to prevent societies from engaging in property speculation and to avoid conflicts of interests for societies' staff. I hope that I have answered the two points raised by the noble Lord, but if I have not no doubt he will now let me know.
Lord Bruce of Donington: My Lords, I am most grateful to the noble Lord. There is just one point he has not dealt with; that is, the trustees. Are they incorporated as an individual?
Lord Beaverbrook: My Lords, if the noble Lord finds it acceptable perhaps I may look more carefully into that matter and write to him as soon as possible as I do not have an answer with me on that point. Perhaps he will find it possible to take that course this evening.
Lord Bruce of Donington: My Lords, with the leave of the House, I am obliged to the noble Lord. I should be obliged if he would place a copy of the letter in the Library at the same time.
Lord Beaverbrook: My Lords, of course I shall do that. I commend this order to your Lordships.
On Question, Motion agreed to.

Building Societies (Provision of Services) (No. 3) Order 1987
Lord Beaverbrook: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 21st October be approved. [3rd Report from the Joint Committee]—(Lord Beaverhrook.)
On Question, Motion agreed to.

Parliamentary Constituencies (Wales) (Miscellaneous Charges) Order 1987
7.38 p.m.
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 9th July be approved [2nd Report from the Joint Committee].
The noble Earl said: My Lords, the draft order implements the recommendations made by the Parliamentary Boundary Commission for Wales in its report on 21 constituencies in South Wales. The draft order was laid before the House on 9th July. The Joint Committee on Statutory Instruments has considered the order.
We are considering here tonight the recommendations arising from an interim review carried out by the Welsh Boundary Commission, which has the duty of keeping the distribution of seats in Wales under continuous review. The commission completed its last general review of Wales in 1983, and its next report covering the whole country is due between 1993 and 1998. In the intervening period, however, the work of the Local Government Boundary Commission for Wales has led to changes being made in local authority boundaries so that they no longer coincide with constituency boundaries. The commission has been working to remove these anomalies, which can cause inconvenience and
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confusion to electors, local authorities and political organisations.
Articles 2 to 6 of the draft order substitute the constituencies in the schedule (which are those recommended by the commission) for those set out in the Parliamentary Constituencies (Wales) Order 1983. Article 1(3) enables the order to come into force when it is made by Her Majesty in council, although the new constituencies will not come into being until a general election is called. Any by-elections in the meantime will be held on the existing boundaries.
The order includes 21 constituencies in South Wales. The commission published its proposals in July 1986. Nine representations were made, four of which resulted in the holding of a public inquiry into the commission's proposals for Gower, Neath, Swansea East and Swansea West. The major issue considered by the assistant commissioner at the inquiry was whether the community ward of Trebanos should be placed with the rest of the community of Pontadawe in Neath, as the commission proposed, or remain in Gower. The assistant commissioner upheld the commission's recommendations, and these are before your Lordships' House tonight.
The Home Secretary has not received any representations about the recommendations in this report, which, with the exception of the proposals for Trebanos ward that were examined at the public inquiry, are the minimum necessary to realign the constituency and local authority boundaries. In most cases few electors are affected, ranging from none to 386. Four constituencies will have larger net movements of electors; Gower will lose 2,644 and Swansea West 1,493. Swansea East will gain 2,803 and Neath 940.
I invite your Lordships to approve this draft order for implementing the commission's proposals in full.
Moved, That the draft order laid before the House on 9th July be approved [2nd Report from the Joint Committee]—(The Earl of Arran.)
Lord Prys-Davies: My Lords, I should like to thank the Minister for his explanation of the terms of the draft Order in Council. It springs from the report of the Boundary Commission for Wales dated 8th May 1987.
As the Minister has explained, the local government Boundary Commission for Wales had already altered some local authority boundary in South Wales, with the result that they diverged from the boundaries of parliamentary constituencies. This order realigns the constituency boundaries with the altered local government boundaries. Some of the changes do not affect any electors because they relate to empty land. Indeed, most of the changes affect few electors, but one of the changes has caused disappointment and controversy and I should like to say a few words about it.
The Minister has anticipated that my area of concern is the Welsh speaking community of Trebanos in the Swansea valley. The Order in Council involves the transfer of approximately 1,200 electors in the community ward of Trebanos from the present constituency of Gower to the Neath parliamentary constituency. As I understand it, the majority of the residents of Trebanos do not like their transfer to

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Neath one bit. Apart from the Government's party, every political party objected to the proposed transfer. The borough council of Lliw opposed the transfer. The Member of Parliament for the Gower constituency lodged a petition objecting to the transfer signed by approximately 797 of the residents.
The good people of Trebanos base their objection on the grounds that Trebanos has a greater affinity of interest with the Gower constituency than with the Neath constituency. As the Minister has pointed out, the assistant commissioner held a local inquiry. He accepted as a fact that there was a substantial body of opinion in the ward in favour of remaining in the present Gower constituency. Nevertheless, he upheld the commission's proposal because he could attach only limited weight to the petitioners' preferences "expressed without reasons" (those are his words) as distinct from the rule for redistribution for parliamentary seats.
On reading the report one stumbles across the phrase "expressed without reasons". I am not sure of the significance that we should attach to those three words. Is it something that he mentioned in passing or does it have a significance? I should like to ask the Minister whether it is the case that the more grounds pleaded in the petition the greater the weight which will be attached to the preference. I do not know whether the Minister is in a position to answer that question this evening, but I am sure that his answer would be of interest to other petitioners in the future.
I have no other question and no comment to make on the proposals in the draft order. However, I should like to take the opportunity of expressing my appreciation of the Boundary Commission's policy of producing its reports in bilingual form. There is a strong demand in Wales that the Welsh language should be used far more extensively in public administration. It is to be hoped that other public authorities in Wales will follow the example set by the Commission and other authorities, and henceforth publish their annual reports and all public documents bilingually. The Welsh language version reads very well and I should like to pay tribute to the growing skills of the Welsh translators of legal and public documents.
With those few comments and that single question, we on this side of the House support the draft Order in Council.
The Earl of Arran: My Lords, I am grateful for the comments of the noble Lord, Lord Prys-Davies. I agree that it is extremely useful and important that reports are published in both English and Welsh. That must be to the pleasure and use of both countries.
The noble Lord was both courteous and thoughtful enough to advise me earlier in the day of his question concerning the transfer of the Trebanos ward. I am able to say that in making recommendations the boundary commissions are bound by the rules for the redistribution of seats which are set out in Schedule 2 of the Parliamentary Constituencies Act 1986. As the assistant commissioner made clear in his thorough report of the local inquiry, there was a limit to the weight that he could properly attach to people's preferences as
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distinct from the provisions laid down by Parliament. He concluded that Trebanos had stronger links with Pontadawe and that the whole of the community of Pontadawe should be included in one constituency, Neath. The transfer would also bring the electorates of Gower and Neath closer to the electoral quota for Wales and reduce the disparity between the two electorates.
The matter has received the full and careful consideration of the Boundary Commission for Wales and of a local inquiry. My right honourable friend the Home Secretary has not received any representations about the recommendations in the report, which was laid before Parliament on 9th July this year.
In summary, the order represents part of the continuing process of ensuring that constituencies have boundaries that are clear and readily understood. With one exception, which was the subject of a public inquiry, these new boundaries are not innovative. They are all firmly based on existing local authority boundaries. I commend the order to your Lordships.
On Question, Motion agreed to.
The Earl of Dundee: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.50 to 8.25 p.m.]

Criminal Justice Bill [H.L.]
Consideration of amendments on Report resumed.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 26:
After Clause 30, insert the following new clause:
("Video recorded interviews admissible as evidence.
.—(1) In any criminal proceedings a video recorded interview with a child under the age of 14 may with the leave of the judge be tendered in evidence and if so tendered shall be admissible as evidence of any relevant matter.
(2) It shall be the duty of the Secretary of State to issue from time to time codes of practice for the conduct and recording of video interviews with children in connection with this section.
(3) In deciding whether to grant leave for a video recorded interview to be tendered in accordance with this section the judge shall consider all the circumstances including in particular—

(a) the probative value of the video interview in the light of the manner in which questions have been put to the child and answers given by him; and

(b) the question-whether the probative value of the video record may be outweighed by any prejudice arising there from:

Provided that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them.
(4) The fact that a video recorded interview has been tendered in evidence shall not prevent the child who has been interviewed from giving evidence in person at the trial and shall not affect the right of any party to cross-examine him if he gives evidence in person.
(5) Crown Court Rules and rules made in accordance with provisions of the Magistrates' Courts Act 1980 may be made for the purposes of this section.")
The noble and learned Lord said: My Lords, the House will recall that we had a substantial and valuable debate in Committee on the question of the provision of evidence by a child of tender years by means of video. I should like briefly to summarise the arguments.
I think it is common ground, and certainly it is the view of the Home Secretary, that so far as possible one should avoid the situation in which a young child is compelled to give evidence in court, especially so in cases in which the substance of the matters under consideration concerns what happened to the child himself or herself. In order to assist toward that common end, the Government have proposed in Clauses 30 and 31 of the Bill that a system should be adopted under which a young child can give evidence, presumably somewhere in the court building, by the method of using closed-circuit television which will prevent the child from seeing or being seen directly by anyone in the dock or persons who otherwise may be involved in the case.
That is a valuable provision but many noble Lords considered it insufficient and felt that there should be a provision in the Bill which would enable a prerecorded interview with the child, whether conducted by the police when the complaint was made originally or carried out in some other way, to be made available as evidence in the court. That would be supplementary in a way—but in a very special way—to the provisions already contained in the Bill in relation to the giving of evidence by that method.
I think it is fair to say that in Committee there was a very considerable amount of support for that proposal. It was felt, as indeed we feel, that any way which can, even to a small extent, avoid the necessity of the child actually appearing in the court building to give evidence should be taken. We take the view that the taking of a video record in these circumstances, probably fairly soon after the complaint—if there is a complaint—is very likely to be a very much better record of what accurately is reported, or actually happened, than something which perhaps the child has to remember months later.
We also took the view, and take the view, that there may well be many cases where, when the defendant has had the opportunity of seeing the video record and hearing what the child says, he may be inclined, for one reason or another, to decide that the sensible course—where, of course, what the child says is true—is not to force the child to give evidence and therefore force a continuation of proceedings which would, undoubtedly, do harm to the child but where justified, to plead guilty to the offence. Experience in the United States, where this system has been adopted, suggests that this will often happen. One senses, particularly where we are dealing with parents or relatives of a child—whatever may have happened in the past—that the feeling of compassion towards the child which is likely to exist may well persuade the parent or relative to take the course I have just suggested. Therefore, for all of those reasons, the use of the video can be an extremely valuable additional method of avoiding the necessity for a young child to give evidence.
At the Committee stage, I think it is fair to say that the major objection to the amendment then moved, expressed by the noble and learned Lord, Lord Hailsham, but also by others, was that we had not made provision—deliberately had not, at that stage, made provision—to compel the child to give evidence if that should be required. It seemed very clear that
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the feeling of the Committee was that that provision should be made but that there would be very real difficulties in passing an amendment of this kind, however valuable, through the House unless it were guaranteed that the ordinary right to ask questions, and cross-examine, should be available if a party to the proceedings, one of the defendants, wished to do so. So we have made that change in the amendment. It is to be seen as a proviso to subsection (3), which provides that leave shall not be granted by the judge unless he is satisfied that all parties who may wish to put questions to the child will, at the trial, have a fair opportunity to put them.
The amendment that we now propose, if I may summarise, is firstly that the video recorded interview with the child under the age of 14 may be tendered in evidence if the judge grants leave. If tendered, it will then he available as evidence in the ordinary way provided that the judge, before he decides to grant leave, has regard to all the circumstances. In particular, he is to have regard to the probative value of the video interview in the light of the manner in which the questions have been put to the child and, of course, the answers given by the child. That would be apparent to the judge on seeing the video record himself. He must also consider, generally, the question of whether the probative value of the record may be outweighed by any prejudice which arises from it. We come then to the vital proviso that leave should not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will have a fair opportunity to do so at the trial.
We make provision in subsection (2) for the Secretary of State to issue codes of practice for the conduct and recording of video interviews, bearing in mind that this is an area that is constantly developing in other countries and, when law, will certainly develop here. We shall learn a great deal about the best way in which this system can be put into action. We provide in subsection (4) that a video interview having been tendered in evidence should not prevent the child who is being interviewed from giving evidence in person at the trial and should not, if he does so, affect the right of cross-examination. That may be thought to speak for itself; but it is probably as well to make quite clear that this is intended to be the situation.
Finally, we provide that as regards the actual technicalities of court procedure, the Crown Court rules, and the rules under the Magistrates' Court Act, should deal with those matters.
I hope I have dealt with this matter reasonably slowly having regard to the fact that this is the second round and my noble colleagues—if I can so describe them—have also put their names down and will, no doubt, be adding particular points.
May I say just one word in regard to the amendments which will, no doubt, be moved by my noble friend Lord Paget. They seem a praiseworthy attempt to improve on my drafting, for the most part, and I am always pleased when that is done for me. However, there is one amendment my noble friend will speak about particularly, and that is Amendment No. 28. He proposes that subsection (3) should be omitted from the amendment that I am moving. If that amendment is agreed to, and subsection (3) is

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omitted, that would have the result that the proviso to subsection (3), which we have inserted at this stage to preserve the right of cross-examination, would go, and no cross-examination would be compellable. I rather wonder whether my noble friend intended to have that effect. In due course perhaps he will let us know. I beg to move.
The Deputy Speaker (Baroness Serota): My Lords, as an amendment to Amendment No. 26, I call Amendment No. 27, in the name of the noble Lord, Lord Paget of Northampton.
Lord Paget of Northampton Lord Paget of Northampton moved, as an amendment to Amendment No. 26, Amendment No. 27:
In subsection (1), line 3, leave out from first ("evidence") to end of line 4 and insert ("and the judge shall not grant leave unless he is of the opinion that the video ought to be admitted in the interests of justice in the particular circumstances of the case. In the event of such leave being granted the accused may serve notice requiring the attendance of the child for cross-examination.").
The noble Lord said: My Lords, I am most grateful for the kind things that my noble and learned friend has said. I do not think there is any real difference in principle between the Government, my noble and learned friend and myself. We have a balance of two difficult things. On the one hand, all of us want to protect children. On the other hand, I think all of us are determined that even that objective shall not be put to the point of denying a man who faces this awful sort of accusation a fair trial. Those are the two essentials, and basically one has to give priority to the determination to provide a fair trial. When one is in a court that has to decide, the trial must be a fair one.
We must also bear in mind the tremendous tendency of children to romance. It is awfully silly to call children liars. The untruths that they are telling are often true to them. They are all mixed up. The difference between falsehood and truth is part of human education. It comes with education and is not there naturally.
The new clause which has been moved by my noble and learned friend provides that:
"In any criminal proceedings a video recorded interview with a child under the age of 14 may with the leave of the judge be tendered in evidence and if so tendered shall be admissible as evidence of any relevant matter".
With great respect, I do not see much point in those words. If it is ordered by a judge that a video shall be tendered in evidence, then of course it is tendered for all purposes and I would omit those words.
Further, once one has determined to make this a matter of leave by the judge, one recognises two things: first, that this is an exceptional and not a routine procedure in which a judge has to consider whether, with all the objections involved, a video ought to be used in that case; and, secondly, that one is giving discretion to the judge. It seems to me that there is very little point in telling the judge afterwards how he should exercise his discretion. That is for him to decide. Those are really my objections to subsections (3) and (4).
Lord Campbell of Alloway: My Lords, for clarification may I ask the noble Lord whether he recognises the distinction between evidence which is
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acceptable only as to the fact that a statement has been made and evidence which goes to the truth of the issues in dispute? If he accepts that distinction, can the noble Lord clarify his last few observations?
Lord Paget of Northampton: My Lords, I am deeply sorry, but I am afraid that I heard very little of what the noble Lord said. I am rather deaf. I have a hearing aid but it is not working very well.
Lord Campbell of Alloway: My Lords, it is not worth repetition; very little that I say is. It will be in Hansard.
8.45 p.m.
Lord Paget of Northampton: My Lords, subsection (2) of Amendment No. 26 reads:
"It shall be the duty of the Secretary of State to issue from time to time codes of practice for the conduct and recording of video interviews with children in connection with this section".
That is probably necessary. On the other hand, it is equally important that we should realise—this is where the judge's discretion comes in—that he is given discretion and that the use of videos should be an exceptional procedure and not a matter of routine. I view with considerable alarm the prospect of the idea getting around that if you talk to a social worker she will help you make a video.
Oddly enough, making a video is a rather romantic thing to do, particularly for children, and it has to be handled carefully. We do not want children saying, "What fun, let us go and make a video". Children are like that and, whether or not one likes it, most of the children in an estate will have seen videos, some of them not very nice videos. The idea of involving them in videos is something that one has to do with care.
Subsection (3)(a) deals with what the judge has to consider, but it is impossible to imagine a judge not considering those things. Of course he will consider the probative value and the question of whether the video is needed for the trial. If you are giving him discretion, it seems a little otiose to tell him how to use it.
Subsection (3) ends with the words:
"Provided that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them".
Why "all parties"? Why introduce this sort of general right? The only person who, in terms of justice and a fair trial, must have that right is the person who is accused. It should not be general.
What I have suggested in my amendment is that,
"the judge shall not grant leave unless he is of the opinion that the video ought to be admitted in the interests of justice in the particular circumstances of the case. In the event of such leave being granted the accused may serve notice requiring the attendance of the child for cross-examination".
I do not know whether I have the same intention, but I think that puts it with a little more precision. I suggest that there should be a clear indication that this is an exceptional procedure—not something which we are in the habit of doing—which can be very useful on occasion. I think that I cover the same points, but possibly with greater clarity. I beg to move.
Lord Edmund-Davies: My Lords, throughout the passage of this Bill the Government have been

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concerned with the forging of new remedies for old evils or have discovered fresh situations which menace the well-being of the community. In that context, they have dealt themselves, before any amendments came along, the special situation of children under 14 years of age who have been involved either as witnesses or as victims in dreadful offences. Clause 30 concerns the video link. Clause 31 contains another provision where children of tender years are involved.
Amendment No. 26, which has been tabled and dealt with by the noble and learned Lord, Lord Silkin of Dulwich, whose observations I respectfully desire to adopt as my own, deals with one of the situations which is either an old one which has manifested itself in a fresh and unpleasant manner or it has emerged only recently. So the amendment recognises the importance of an early interview. It provides for a video recorded interview and it provides that that may, with the leave of the judge, but not otherwise, be tendered and:
"be admissible as evidence of any relevant matter".
We must not burke it: it means evidence of the fact as well as that the account was made by the child.
Common sense indicates that the sooner an interview of that kind is conducted the better. The children's memories fade, perhaps rapidly in some cases. They dwell on the incidents which they allege they were subjected to and they become ill and confused. With time they end up in a pitiable state.
It is quite clearly desirable that if such an interview is to be conducted at all it should be done at the first possible moment. It does not brook of the presence of the person who is alleged to have been the perpetrator of the offences. It cannot be possible for a person to have had an opportunity at that time to question the child in person. What it can do is enable an inquiry or an interview to take place which is conducted by a reputable person. The suitability of those employed for that task will be strictly governed by the code of practice for the conduct and the recording of the interview. Then the video recording will be produced provided that the judge is satisfied that all parties who may wish to put questions to the child will have a fair opportunity to do that at the trial. This is only a slight extension of those remedies which the Government themselves recognised and adopted in the clauses in the Bill to which I have already made reference.
The new factor in this draft, as contrasted with the draft which was put forward in Committee, is the recognition of the defect in the old drafting which meant that no opportunity was necessarily afforded to the person who was accused. The amendment provides:
"that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them."
The idea that there should be any questioning of the child until the trial is quite unthinkable. It would lead to the harrying of a child before the trial, which we want to avoid in the child's own interests and in the interests of truth. It would enforce upon the prosecution an obligation which, to my knowledge, is not created and imposed in any other procedure in the criminal law. That is quite unacceptable. The first
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opportunity the accused person would have to question the child would be as in any ordinary crime—at the trial itself. To ask for more than that and to subject a child to a fresh terror would be quite unthinkable.
This is a moderate measure which seeks to recognise and give effect to the great sense of uneasiness which exists in the community at large when it hears again and again and more frequently than ever of the dreadful cases that are thrown up. I respectfully submit that in the circumstances of the new wording of the new clause the amendment merits acceptance by the House.
Lord Campbell of Alloway: My Lords, I oppose the amendment but I do so with a certain hesitation because I accept everything that the noble and learned Lord has said about the necessity of the provision for an early interview. But the question is: is this proviso adequate? Does it provide an adequate safeguard?
I confess to your Lordships that as regards that matter I have changed my opinion since I last spoke in your Lordships' House in deference to those noble Lords who spoke in Committee on the Bill. I confess that I was wrong to have supported the amendment in its previous form because it did not afford adequate safeguards to the accused. I was much moved by what was said by my noble friend the Minister and by my noble and learned friend Lord Hailsham of Saint Marylebone. Now I am convinced not only of the value of the first interview but also of the necessity to bring video recorded interviews forward in the law as admissible evidence. That is necessary to strengthen the safeguards for the accused. I have sought to do that in rather a DIY drafting for which I take total responsibility. I did that in Amendment No. 30, which I propose to move in due course.
It would be quite wrong, especially at this hour of the night, to weary your Lordships with the merits of that amendment but the safeguards are safeguards which are not envisaged elsewhere in the Bill. They are not envisaged in the amendment which I opposed for the reasons that I have given. In due course I propose to move Amendment No. 30, which provides in my respectful view adequate safeguards for the accused. That must assuredly be, in deference to the noble Lord, Lord Paget of Northampton, the primacy of our consideration.
9 p.m.
Lord Denning: My Lords, we discussed this matter in Committee. Let me say that in all criminal cases and in other cases the search is for truth and justice. We have, in justice to the children, brought into the Bill the video link. In the next door room at the trial there will be the child, the judge, the counsel and probably the solicitors questioning the child. Through the video, the jury in the trial room will see what is happening. That will probably take place six or 12 months after the incident complained of. The child will probably have either forgotten the incident or will have been told by those about her what she is to say in order to prepare her.
If we are to obtain truth and justice, the sooner the child's statement is taken the better. I have tried many cases and I have always found that a statement

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made to the police immediately after an incident is more likely to be true than a statement made weeks or months later. I suggest that a statement made on the new video cassette machines in easy and comfortable surroundings which do not create apprehension and nervousness and as soon as possible after the event should be admissible in evidence.
It is said that there must be protection for the accused by way of cross-examination. We place great store on cross-examination in our system. That is not the case in other jurisdictions, such as those on the Continent, and perhaps we place too much emphasis on it. It does not always bring out the truth. However, it is a valuable right which we wish to preserve and the amendment is designed to ensure that right. It will not be used at the time when the statement is made but later. It will depend on the judge giving leave, which is the safeguard. If the evidence of the child on video is admissible, it can then be tested in the trial.
I prefer the proposals contained in Amendment No. 26. In all those amendments, we are doing our best to secure truth and justice by the taking of statements as soon as possible after the commission of the offence and by preserving the right of cross-examination. The amendments vary slightly, but I support Amendment No. 26.
Lord Simon of Glaisdale: My Lords, it is clear from the speeches made by the proponents of the amendment that they are concerned with sexual abuse and assaults on young children. However, the new clause goes far beyond that when it states that video interviews are admissible in all criminal proceedings.
We also heard at Committee stage that the initial interview with the child is quite rightly taken for other than forensic purposes. In those circumstances, the social worker would put leading questions because it would be her objective to draw the child's story out. That is quite contrary to our forensic system and it is extremely dangerous because the result is apt to be the evidence of the social worker rather than that of the child.
Lord Campbell of Alloway: Hear, hear!
Lord Simon of Glaisdale: Even if that procedure was limited to cases of sexual abuse of young children, the noble Lord, Lord Paget, has rightly pointed out that perpetrators of abominable crimes are often exonerated or go free from prosecution. The alternative is to put the child through the trauma of giving evidence and recapitulating a terrible event in a way that is likely to be damaging and distressing. When I weigh those alternatives, I am convinced by the arguments of the noble Lord, Lord Paget, that bringing in this innovation would be most unsafe.
The noble Lord attempted to dismiss as unimportant the words in subsection (1):
"evidence of any relevant matter".
Those words are crucial because they make clear that a statement out of court, probably made in answer to leading questions, shall be not merely evidence of consistency of conduct but also evidence of the guilt of the accused.
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There is a further objection to the proviso in subsection (3). The noble Lord, Lord Paget, pointed out that the words "all parties" are not limited to the defendant. It is open to the prosecution to say: "I wish to put further questions". If a defendant asks for a child to be called to be cross-examined, he will immediately be subject to some prejudice against him by the jury. If he says that he wants the child called, the whole purpose of the clause is gone. The child will have to re-enact the terrible experience.
Therefore, we should do better to face the fact that some villians may get away with abominable crimes rather than risk prejudice against defendants as a result of early statements made on video or insisting on a child being called in circumstances where there will be prejudice against the man in the dock because of the nature of the crime. I beg your Lordships to remember the way it was put by my noble and learned friend Lord Hailsham in Committee. He said that the worse the crime the more essential it is to maintain the safeguards for the fair trial of the accused.
Baroness Faithfull: My Lords, I support the noble and learned Lord, Lord Edmund-Davies, and I am most grateful for the comments made by the noble and learned Lord, Lord Denning.
The amendment in another form was before your Lordships, as has been stated, on 22nd October. On that occasion the noble and learned Lord. Lord Hailsham, who has been referred to, said:
"it is a fundamental principle of English law that a man shall not be convicted of an offence unless it is proved to the satisfaction of the jury by admissible evidence that he is guilty beyond reasonable doubt".—[Official Report. 22/10/87: col. 279.]
I entirely agree with the noble and learned Lord.
Furthermore, I suggest that the children about whom we are talking would agree with him. No child's happiness is met, nor that of her family, if her father is unjustly convicted. I should say to the noble Lords, Lord Paget of Northampton and Lord Campbell of Alloway, that there is nothing in Amendment No. 26 to alter either the burden or the standard of proof in a criminal case.
The noble and learned Lord, Lord Edmund-Davies, in our last debate said that while never losing sight of that fundamental principle of our law there is another matter to be borne in mind—that justice be done to the children. I suggest that there is another facet—that justice be seen and be understood to be done by the community in which the family lives. With much regret, I wish to say this to the noble and learned Lord, Lord Simon of Glaisdale. He commented that it would be better for a man to be found not guilty or for the case to be discharged even if he had committed the offence.
Lord Simon of Glaisdale: My Lords, if the noble Baroness will allow me to intervene, that is not quite what I said. I said that it is better that one or two villains should escape than that an innocent man should be convicted through prejudice.
Lord Campbell of Alloway: My Lords, perhaps the noble Baroness will allow me to ask whether she would agree that we are in no way concerned with the burden of proof or with the standard of proof; we are

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concerned with admissibility of evidence. If she would address her mind to that issue, I should be obliged.
Baroness Faithfull: My Lords, to take up the point made by the noble and learned Lord, Lord Simon of Glaisdale, I apologise if I misinterpreted what he said. It is serious when a man who is alleged to have interfered with children is thought by the community to have been discharged and to have been found not guilty. I therefore suggest that a balance must be struck between the alleged offender, the child and the community.
My noble friend the Minister said on 22nd October that we need to consider the twin tests of benefit to the child and interests of justice. He said later that if tapes are admitted on a regular basis, a child may very well be faced with increased strain. It would lead to her being searchingly cross-examined on minor discrepancies between her video statement and her courtroom testimony, which would be worse than what happens now.
Amendment No. 26 would allow the prosecution to play a video tape of the child's original statement. There would be no need for a child to recount the incident before the video tape was shown. Therefore, there would be no discrepancy between the video tape and her courtroom testimony for the defence to exploit. Thus, what the Minister says the amendment will cause to happen will not happen. However, I suggest that what the Minister fears is exactly what will happen if this amendment is not passed. Without the amendment the prosecution will still have to make children tell the story to the court from memory many months after the events.
Where a video has been made the defence would be able to use it to cross-examine the child on minor discrepancies between the video statement and the story she told the court. That can be done under the existing rules of evidence. It is already happening. Unless this amendment is accepted, it will happen much more frequently as video tapes become more generally used.
This morning I received a letter from the NSPCC. I shall not read out the various points made except to say that the NSPCC is deeply disturbed in case this amendment is not accepted. I also add to the noble Lord, Lord Paget, that the NSPCC says:
"Research suggests that children rarely lie about abuse. It is in everyone's interest that they should be interviewed as soon as possible after the alleged event while what happens is fresh in their minds".
I support this amendment.
9.15 p.m.
The Earl of Caithness: My Lords, I do not want to rehearse at great length the arguments which I placed before your Lordships when we debated this important matter at an earlier stage. We had a very full debate then, and it would serve little purpose for me to go over substantially the same ground twice. Indeed, it would be against the procedure of this House so to do.
The noble and learned Lord, Lord Silkin, explained that this revised amendment sought to meet some of the concerns expressed by your Lordships during our earlier debates. The
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amendments to his new clause tabled by the noble Lord, Lord Paget, appear to go even further in that direction. Indeed, Amendment No. 30, in the name of my noble friend Lord Campbell of Alloway, addresses the same issue in a slightly different way.
These concerns, which I fully share, were that in the interests of justice an opportunity should be available for the child to be cross-examined at the trial on her evidence. The noble and learned Lord's amendment meets this point in preventing the judge from admitting a video recording unless he is satisfied that there will be a fair opportunity at the trial for cross examination. The amendments of the noble Lord, Lord Paget, similarly seek to enshrine the right of cross-examination in the clause, by the slightly different route of giving the accused an explicit right to insist on the child's attendance at the trial for that purpose.
The amendment of my noble friend Lord Campbell of Alloway is, with respect, a little less clear about whether such a right would exist but appears to envisage that there will be an opportunity for questioning at the time of the interview.
When we debated this matter in Committee, I offered the view that we should judge any proposed change to the law on two criteria: first, whether it would actually be in the best interests of the child; and, secondly, whether it was in the interests of justice. The amended version of the noble and learned Lord's new clause goes a long way to meet the concerns which were expressed on the second count. If the accused had a guarantee that if the recording were admitted and that the child would attend the trial and be available for cross-examination, no one could complain that the procedure was unjust. I am grateful to the noble and learned Lord for taking on hoard the importance of that point.
But what of the first count? That point was touched on by my noble friend Lady Faithfull. Would a procedure which guaranteed the right to cross-examine actually make matters easier for the child? In some cases the knowledge that the video recording could be admitted as evidence might just tip the balance between a guilty and a not guilty plea. Unless that happened, though, it seems extremely unlikely that counsel for the defence would ever let the opportunity for cross-examination pass. He would not be doing his duty to his client if he did so.
That being so, it seems to me that it is a moot point which of the two experiences would be less distressing for the child: watching the tape and then facing hostile questions on it by defence counsel, or first being led through the evidence by counsel for the prosecution. There is also the point which I made in Committee which I do not think can be lightly disregarded. It is highly unlikely that the child would be able to tell a completely consistent story on the two different occasions, separated in time as inevitably they would be. It is understandable that discrepancies would emerge. Everyone's memory, adult or child, is slightly imperfect.
It is true, as one commentator has pointed out, that it is already possible for previous inconsistent statements to be referred to by the defence and be the subject of cross-examination. But it seems to me much more likely that this would happen if a

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particular statement—the video recording—was the whole focus of the trial. The effect on the child of having counsel pick holes in an account which was already some way off in her recollection could, I suggest, be more distressing than first being taken through her best recollection of the events sympathetically by counsel for the prosecution, and then facing cross-examination. In the latter case, the child's first experience of the trial would be of questioning by someone who appeared to believe her story. With the recorded evidence, her only experience would be of the defence counsel's apparent disbelief.
It therefore seems to me, as I have said, to be a moot point whether the court appearance would be any less distressing for the child if the video recording were admitted than if it were not. For the reasons I have given, it seems quite possible that it would be more distressing. If that were my only doubt about the noble and learned Lord's proposal, I might be willing to accept it. But there is a more substantial worry, to which the noble Lord, Lord Hutchinson, referred in Committee, and to which the noble and learned Lord, Lord Simon of Glaisdale, referred this evening; that is, there is a distinction between clinical and forensic diagnosis. I put the matter slightly differently. I agree with the noble and learned Lord and the noble Lord that there is a distinction between, on the one hand, the type of interview which will contribute to the requirements of investigation and the judgments of doctors, social workers and child psychiatrists, and, on the other, the type of interview which will be acceptable as evidence in court. The first is likely to involve different interviewing techniques, including leading questions and prompting, which would never be allowed in court. It may, as the noble Lord, Lord Hutchinson, said, conceivably replace the first statement made to the police, but it is subject to constraints different from those to which evidence for court purposes is subject.
The conclusion that I drew in our earlier debate (which has not been challenged today), is that the differences are so great that two interviews rather than one would be necessary—one to meet the purposes which experiments such as the one going on in Bexley serve; and the other against the possibility that criminal proceedings would result. I emphasise the word "possibility", because in many cases the matter never comes to court and is resolved in other ways. But if the scheme which the movers of these amendments favour were implemented, additional interviews, in a form suitable for use in court, would be conducted in cases where there was any prospect of a court appearance at the end of the line.
All of us who have taken part in this debate have had the best interests of the child victim uppermost in our minds. It is not a debate between those who would like to reduce the ordeal suffered by the child victim and those who would not. My fear is that we might, if we accepted these amendments, make matters worse, by creating a structure within which the child had to undergo two interviews shortly after the assault, and at the end of the day still had to come to court to be cross-examined.
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The noble and learned Lord, Lord Silkin of Dulwich, referred to the experience in America. Under today's systems, it is possible for a video recording to be made and shown to the accused. That video recording cannot be shown in court under present circumstances because it would not abide by the rules of the court, and, therefore, a second interview would be necessary, which could lead to a more distressing situation for the child.
I hope that your Lordships will shortly accept amendments to remove the strict requirement that the unsworn testimony of a young child must be corroborated. The Bill already contains provisions for children's evidence to be given by closed-circuit television. These are two important changes and demonstrate our willingness to contemplate and promote reform in this difficult area. We can make them with confidence. We can also applaud, and watch with interest, the developments which have been taking place in the video recording of interviews with child victims for the range of purposes I have described. The discussion begun in our debates on this Bill should no doubt continue. But even after today's debate, I do not believe that we could be sufficiently confident about the outcome to move towards the use of video recordings as the primary evidence in trials of these distressing cases.
Lord Silkin of Dulwich: My Lords, I at least detect that the noble Earl and those of us who have put these amendments forward are moving sensibly towards one another. I am grateful for the view expressed by the Minister that the proviso to subsection (3) meets one of the major points that he put forward on the last occasion. The second one is in his view fairly well balanced, to the extent that if he were concerned with those two alone he might be prepared to accept the amendment as it stands. I understood that to be what he was saying.
What seems to cause his final hesitation is what I consider to be seeking the ideal in a way which makes it the enemy of the valuable. Any system of this kind is bound to have its own built-in difficulties. Certainly there are difficulties in the system which we have already accepted in the clauses now in the Bill. The noble and learned Lord, Lord Denning, referred to them on the last occasion and I need not repeat them.
I do not see that those difficulties are going to be so easily resolved that they solve the child problem. We should be looking constantly for improvement and I gathered from what the Minister said that we are in agreement with one another.
As regards the real problem—namely, the difference between the kind of video record which one would ideally want for the purposes of evidence and what might be the first statement or complaint made by the child—I am not sure that there is very much difference between that situation and the situation which one constantly has in relation to any criminal case. A complaint is made by somebody, whether a child or not, and, when sufficient material is available to the police, they take down the evidence in what one might call forensic form and the trial is likely to be based upon it. In practice that may well be the evidence which appears before the magistrates' court in due course.

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I do not think it is necessarily the real objection that the child may be asked at that stage to repeat what he has already said. The suggestion is that the trauma of having to say it will be that much greater. It seems to me that that is very likely to happen whatever method is used for producing the evidence before the court. It is likely to happen in the case of the child who gives evidence in person or gives evidence in accordance with the procedures now in the Bill.
In the initial stages the child is likely to have to repeat what he is saying. He is likely to be asked questions. The important thing is that he should be asked questions by someone with experience of dealing with children, someone with the necessary sensitivity and someone who knows what will be required for the purposes of evidence. The importance of the code of practice which will develop will clearly be very great as this method becomes more acceptable in the future. It will dictate the way in which the child is treated.
It seems to me that at this hour of the night I should not really be testing the opinion of the House properly by seeking to obtain a vote. My feeling is that the debate has been a useful one as a prelude to what I am sure will be a succession of debates in another place. In the course of those debates I hope that agreement will be reached between those who want this procedure to be adopted and the Minister and the Home Office, who are clearly interested in obtaining the right result if the right result can be obtained.
It has seemed to me that those who took part in the debate this evening, almost without exception, were in agreement with the principle of what we are proposing. I suspect that there will be a very wide measure of support for the principle when the matter goes to another place, as I am sure it will. In those circumstances I hope that I am not, in saying this, disappointing those who have put their name to the amendment and who have worked very hard to get the best answer possible, I think it would be in the best interests of getting the right solution at the end of the day if I were to ask leave to withdraw the amendment.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, does the noble Lord, Lord Paget, desire to press his amendment?
Lord Paget of Northampton: My Lords, perhaps I may ask similar leave to withdraw my amendment.
Amendment to the amendment, by leave, withdrawn.
[Amendments Nos. 28 and 29 not moved]:
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 30:
After Clause 30, insert the following new clause?—
(".—(1) In any proceedings before a Magistrates' Court enquiring into an offence as examining justices to which section 31(2) applies, or in any other criminal proceedings, a video
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recorded interview with a child under the age of 14 may, subject to grant of leave in accordance with subsection (2) of this section, be tendered in evidence and if so tendered shall be admissible as evidence on any relevant matters in issue in such proceedings.
(2) Leave under subsection (1) of this section shall not be granted.

(a) a tape of such evidence certified as accurate, complete and unaltered by the maker thereof shall have been lodged with the Court, and copies shall have been supplied to all parties;

(b) all persons who conducted or arranged for the conduct of the interview shall have provided signed statements to the Court and copies shall have been supplied to all parties as to the manner of conduct of the interview: and all such persons are available to give evidence and be questioned if so required by any of the parties;

(c) an opportunity shall have been afforded to the parties to question the child in person, and to the child to give evidence in person;

(d) in the opinion of the Court taking into account all the circumstances of the case any prejudicial affect of such evidence is outweighed by its probative value;

(e) in the opinion of the Court there has been substantial compliance with the provisions of such Code of Practice as shall have been issued by the Secretary of State under subsection (3) of this section.

(3) The Secretary of State shall issue on the date upon which this Act takes effect, and thereafter may issue from time to time, Codes of Practice for the conduct and recording of video interviews with children in connection with this section.
(4) Crown Court Rules and rules made in accordance with provision of the Magistrates' Courts Act 1980 may be made for the purposes of this section.").
The noble Lord said: My Lords, at this hour I shall be brief. This is purely a probing amendment to seek to canvass some of the views of your Lordships. I shall make very few points on it. The first point is that we are concerned only with the admissibility of evidence—never to be confused with the burden of proof or the standard of proof for fear of ending up in total confusion. Secondly, the question is whether the proviso to Amendment No. 26 in subsection (3) affords a sufficient safeguard for the accused if we were to implement the broad principle which these amendments envisage.
Having listened to what was said by other noble Lords at Committee stage, I was satisfied—of course, it is entirely a matter for your Lordships—that the safeguards of this proviso were not adequate. In this area there are considerations which one simply has to accept as part of the facts of life. Children are open to suggestion. They wish to give pleasing answers. The toy ploy with the social workers or whoever it may be is open to serious reservations without the safeguard which I have sought to set out in the amendment. There is scope for the—albeit well-intentioned—error on the part of social workers, even child psychologists and psychiatrists. I do not want to make capital out of Cleveland, but there is a certain aura of disquiet about experts in this sphere. I think it is important that safeguards should be adequate and true safeguards for a fair trial for the accused.
Therefore I have tabled safeguards, first, to extend under subsection (1) the area of incidence to the examining justices; and, secondly, under subsection (2), to have the tape certified by the maker as accurate—a point that was taken up at Committee stage—with copies for the accused and all parties and to have statements from whoever arranged the conduct of the interview, or conducted it, available to the court and to the parties.
Then there is the question of the child having to give evidence, which is provided for in subsection (3) of Amendment No. 26. But there is absolutely no safeguard as to subsection (2)(a) or (b), which is a matter of crucial consequence. You simply must have the statements of the social workers who conduct the interview. You must have them there. You must be able to cross-examine them in depth if you are defending an accused. There is no other way, and it must be mandatory.
Furthermore it is no use just referring to a code of practice without designating. It is a legal incidence. It is a fact. You cannot just refer to a code of practice in the air. You must make up your mind what legal effect it must have. I propose that it should be mandatory upon the Secretary of State to publish this code of practice at the time the Act comes into effect; and that, if there has not been substantial compliance with it by the social workers, the police or whoever it is, evidence should not be admissible. I stress that we are concerned with the admissibility of evidence, not with the burden of proof and not with the standard of proof. We are primarily concerned with fair trial in this country.
Baroness Faithfull: My Lords, I should like to take up one point made by the noble Lord, Lord Campbell of Alloway, which has been referred to by the noble and learned Lord, Lord Simon of Glaisdale. I do not think that those of us who support the use of the video thought of social workers as being the people to conduct the initial interview. Most of us imagined that the initial interview would be carried out probably by a policewoman or policeman who was well trained in this area and one other person acceptable to the court. We had not imagined that it would be a social worker involved in the case.
Lord Kilbracken: My Lords, I want only to ask the noble Lord if he can tell us whether a word has been left out at the end of the first line of subsection (2). I believe that the word "unless" should be inserted there.
Lord Campbell of Alloway: My Lords, inevitably the word "unless" was lost in the printing. I gather that there was some complaint about this earlier today. I make no complaint. It is only a probing amendment.
Lord Simon of Glaisdale: My Lords, on examining the drafting, paragraphs (a) and (b) seem to need the word "unless" but paragraphs (c) and (d) seem to need the word "if".
The Earl of Caithness: My Lords, my noble friend has explained with his usual clarity the purpose of Amendment No. 30. It differs in several respects from the amendments that we have just been discussing. There would, as I understand it, be more structured arrangements for the conduct of the interview and a formal opportunity for the parties to question the child, presumably at the time of the interview. What I find less clear—and this bears on the debate that we had on earlier amendments—is whether the
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defendant would be able to insist that the child attend the trial for cross-examination.
I have two doubts about this. The first is that, if I am right in thinking that there would be no guarantee for the accused that the child would attend the trial, all the objections which were raised during our discussion of an earlier amendment in Committee would come into play. The second is that a more formal arrangement for the interview itself with, for example, those responsible for its conduct being themselves made available for questioning, would take us quite a long way from the immediacy and the informality that the noble and learned Lord, Lord Silkin, and my noble friend Lady Faithfull saw as one of the main attractions of their proposal.
If there were an opportunity for questioning on behalf of the accused at that stage, I am not by any means sure that there would be any reduction in the ordeal suffered by the child. Indeed, my noble friend Lady Faithfull picked up another point about social workers carrying out the interview to which my noble friend alluded.
I do not want to discourage my noble friend but I think that his amendment highlights the diversity of view that still exists on this subject, and, if anything, bears out my view that we should approach it with extreme caution. Having said that, I should like to read again all that has been said on this important matter tonight and to consult my right honourable friend the Home Secretary. We believe that it is part of an ongoing debate that is by no means finalised, because the more that we look into this matter the more problems we see, and perhaps the more we can overcome some of the problems. The matter is by no means finalised and we still have quite a lot of discussing to do, and I am grateful for your Lordships' contribution tonight.
Lord Campbell of Alloway: My Lords, I accept everything that my noble friend the Minister has said. I am grateful to him for his patience and for the patience of your Lordships at this hour of night in having deigned to consider this amendment. The position simply is that I feel in my bones we have to move ahead. We have to move some way somehow to redress the balance to protect the child against the molester.
Each time I seek to move, I seem, as do your Lordships, to find that we come up against the brick wall of the question: how can we have a fair trial? I shall never return to this subject. I feel defeated by it. I truly wished to contribute. Now, having listened to everthing that has been said, I feel I have no further contribution to make. I beg leave to withdraw the amendment.
The Earl of Caithness: My Lords, before my noble friend sits down I hope that he will reconsider those remarks. He has an important contribution to make, as do all your Lordships, to this important debate now and in the future.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 31:
After Clause 30, insert the following new Clause:
("Evidence of child of tender years.
.—(1) In section 38 of the Children and Young Persons Act 1933, the words "and understands the duty of speaking the truth" shall cease to have effect and there shall be substituted the words "and appears to be capable of giving truthful evidence".
(2) In the said section 38, the proviso to subsection (1) thereof shall cease to have effect.
(3) In any criminal proceedings in which a child of tender years (whether sworn or unsworn) has given evidence or a video recorded interview has been tendered in accordance with section (Video recorded interviews admissible as evidence), the judge shall consider whether in the light of all the evidence (including evidence as to the age of the child and the nature and seriousness of the offence charged) he should—

(a) withdraw the case from the jury on the ground that a conviction would be unsafe or unsatisfactory; or

(b) warn the jury of the danger of convicting on such evidence if uncorroborated.

(4) The power of the judge to withdraw the case in accordance with this section shall not affect his right to hold that there is no case for the defendant to answer.").
The noble and learned Lord said: My Lords, with this amendment it is proposed to take Amendments Nos. 32, 134 and 140. Amendment No. 31, like the last one that I moved, arises out of the discussions in Committee when I moved an amendment in similar form to, though not identical with, this one. The noble Earl, though objecting to some parts of it, went so far as to say that in principle the Government viewed it favourably. That view has been shown by the fact that the noble Earl himself has put down the following amendment, Amendment No. 32, which goes at least part of the way towards meeting the points in Amendment No. 31.
Perhaps I may briefly explain the purpose of this amendment and the points of difference. The major purpose of Amendment No. 31 is to remove from the law two provisions in the Children and Young Persons Act 1933, now over 50 years old, which appear to be out of accord with modern ideas, particularly in the light of knowledge gained about children. The proviso to Section 38 of the Act is dealt with in subsection (2) of our new clause which states that the proviso ceases to have effect. The noble Earl's Amendment No. 32 sets that out at length and explains the provision more clearly and precisely. It deals with the provision for corroboration.
In subsection (1) of the Government's new clause and subsection (2) of our new clause we are at one except that we differ over the wording. I do not think that there is any difference in the substance. Subsection (2) of the Government's new clause, which also deals with corroboration, may go further than our proposal. The basis of our amendment is contained in subsection (3)(b) where we suggest that in certain circumstances the judge may think it necessary to warn the jury of the danger of convicting on the evidence of a young child if uncorroborated. The Government's proposal is that any requirement of corroboration should be removed altogether.
The substantial difference between us occurs in subsection (1) of our new clause where we wish to remove the provision of the 1933 Act concerning the necessity for a judge, before allowing a child to give unsworn evidence, to ensure that the child
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understands the duty of speaking the truth. Our view is that that is unrealistic and that it is not an up-to-date approach to the difficulty in which one finds oneself. We wish to change that expression so that the duty of the judge is merely to be satisfied that the child is capable of giving truthful evidence. That seems to us to be more in accord with what is now understood about children. We hope that the Government will agree with our view that the concept of a child understanding the duty of speaking the truth, while it may apply perfectly well to an older child, becomes somewhat meaningless when one is dealing with a young child of three, four or live. The concept of appearing to be capable of giving truthful evidence is easier to satisfy and it does not require knowledge by the child of the kind of technicalities involved in the law as it stands.
I am not concerned with which of the two amendments should be accepted by the House, either the Government amendment or our own. However, I would be concerned if the effect of subsection (1) were not taken into account in one way or another. Therefore, I ask the Minister, when he comes to give the Government's view whether he is prepared to look at the effect of our subsection (1) and give an undertaking that something which covers the point will be put into the Government's amendment at a later stage if at all possible. If he is prepared to do that, I think there will be sufficient agreement between the two amendments for me not to pursue ours and to accept the Government's. In the meantime I beg to move.
Lord Denning: My Lords, I am anxious about both these amendments. I have tried many cases in which young children were concerned and my experience is similar to that of many judges over the centuries; namely, that a child's evidence is most unreliable unless it is corroborated or supported in some way. A child may imagine things and invent situations. Parents and other adults may make suggestions to the child and when it comes to the trial six or 12 months later the truth may sound very different.
I suggest that our forefathers were right. The judges and those who framed the law in 1933 were right. One should not rely on a child's unsworn evidence unless it is corroborated in some material particular. Furthermore, that evidence should not be relied upon unless in any event a warning is given to the jury to bear in mind that it comes from a young child and that they should not convict unless they are sure. The experience of judges down the centuries has surely proved right and has resulted in the existing law, which protects the accused from an unjust conviction.
When I supported the earlier amendment, I was under the impression that these safeguards for the accused would still remain. These amendments take away the safeguards of the accused against an unjust conviction. I am very nervous and anxious about these provisions being taken into the law and removing a safeguard which the law gives to an accused person.
Lord Edmund-Davies: My Lords, in view of the Government's amendment, Amendment No. 32, and considering the lateness of the hour, I gratefully accept the observations made by the noble and learned Lord, Lord Silkin, and do not desire to add any words of my own.
Lord Hutchinson of Lullington: My Lords, I am unhappy about both these amendments. I ask the Government, as one always tends to do where children are concerned, to hold their hand before coming to any firm conclusion. I go along with the amendments in that I should have thought that we had reached a stage in relation to the evidence of children at which they should be allowed to give straight evidence—there should be no requirement for the complexities of corroboration at all.
To those who practise in the criminal courts, the complexities of corroboration have become quite idiotic; namely, whether one child can corroborate another child, whether a sworn child can corroborate an unsworn child, and so forth. I should have thought that we had now reached the stage where a child can give evidence.
If a child can give evidence, it seems to me of overwhelming importance that in every case a judge should warn the jury about the dangers of accepting that child's evidence without confirmation from any other source. As I said at Committee stage, it seems to me that a child's evidence is very similar to evidence of identification, and that unbeknown to most people identification evidence is bound to be very dangerous and suspect because of human error. Moreover, all the experience in the courts is that identification evidence requires some confirmation because human error is so enormous. Surely, the whole experience that all of us who deal with children have had is that the evidence of children is liable to be unreliable, It is important that any jury, testing the evidence of children, should be so warned.
It seems to me a great mistake, in Amendment No. 31, to put the onus on a judge to decide whether in case A he should warn the jury, or whether in case B he should not warn the jury. How on earth would any Court of Appeal be able to decide whether a judge ought to have warned the jury in case A or whether he ought to have done so in case B? Surely there must be a straightforward rule that, in all cases, a judge is under an obligation to warn the jury of the dangers of accepting the evidence of children; but the child should be entitled to give the evidence. I would have thought that this was a simple situation and one which, perhaps, could be adopted eventually.
Equally, in Amendment No. 32, I would be very much opposed to subsection (2) which abrogates the requirement for a warning when a child gives evidence: that I would be entirely against. I would have thought it would have been exactly the opposite: get rid of the corroboration but insist on some sort of warning by the judge.
The Earl of Caithness: My Lords, it is most disappointing to find the noble and learned Lord, Lord Denning, teaming up in opposition to me with the noble Lord, Lord Hutchinson of Lullington—a formidable duo. I would have hoped that they would raise their concern when we discussed this precise point on 22nd October at Committee stage. Perhaps I can recap briefly on what I said then. I said that we had come to the conclusion that the little amount of comparative research that has taken place indicates that children are as good witnesses as adults. This is a result of the literature review of the scientific evidence for and against the present corroboration requirement which my right honourable friend the Home Secretary set in hand earlier this year. Therefore, this is a decision that has not been set in hand lightly or without due consideration. I hope that what I go on to say will go some way to alleviate the concern of both the noble and learned Lord and the noble Lord, Lord Hutchinson of Lullington.
The new clause that the noble and learned Lord, Lord Silkin, proposes would repeal the existing requirement that the unsworn evidence of a child must be corroborated. In replying to him, I should like to speak also to the amendments in my name, Amendments Nos. 32, 134 and 140, which we shall come to shortly. As I said in the earlier debates, I accept the principle that the unsworn evidence of a child should be received on the same basis as evidence from an adult. We reached this view, as just recounted, with the assistance of the literature review, commissioned by my right honourable friend the Home Secretary, of the relevant research material. Thus, the new clause I have tabled removes this requirement of corroboration, as does the amendment tabled by the noble and learned Lord opposite. We are agreed on that principle.
There are, however, some differences between us that I would like to draw to your Lordships' attention. I shall also try to counter some of the arguments put so persuasively by the noble and learned Lord. Subsection (2) of my amendment would apply the existing strictures on the use of uncorroborated evidence from adults to uncorroborated evidence given by children. This is because I am not convinced that the case has been made out for changing the rule that in the case of a sexual offence the judge must warn the jury of the need for caution before convicting the defendant purely on the strength of uncorroborated evidence from the complainant. Under the existing law this applies where the complainant is an adult or a child.
The noble and learned Lord's new clause would make such a warning optional if the witness was a child and I do not believe that that would be right. I propose in my amendment that in a sex case the judge will warn the jury of the potential dangers involved in convicting a man, if the only evidence is from the alleged victim, on exactly the same basis as if the victim is an adult. I hope that that goes some way to reassuring the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Denning. But if the jury believe that the child's story is correct, I see no reason why they should be forbidden to bring in a

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guilty verdict. That is the first reason why I would ask your Lordships to support my amendment rather than the noble and learned Lord's.
The second reason centres on the amendment in the noble and learned Lord's clause to the existing requirement in Section 38 of the Children and Young persons Act 1933, that before a child's unsworn evidence could be received she must understand the duty of speaking the truth. The noble and learned Lord has taken the point from our earlier debates that there must be some requirement of this kind and his new clause replaces those words with:
"appears to be capable of giving truthful evidence".
The existing test has not proved unduly restrictive and I hesitate therefore to replace it with a new one, particularly one that looks on the face of it to be much harder to apply.
It is one thing for a judge to ask a child whether she understands the duty of being truthful and to come to a decision based on her answer. It is quite another thing to ask a judge to decide whether a child looks truthful or not, as this amendment appears to do. It is for those two reasons that I prefer the approach of the Government's amendment. I hope that the noble and learned Lord will accept my explanation and be willing to support my amendment rather than his when it comes to the point. The important thing, as I am sure the noble and learned Lord will agree, is that the strict corroboration requirement should go and I am glad that we have been able to find common cause in that.
10 p.m.
Lord Silkin of Dulwich: My Lords, may I make one correction in what the Minister said? Subsection (1) of the amendment which I moved has nothing within it which requires a judge to make any decision as to whether the child is, in fact, truthful. The requirement is that the judge should be satisfied that it appears to him that the child is capable of giving truthful evidence, which is a very different thing.
I find it very difficult to see why it should be suggested that when the test is having regard to the child's age, and the other factors inherent so far as the child is concerned, that is a more stringent test than the existing test of understanding the duty of speaking the truth, which brings into the matter such concepts as that of duty itself which 1, and those who support this amendment, consider to be a very difficult one.
The Minister suggested that in practice it has not produced a great deal of difficulty. My understanding is that it has produced difficulty. At any rate, it seems to me that the alternative we suggest is a more realistic one and I find it difficult to see why that should prove more difficult to apply. I should have thought it would be easier to apply.
However, at this hour of the night I shall not argue at very great length over the amendment. I hope that the Minister will look at that point again. He has been very willing to examine the arguments that have been put forward as regards that point. There has been a difference of view on other points, including points which are common to the Minister and ourselves. But
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so far as concerns this point, there does not seem to have been expressed any real difference other than that expressed by the Minister himself. Perhaps he might at least take the view that there is not strong opposition to it. I can see that at this hour of the night one would not expect a succession of speakers on the point. But there it is. If the Minister would look at that again I should be very grateful. Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 32:
After Clause 31, insert the following new clause:
("Abolition of requirement of corroboration for unsworn evidence of children.
.—(1) The proviso to subsection (1) of section 38 of the Children and Young Persons Act 1933 (under which, where the unsworn evidence of a child of tender years admitted by virtue of that section is given on behalf of the prosecution, the accused is not liable to be convicted unless that evidence is corroborated by some other material evidence in support thereof implicating him) shall cease to have effect.
(2) Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child is abrogated in relation to cases where such a warning is required by reason only that the evidence is the evidence of a child.").
The noble Earl said: My Lords, I beg to move.
Lord Wigoder: My Lords, as this amendment is being moved I wish to say a few brief words in support of what my noble friend Lord Hutchinson of Lullington said. It is simply this. I believe that any judge who has had any experience on the Bench, any experience at the Bar or any experience as a parent will inevitably and invariably want to warn the jury, in any case in which there is a child giving evidence, of the possible dangers involved. I feel that very strongly and I know that my noble friend does too. Clearly the noble and learned Lord, Lord Denning, feels the same. In those circumstances, if the noble Earl feels that he must move the amendment at this stage we will really have no alternative but to divide the House against him.
In view of what has been said in your Lordships' House this evening I ask the Minister whether he will consider taking the matter back and reflecting upon it before the next stage.
The Earl of Caithness: My Lords, it surprised me that the noble Lord, Lord Wigoder, used the words he used. There was a very good opportunity in Committee on 22nd October when those exact points could have been raised. Of course I shall look at this matter again, but I do not think that at this stage, having made the commitment I made in Committee, it would be right for me to withdraw this amendment.
Lord Hutchinson of Lullington: My Lords, the Minister said that there was ample opportunity to make these points. I know that I have always taken the view that when children are giving evidence a warning should be administered to the jury. I am perfectly sure, without going back to that occasion, that I took that view in Committee. The Minister really should not suggest that this is a completely new view which is being put forward by this side of the House.

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It is a view which I have consistently held throughout the time I have had to deal with children giving evidence. It is perfectly clear to anyone with experience that a warning must be given about children's evidence. Children's evidence is bound to be unreliable. The possibility of its being unreliable must be placed before a jury. I must ask the Minister to think again about whether he wishes to press the amendment.
The noble and learned Lord, Lord Silkin of Dulwich, has been extremely co-operative and has withdrawn his amendment. Would it not be proper for the Government to withdraw their amendment too so that further thought may be given to this matter?
Baroness Seear: My Lords, the Minister referred to certain research evidence which he has received. I do not suppose that many of us in the House have received that evidence. It would be extremely useful and helpful if we knew more about that research evidence. As all of us who have worked in the research field know, there is research evidence and there is research evidence. Some of it is better evidence than other evidence.
The Earl of Caithness: My Lords, with the leave of the House, I must say to the noble Lord, Lord Hutchinson of Lullington, that I have before me a copy of the Official Report of 22nd October. That shows that the only two people who took part in the debate were the noble and learned Lord, Lord Silkin of Dulwich, and myself. The noble Lord, Lord Hutchinson of Lullington, may be absolutely right. I have no reason to doubt that he felt strongly on this point. However, there was an opportunity in Committee to raise those points, but I regret that he did not take it.
As regards what the noble Baroness, Lady Seear, said, my right honourable friend the Home Secretary instigated a literature review. That means that it was a review of all the evidence available before us. As the noble Baroness rightly said, there is evidence and evidence. Due weight was given to that fact. However, there are copies of the research evidence in the Library of the House; they have been there for some time. In all those circumstances it would be wrong for me to withdraw the amendment now.
The noble and learned Lord, Lord Silkin of Dulwich, withdrew his amendment, as the noble Lord, Lord Wigoder, said. That is because we are on common ground and dealing with two fine points within that common ground.
Lord Silkin of Dulwich: My Lords, I think the Minister is right in insisting on the amendment. All I want to add is that the argument between the Minister and those on the Alliance Benches may suggest to him that the somewhat softer wording of the amendment which I have withdrawn may be better than the absolute wording of his clause. However, that is something which he can consider in the future.
10.12 p.m
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): My Lords, the Question is that the amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not Content". I think the "Contents" have it. Clear the Bar.
Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Contents have it.
10.15 p.m.
Clause 32 [Scope of Part IV]:
Lord Wigoder Lord Wigoder moved Amendment No. 33:
Page 22, leave out lines 15 and 16 and insert ("not be made unless a draft of it has been laid before Parliament and approved by resolution of each House.")
The noble Lord said: My Lords, I move the amendment on behalf of my noble friend Lord Meston. This is a comparatively short matter. It deals with the question of lenient sentences, on which noble Lords had an interesting debate in Committee. Your Lordships will remember that on that occasion it was proposed that the Attorney-General should make the applications to the Court of Appeal, that he would make only a limited number of applications in the course of a year and that the particular classes of case in which he would make such applications would be severely restricted.
The way in which the Government have sought to go about that is to say in Clause 32(3):
"The Secretary of State may by order made by statutory instrument provide that this section shall apply to any case in which sentence is passed on a person for an offence triable either way of a description specified in the order".
The clause goes on to say that such an order should be subject to annulment in pursuance of a resolution of either House of Parliament. The power is being given to the Secretary of State by statutory instrument to decide to what descriptions of cases the powers of appealing against sentence to the Court of Appeal should relate. That is an important power, which will much affect the operation of the section.
One can well understand the difficulty the Government face in trying to legislate now to prescribe exactly what kind of cases should be the subject of the procedure. The problem with such delegated legislation is always the same; namely, that the Secretary of State has to make an order and the two Houses of Parliament can either accept or reject it; they cannot modify or seek to vary it in any particular. That is exceptionally relevant in a case of this kind where the order will obviously contain what may be a long list of particular types of offence.
To get round the problem—one that arises not only in this Bill—the amendment proposes that first there shall be a draft of the order laid before Parliament to be approved by resolution of each House. In other words, following the procedure used on other occasions—for example, in relation to the Prevention of Terrorism Act—a draft order is laid, a debate takes place, the Minister listens to the debate and examines it afterwards and can vary the final order in

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accordance with the views expressed in the House if he so wishes. One then avoids the House having to come to a decision in the first instance to take or leave the order en bloc. That appears to us on these Benches to be a sensible and helpful proposal. I beg to move.
Lord Elwyn-Jones: My Lords, I support what has been said by the noble Lord. This matter relates to Clause 32, which was a highly contentious part of the Bill. Therefore, from this side of the House, one approaches it with some suspicion. However, we were defeated when the matter came to an issue. It is nevertheless important that action taken under Part IV should receive the maximum consideration possible by both Houses of Parliament.
"A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament".
The amendment proposes that a draft shall be laid before Parliament and approved by resolution of each House.
I am sorry that the noble Lord, Lord Meston, is not here, because he made a very powerful speech recently on the tendency of this Government to legislate by statutory instrument, with the happy consequence, of course, of avoiding the risk of defeat, especially in your Lordships' House. Therefore, if we are going through a regime of important changes introduced in this way by statutory instrument, we should be very watchful indeed to see that, on a matter of any importance, each House, and not just another place, should deal with it. I venture to suggest that the other place will share my view, and it is for those cautionary reasons that I join in supporting the amendment.
Lord Hutchinson of Lullington: My Lords, I too support this amendment. It is a great pity that this debate is taking place at this late hour, because it raises a very important matter of principle. It is a matter which has recently been highlighted in an article in The Times newspaper in which it was suggested that this Government, as a matter of policy, intend to legislate more and more by the use of secondary legislation, thus avoiding, as the noble and learned Lord said, giving the Opposition the opportunity to amend or change in any way what is contained in that secondary legislation. It will be of great help to the House if the Minister is able to say that the suggestion made in that article in The Times is not correct, that there is no such policy decision and that in future there will be a draft laid before Parliament so that the matter can be debated and amendments put down to it.
The Earl of Caithness: My Lords, perhaps I may assure the noble Lord, Lord Wigoder, that the extension of the procedure in Part IV of the Bill to offences other than purely indictable ones is not a step which my right honourable friend the Home Secretary would take lightly. I have, I believe, made it clear in debates on these provisions in your Lordships' House that the new power will be used sparingly. It would be extended only if in the light of experience it proved necessary, desirable and practicable to do so.
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The noble Lord argued that such an extension would nonetheless be a sufficiently serious matter to warrant the high degree of parliamentary scrutiny implied by the affirmative procedure. While I shall, of course, as always pay careful attention to the views of noble Lords, I should have thought that the negative procedure would be suitable in this case. An order made under this clause would not introduce substantial new matter; the principles and procedures to be enacted by Part IV of the Bill have been, and I am sure will continue to be, extensively debated during the Bill's parliamentary passage. An order would simply apply these to additional categories of offence and would in no way vary or derogate from them.
Your Lordships may find it helpful to consider a recent instance in the area of criminal justice where an important and far-reaching order-making power in an Act is subject to the negative procedure. This is the power in Section 22 of the Prosecution of Offences Act 1985 to prescribe custody and overall time limits in criminal proceedings. In that case, as in this, the power itself was subjected to detailed scrutiny during the Bill's passage and, although the provisions themselves were left to be dealt with by subordinate legislation, it was not thought necessary to require an affirmative resolution.
Perhaps I may remind the House that an order which is subject to the negative procedure may be prayed against and may be the subject of a debate in your Lordships' House. I reassure the noble and learned Lord, Lord Elwyn-Jones, that, as the clause indicates, the statutory instrument is annulled if either House so resolves. Therefore, it will come to your Lordships' House. The noble Lord, Lord Hutchinson of Lullington, raised this as a matter of principle. I refer him to Erskine May, and in particular to the second report of the Joint Committee on Delegated Legislation—that is, HL 204 (1972/73). This states that there is no consistent pattern or direct connection between the subject matter of any particular instrument and the procedure to which it may be subjected. Therefore, I believe this is for your Lordships' House to decide depending on the matter before it.
I have heard what has been said tonight. It is right that I should take this matter away for further consideration with my right honourable friend, because, as I have said, your Lordships' views are important to his thinking. With that assurance, but without commitment, as your Lordships will appreciate, the noble Lord may see fit to withdraw his amendment.
Lord Wigoder: My Lords, yes, of course I will. I am obliged to the noble Earl for what he said. I was concerned not so much with the merits of the affirmative procedure as against the negative procedure as with the possibilities of proceeding by way of draft which is amendable in practice, because the Minister was able to listen to the debate before he put the order into its final terms. With those observations, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 34:
Page 22, line 21, at end insert—
("(6) In its application to Northern Ireland, this section shall have effect subject to the modifications set out in subsections (7) to (9).
(7) In this section—
"offence triable only on indictment" means an offence punishable only on conviction on indictment;
"offence triable either way" means an offence punishable on conviction on indictment or on summary conviction.
(8) For subsection (4) there shall be substituted—
"(4) An order under subsection (3) above shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (and not a statutory instrument), and any such statutory rule shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument, and section 5 of the Statutory Instruments Act 1946 shall apply accordingly."
(9) The reference in subsection (5) to Part III of the Mental Health Act 1983 shall be construed as a reference to Part III of the Mental Health (Northern Ireland) Order 1986.").
The noble Earl said: My Lords, I will speak also to Amendments Nos. 37, 39, 135, 138, 139 and 149. These amendments provide for the technical adaptation of the provisions in Part IV of the Bill to enable their direct extension to Northern Ireland. I beg to move.
On Question, amendment agreed to.
Clause 33 [Questions as to sentencing]:
Lord Windlesham Lord Windlesham moved Amendment No. 35:
Page 22, line 24, leave Out from ("lenient") to ("and") in line 26.
The noble Lord said: My Lords, I speak also to Amendment No. 36. These amendments relate to the wording of the substantive new Clause 33, which enables the Attorney-General to refer to the Court of Appeal a sentence passed in the Crown Court which appears to him to be unduly lenient, provided that the Court of Appeal has granted leave.
This is not an attempt to reopen the principle of that controversial clause which was decided, after a Division, in Committee. I took part in that debate, as did others of your Lordships who are present this evening. I referred to the wording of sub-paragraphs (a)(i) and (ii) and, in particular, to the ambiguous reference to the wrong use of sentencing discretion by the trial judge. If your Lordships look at the preliminary words of Clause 33, you will see that it states:
".—(1) If it appears to the Attorney General—
(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient because the judge—

(i) exercised a discretion as to sentence wrongly; or

(ii) erred in law as to his powers of sentencing".

Amendment No. 35 leaves out all words after "lenient" until the word "and" in line 26. I submit that the idea of a judge exercising his discretion wrongly must be open to doubt. Surely it is possible to envisage circumstances in which the judge, having heard all the evidence and having seen the defendant throughout the trial, may exercise his sentencing discretion properly although he arrives at a sentence which is out of line with prevailing levels. Importing moral concepts of right and wrong in this context seems misconceived and could be challenged in the courts. The draftsman may have had in mind, in choosing these words, what is just and what is unjust.
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But the English language allows words different meanings. The words "right" and "wrong" may as easily be taken to mean what is correct or what is incorrect; what is proper and what is improper.
Turning to paragraph (a)(ii), I accept that Clause 33 should specify that if the judge has erred in law as to his powers of sentencing the Attorney-General should have grounds to refer the sentence to the Court of Appeal. If the judge thinks mistakenly, for example, that the maximum sentence for an offence is two years when in fact it is five years, and he sentences a convicted offender to what he believes to be the maximum sentence because of the gravity of the crime, clearly there is a strong case for the Court of Appeal to put the error right.
That is the purpose of Amendment No. 36 because it retains the reference to errors of law, but it rearranges that reference. That provision appears later in the clause. As I explained at the outset in moving this amendment, the words after "lenient" down to "powers of sentencing" in sub-paragraphs (i) and (ii) disappear completely.
The noble and learned Lord the Lord Chief Justice made the case for the omission of these words in subsection (1)(a)(i) and (ii) when he spoke at the Committee stage. He referred to the possibility of misconstruction.
When my noble friend the Minister of State replied to the debate he said that he was prepared without commitment to look again at the argument that had been put to him. I hope that in the intervening period he has had an opportunity to do so.
We should not forget, late as it is this evening, that this clause is an historic change in our criminal law and procedure. It is most important that we should get the wording right.
10.30 p.m.
Lord Ackner: My Lords, I, too, should like to support the amendment. If the words which are sought to be excised are left in, they provide a quite unnecessary hostage to the ingenuity of counsel which, although not unlimited, is still, I am happy to say, extensive. For that reason it would be very desirable to make the matter clear.
The Earl of Caithness: My Lords, as my noble friend has said, these amendments remove from Clause 33 words which troubled the Committee at an earlier stage. The causes for concern were most persuasively expressed by my noble friend and by the noble and learned Lord, Lord Lane. Indeed, my noble friend has been supported by the noble and learned Lord, Lord Ackner, this evening.
I am delighted that I have heard nothing against my noble friend's amendments. They therefore appear to meet with your Lordships' approval and I for one will gladly support them.
On Question, amendment agreed to.
Lord Windlesham Lord Windlesham moved Amendment No. 36:
Page 22, line 35, at end insert—
("(1A) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection

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may be satisfied if it appears to the Attorney General that the judge erred in law as to his powers of sentencing.")
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 37:
Page 23, line 19, at end insert—
("(8) In the application of this section to Northern Ireland—

(a) any reference to the Attorney General shall be construed as a reference to the Attorney General for Northern Ireland;

(b) the references to sections 10 and 35(1) of the Criminal Appeal Act 1968 shall be construed as references to sections 10(2) and 33(1) of the Criminal Appeal (Northern Ireland) Act 1980, respectively.")

On Question, amendment agreed to.
Schedule 3 [Questions as to sentencing—supplementary]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 38:
Page 110, line 12, leave out paragraph 3.
The noble Earl said: My Lords, this amendment responds to points made during the Committee stage by the noble Lords, Lord Wigoder and Lord Harris of Greenwich. Both expressed doubts about whether it was right to give a single judge any role in the procedure in Clause 33 under which the Attorney-General will have the power to refer unduly lenient sentences to the Court of Appeal.
As it stands the Bill allows the possibility that leave to bring such a reference might be granted by the single judge with the full court being involved only if the single judge was minded to refuse leave. Our purpose was to spare additional work for the full court which would obviously have to hear and determine the application itself at a later stage.
We have reflected on the matter in consultation with the noble and learned Lord the Lord Chief Justice. He shares the misgivings expressed by the noble Lords, Lord Wigoder and Lord Harris of Greenwich. On reflection, we also agree, and the effect of the amendment is to remove the power of the single judge to grant leave. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 39:
Page 111, line 22, at end insert—
("14. In the application of this Schedule to Northern Ireland—

(a) paragraph 1 shall be omitted;

(b) any reference to the Attorney General shall be construed as a reference to the Attorney General for Northern Ireland;

(c) any reference (except in paragraph 13) to the registrar of criminal appeals shall be construed as a reference to the Master (Queen's Bench and Appeals);

(d) the reference in paragraph 13 to central funds shall be construed as a reference to money provided by Parliament;

(e) the reference in paragraph 13 to the registrar of criminal appeals shall be construed as a reference to the Master (Taxing Office).")

On Question, amendment agreed to.
The Earl of Arran: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Dyfed Bill [H.L.]
Returned from the Commons earlier this day agreed to with amendments; the amendments considered and agreed to.
House adjourned at twenty-six minutes before eleven o'clock.