Lords Sitting of 22 October 1987

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

Motorway Accidents: Statistics
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what are the figures for the last 12 months of fatal accidents which have occurred on the motorway system, and whether these show an improvement or deterioration in the situation.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, in 1986 there were 5,160 injury accidents on motorways. This was an increase of 11 per cent. on 1985, in line with the increase of 11 per cent. In motorway traffic. The motorway accident rate—that is, the risk which a motorist runs of being involved in an accident while driving on a motorway—has fallen significantly in recent years. Since 1980, motorway traffic has increased by 54 per cent. and motorway accidents have increased by 26 per cent.
Lord Dean of Beswick: My Lords, I am very grateful to the Minister for that reply. As one who uses the M.62 and the M.1 regularly, I have observed that the M.1 in particular seems to have long stretches of contraflow systems. Does the extensive use of the contraflow systems make a contribution to the horrendous fatal accident figures which we have seen lately? If that is so, will the Government consider reviewing the situation to see whether it can be improved?
Lord Brabazon of Tara: My Lords, there is an increased danger where motorway repairs are taking place. In fact, I understand that accidents are twice as likely to happen in such situations. We do our best with regard to contraflow systems to deal with the situation. For instance, we have plans to try moving cones for more minor repairs.
Nevertheless, where major repairs are necessary—and I fear a great many major repairs are necessary on motorways at the moment—it is essential to have contraflow systems. We must attempt to make them as safe as possible. But at the end of the day it is very much up to the individual motorist to be aware of such situations and to take as much care as possible.
Lord Mellish: My Lords, is the Minister aware that some of us who use the motorways frequently believe that the biggest danger on the motorways are the juggernauts? The characters who drive their huge
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lorries in what is supposed to be the fast lane are an absolute menace and they terrify humble motorists. Is it not possible to stop such lorries from travelling in the fast lane?
Lord Brabazon of Tara: My Lords, in the case of three-lane motorways, lorries are not supposed to travel in the fast lane.
Lord Mellish: They should not, but they do!
Lord Brabazon of Tara: My Lords, the police must do their best to make sure that they do not.
Lord Underhill: My Lords, is it not a fact that although the majority of motor accidents take place on roads which are not motorways, those taking place on motorways are more horrendous? Is any research being undertaken by the department or by the TRRL into the cause of accidents, whether they are due to human error, to the motorways themselves, or to wrong use of lanes, and so on? It seems that such evidence is vital.
Lord Brabazon of Tara: My Lords, it is true to say that accidents on motorways are more likely to be serious than those on ordinary roads because of the increased speeds. As regards the research which is being done, I shall have to look into the matter and find out what the TRRL is doing at the moment. Perhaps I may write to the noble Lord on that point.
Lord Boyd-Carpenter: My Lords, arising out of my noble friend's answer to the noble Lord, Lord Mellish, is it not now necessary to take stronger measures to enforce the speed limits both for the juggernauts and for the ordinary motorist'? Is my noble friend aware that those who use the motorways regularly know that the speed limits are regularly exceeded by very large numbers of drivers?
Noble Lords: Hear, hear!
Lord Brabazon of Tara: My Lords, enforcement of speed limits is a matter for the police. It must be obvious that the law cannot be enforced 100 per cent. It is a matter for the police to do the best they can within the resources available to them.
Lord Hailsham of Saint Marylebone: My Lords, is it not also the case that the Magistrates' Association has a tariff of suitable penalties which it recommends to local benches? Is it not important that local benches should pay attention to those recommendations and ensure that excessive speeds are dealt with by suspension of licence?
Lord Brabazon of Tara: My Lords, my noble and learned friend knows much more about that than I do. I am sure that he is right concerning the question of sentencing by magistrates' courts.
Baroness Macleod of Borve: My Lords, returning to the coning off of parts of the motorways, perhaps I may ask my noble friend whether it would be possible to put the signs which appear on the motorways regarding the coning off very much

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higher on the road so that drivers travelling behind big lorries would see the signs, which at present are often not apparent.
Lord Brabazon of Tara: My Lords, I shall take that suggestion away and look at it.
Earl Attlee: My Lords, does the Minister have figures showing how many of the fatal accidents about which he has just told the House were caused by vehicles which were not only travelling too fast but were travelling too close to the vehicle in front?
Lord Brabazon of Tara: My Lords, I hasten to assure the noble Earl that the figures which I have given are not those for fatal accidents. Fortunately, the number of fatal accidents has not been nearly as high as the figures I have mentioned. I do not have with me a better analysis of the figures, if that is available. However, the latest group of road accident figures will be published next week and a copy will be in the Library.
Lord Dean of Beswick: My Lords, perhaps I may finally ask the Minister, on the subject raised by my noble friend Lord Mellish and the noble Lord, Lord Boyd-Carpenter, whether he is aware of the distress caused by the fact that a number of people who pull onto the hard shoulder because of mechanical failure are subsequently killed or maimed. Great distress is caused to the relatives of such people. It appears that the number of such cases is increasing as people who pull off the road in an emergency are often smashed into by juggernauts. Such accidents are totally avoidable. I hope the Minister will say that the Government will keep this kind of accident under review to see whether any improvement can be made in the situation.
Lord Brabazon of Tara: My Lords, I certainly agree with the noble Lord that such accidents are appalling. We shall do all we possibly can to prevent such accidents from happening. However, at the end of the day I must point out that the risk of having an accident on an ordinary road is eight times greater than it is on a motorway. That must be taken into account.

Clydesdale Bank: Acquisition
3.8 p.m.
Lord Williams of Elvel: 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 why the acquisition by an Australian bank of the Clydesdale Bank was not referred to the Monopolies and Mergers Commission.
Lord Beaverbrook: My Lords, my noble friend the Secretary of State for Trade and Industry took the view that this acquisition did not raise competition issues or other issues of public interest such as to warrant a reference. His decision was in accordance with the advice of the Director General of Fair Trading.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord for his response, so far as it goes. Perhaps I may ask him to clarify the statement made by the Governor of the Bank of England to the Northern Ireland Chamber of Commerce to the effect that it runs counter to common sense to argue that the openness of the London market must be carried to the point where control of the core of our financial system may pass into the hands of institutions whose business aims and national interests lie elsewhere. What is meant by the "core"? If the Clydesdale Bank is not part of the core, is the Royal Bank of Scotland part of the core? What are the criteria for determining the core? Who holds the magic card?
Lord Beaverbrook: My Lords, the Governor of the Bank of England, in referring to the core, was, I believe, referring to the very large clearing banks that we have in this country. I think that on scale alone the takeover of the Clydesdale and Northern banks could not be described as a very large transfer of assets.
Lord Taylor of Gryfe: My Lords, can I ask the noble Lord to read the report of Monopolies and Mergers Commission on the proposed takeover of the Royal Bank of Scotland by the Hong Kong and Shanghai Banking Corporation and the Standard Chartered Bank which lays down very firmly that it is not in the public interest for a Scottish banking institution to be owned by a foreign company.
Lord Beaverbrook: My Lords, that is rather wide of the Question on the Order Paper. I do not wish to comment on other individual situations. As regards the regional aspect, my noble friend the Secretary of State takes into account all relevant considerations and not just regional ones. The guiding principle should be that the Government intervene in merger cases only where there is likely to be a divergence of interest between the decision-makers in the market and the public interest.
Lord Grimond: My Lords, it must come as a surprise to many people (must it not?) to hear that the Clydesdale Bank is not part of the core of the banking system. Be that as it may, is it not the fact that the Clydesdale Bank is already a wholly-owned subsidiary of the Midland Bank? It may be that the new arrangements will lead to greater freedom for the Clydesdale Bank and indeed prove beneficial. Will the Minister give an undertaking that this is not to be used as a precedent for failing to refer future bids for Scottish banks, particularly independent Scottish banks, to the Monopolies and Mergers Commission?
Lord Beaverbrook: My Lords, in deciding not to refer this proposal, my noble friend the Secretary of State made it clear that the decision related only to the circumstances of the particular case and should not be interpreted as necessarily indicating his likely attitude to any further proposed acquisition of a clearing bank by a foreign company. Any such case will be considered on its own merits.
On the question of the regions, we are not convinced that mergers affecting a particular part of the UK deserve special treatment on that account alone.
Lord Williams of Elvel: My Lords, would the noble Lord accept that he has not really clarified the position as regards major banks? Would he accept that I intend to return to this at a later stage, probably in the form of an Unstarred Question which is perhaps more suitable?
Lord Beaverbrook: My Lords, that is of course a matter for the noble Lord. I shall be pleased to answer any Question he might put down.
Baroness Seear: My Lords, would the noble Lord inform his colleague the Secretary of State that we much regret his absence when a matter of such importance is being discussed?
Lord Mackie of Benshie: My Lords, was the noble Lord referring to Scotland as a region.
Lord Beaverbrook: My Lords, I was talking about regional policy. I was not referring to Scotland specifically as a region.
Lord Ross of Marnock: My Lords, is it not rather out of place to refer to Scotland at all in this respect? Has not the Clydesdale Bank already been taken over by the Midland Bank?
Lord Beaverbrook: My Lords, I think I should clarify that I actually referred to a particular part of the United Kingdom rather than just a region.

Airline Cartels: EC Action
3.14 p.m.
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement on the action taken by the European Commission in its attack on air cartels, and on the present position concerning the request made by the Commission to the 10 airlines involved that they submit, by 14th September, further information on how they plan to change their agreements where necessary.
Lord Brabazon of Tara: My Lords, I understand that all 10 airlines involved have now responded and that the Commission is now considering what further action to take. This is of course a matter for the Commission. But I can say that the Commission, like the British Government, puts its top priority on securing adoption by the Council of Ministers of the aviation liberalisation package and sees its action with the airlines as supporting that objective.
Baroness Burton of Coventry: My Lords, while it is not the fault of the Minister, is he aware that I shall believe that real action has taken place on the European front when I see it, especially as some two years ago, on 21st November 1985, the Government informed this House that their patience on this matter would run out by the end of 1986. In view of
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this interminable delay, which really does seem to be never-ending, might I ask the Minister whether we can take it that the Government are giving every support to British Airways in the unilateral action it is now proposing to take in the hope of making some progress in this matter?
Lord Brabazon of Tara: My Lords, I can assure the noble Baroness that I am just as frustrated with the lack of progress as she is. The Government welcome the initiative of British Airways as a useful step towards a more competitive environment. We do not believe it will impact directly on the consumer at least in the short term. An airline's ability to offer cheaper fares depends upon the relaxation of the regulatory controls. Hence the most important thing is to get the aviation package back on the Council agenda as soon as possible and get it agreed.
Baroness Burton of Coventry:My Lords, might I reply to that and the matter of the short-term benefits which the Minister raised? Is he aware that British Airways, by ending the commercial agreements that it has with 11 other European airlines by the end of March, will be able to do away with what I would call the iniquitous pooling arrangements which subsidise inefficient airlines and give customers no choice?
Lord Brabazon of Tara: My Lords, that is indeed true. However, we still will not get as far as the other measures we want within Europe—that is, multiple designation and lower air fares—but it is definitely a step in the right direction.
Baroness Burton of Coventry: My Lords, is the Minister aware that I should be glad if we got somewhere on one matter, never mind several?
Lord Underhill: My Lords, may I raise in this connection a somewhat different matter and the Minister will tell me if I am wrong? In the event of a liberalisation agreement being reached, will this mean increased flights possibly to the United Kingdom? Is the Minister aware of a statement made by the chairman of the Civil Aviation Authority as recently as 14th October that a strict limit on flights throughout Britain has been threatened by the CAA? The chairman went on to say that ultimately the volume will have to be capped. He said that there may have to be the use of alternative airports, including Manchester and Birmingham. Is this likely to be the effect if liberalisation takes place on the scale which is envisaged?
Lord Brabazon of Tara: My Lords, that is a little far from the Question. There is undoubtedly a capacity problem in the South-East of England. If liberalisation takes place there probably will be more flights. Whether they will all be at peak hours, for instance, one cannot tell. At the moment of course there is in any case a terrific expansion of flights from regional airports such as Manchester and Birmingham, both of which I managed to visit during the recess. Both airports are showing a very positive increase in activity at the moment.

Storm Damage to Woodlands
3.17 p.m.
Lord Chelwood: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how long they expect the Forestry Commission to take to assess the storm damage to their own and to private dedicated woodlands; and whether they will then consider a scheme for the purchase of fallen timber for domestic consumption or export.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, perhaps I may immediately offer sympathy to those who have suffered loss as a result of the recent storm.
The immediate efforts of Forestry Commission staff are being devoted to emergency action to clear roads and forest accesses and to assist in the restoration of essential services. The commission will he arranging for the aerial surveying of forests, both its own and privately owned, in order to arrive at an assessment of the extent of the damage. The spread of the damage is such, however, that it is likely to be several weeks before a full picture of the damage emerges. Experience of major storm damage of this kind in the past has shown that it has been possible, over a period of time, to market the timber in an orderly fashion. We will of course give consideration to the best ways in which we might assist woodland owners.
Lord Chelwood: My Lords, I think it would be right for me to declare an interest in this matter in so far as I own about 100 acres of woodland in Sussex which caught the full blast of the hurricane. May I thank my noble friend very much indeed for that somewhat reassuring reply? If the Government's view proves over-optimistic about the disposal of fallen timber and the market is unable to absorb it, will my noble friend at any rate say that they will not rule out the suggestion made in the last two lines of my Question? May I also ask my noble friend whether there is further action which the Government are contemplating?
Baroness Trumpington: My Lords, my noble friend Lord Belstead yesterday referred to the setting up of a forest windblow action group. This has three main aims: to co-ordinate the assessment of the scale of woodland damage; to advise woodland owners on marketing strategy and the timescale for dealing with blown timber; and to provide information on harvesting resources and marketing opportunities. Both the British Timber Merchants Association and Timber Growers UK will be represented on the group.
Lord Molloy: My Lords, may I ask the Minister, in addition to what she has already said, whether it would be possible for the Government to have discussions with Kew Gardens and similar institutions which have suffered dramatically because of the storm to ascertain in which way they may be helped to recover some of the treasures which they feel are now in danger?
Baroness Trumpington: My Lords, I had the great good fortune to visit Kew yesterday. The time for tears among the staff is over and I found a most encouraging and exhilarating atmosphere in getting on with the job of returning Kew to as normal a condition as possible. Due to the amount of seedling banks and its programmes for the future, Kew will he able to replace the trees, although not the historical associations of many trees. I should like to add that when casual visitors—not the professionals, who know and who have loved these trees—visit Kew in, I hope, the near future, they will find the gardens as beautiful as ever.
Lord Molloy: My Lords, I congratulate the noble Baroness on what she has proposed.
Lord Elton: My Lords, is my noble friend aware that those of us who have already looked at some of the Royal Parks and palace property are much impressed by the way the staffs have tackled the job and wish them every success in the formidable task facing them?
Baroness Trumpington: My Lords, I thank my noble friend for his remarks. I hope that various publications will pick up the comments so that those who have been working so hard can read them.
Lord John-Mackie: My Lords, with respect to the noble Lord's Question, I think that the Forestry Commission has the business in hand fairly well, although it is worth reminding the commission that we expect it to do its best.
Noble Lords: Question!
Lord John-Mackie: My Lords, is the noble Baroness aware that it is single trees in gardens here and there that are likely to be sold too cheaply? The price of wood today, particularly firewood, is very good. Owners should not be taken in by cowboys. We need publicity in that respect too.
Is the noble Baroness further aware that it would be wise for many people to read a letter published in the Independent yesterday from Sir William Gladstone of Fasque in that region called Scotland. He points out that in the 1703 gale his ancestors winched the trees upright again and they lasted for 100 years?
A noble Lord: He was very lucky, my Lords.
Baroness Trumpington: My Lords, on the first part of the noble Lord's question, I understand that there should be no great difficulty for those people wishing to sell conifers. It is of course most unusual for such quantities of broad leaved trees to be available. Recognising this fact and the extent of the damage to broad leaved woodlands, the action group set up by the Forestry Commission will be making a special effort to identify markets, including export markets, and I urge people not to panic and accept the first offer that is made. Thereby they will avoid the cowboys. I totally accept what the noble Lord says.
Lord Mackie of Benshie:My Lords—
The Earl of Onslow: My Lords, I do not wish to intervene between two brothers, but I also have an interest to declare. Where I live was in the eye of the hurricane and I have an avenue of trees that have been blown absolutely flat. Is there any help for what are basically privately owned parkland trees which were occupying space of, I suspect, no economic value whatever but were of aesthetic value to everyone? The trees are of no great timber value because they have branched out and are merely beautiful trees. They are difficult to sell and will be extremely expensive to remove. Is my noble friend equally aware that it will take a great deal longer than six months to put matters right and that we are talking about a minimum five-year clearing up and planting period?
Baroness Trumpington: My Lords, I realise that there will be a time-lag in getting total replanting completed. On the first part of my noble friend's question, the position is a little difficult, but as regards trees in urban areas the Forestry Commission is co-operating closely with the Countryside Commission and will be helping out with technical advice and instruction. In regard to parkland trees, not heavily wooded areas, I suggest that trees have fallen down in storms in the past and people have had to cope and have made arrangements accordingly.
Lord Mackie of Benshie: My Lords, is the noble Baroness aware that she has not answered the Question put by the noble Lord, Lord Chelwood? Are the Government prepared to take further measures to help the commercial woodlands? My recollection is that in the 1953 gale in Aberdeenshire in the North-East of Scotland, the only storm equivalent to this, the Government contributed to the disaster fund. No amount of marketing advice will help or make up for the loss suffered by owners of commercial woodlands which have been blown down or where the tops have been blown off trees. In the case of a disaster of this sort it is normal for the Government to help private commercial ventures which have suffered loss through no fault of their own.
Baroness Trumpington: My Lords, there is no regular precedent for special assistance for major storm damage. It is early days and the first priority is to establish the scale and nature of the damage. We shall then consider the best ways in which we might assist woodland owners. However, parallels cannot necessarily be drawn with the past. We gave some special compensation in 1985 but that was a totally different matter and nothing to do with woodlands. It concerned livestock following a bad summer and prolonged difficulties with winter feed as a result. There is no regular pattern which one can establish.
Baroness Robson of Kiddington: My Lords, does not the Minister agree that the question put by the noble Lord, Lord John-Mackie, is appropriate? In her reply she said that she hoped the owners of private property would not sell to the first cowboy that comes along. Only this morning I heard of a
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private property owner who had an enormous walnut tree come down. The cowboys arrived and the tree has been cut up. That is an enormous loss not only to the owner but to the nation. We do not grow many walnut trees. I hope that the Minister will agree to use radio and television to warn private property owners against the cowboys.
Baroness Trumpington: My Lords, I am grateful to the noble Baroness for her remarks. Perhaps I should also have declared an interest. I lost my apple tree, which means that I can no longer pretend to be Eve but I can still claim to be Adam's mother.

Business
3.28 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is being made in another place on the Commonwealth Heads of Government meeting in Vancouver.
It may be for the convenience of the House if I announce that the Committee stage of the Criminal Justice Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the European Communities (Definition of Treaties) (International Convention on the Harmonised Commodity and Description and Coding System) Order 1987 will be taken.

Business of the House
The Lord President of the Council (Viscount Whitelaw): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the debates on the Motions in the names of the Lord Lovell-Davis and the Lord Carter set down for 28th October shall each be limited to 2 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to each debate.—(Viscount Whitelaw.)
On Question, Motion agreed to.

House of Lords' Offices
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the Second Report from the Select Committee on House of Lords' Offices be agreed to.
I should draw your Lordships' attention to one item in this report. I refer to the first item under the heading "Cancer Screening". Your Lordships may recall that in April the noble Baroness, Lady Ewart-Biggs, tabled a Starred Question in which she asked whether it would be possible to provide cervical and breast screening facilities for House of Lords' staff by means of a mobile unit run by the Women's National Cancer Control Campaign.
That proposal was examined by the Administration Sub-Committee and a proposal has now been made which has been endorsed by the

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Offices Committee. A mobile unit will be available from 17th to 19th November in Black Rod's garden. This is an experiment, and it will of course be very carefully monitored. We have already circularised all female staff in the House of Lords. There has been a very satisfactory response. Over 50 per cent. have responded positively.
Moved, That the Second Report from the Select Committee be agreed to.—(The Chairman of Committees.)
On Question, Motion agreed to.
The Report was as follows:
1. CANCER SCREENING
The Committee agreed a recommendation from the Administration Sub-Committee that on-site cancer screening facilities for women should be provided on an experimental basis and authorised provision for the cost of the experiment.
2. HISTORICAL RECORDS
The Committee were informed that certain historical manuscripts belonging to the late Lord Braye had been made available to the House and gave authority for their purchase.
3. LIBRARY
A Report from the Library Sub-Committee for 1986 was laid before the Committee.
4. COMPUTER DEVELOPMENTS
The Committee agreed a recommendation that the House of Lords should meet additional staffing cost arising from the House of Commons (POLLS) computer project and also authorised provision for a new computer cataloguing system (SWALCAP) in the House of Lords' Library.
5. REFRESHMENT DEPARTMENT
The Committee approved a statement of Accounts for the financial year 1986–87.
6. STAFF OF THE HOUSE
The Committee considered further proposals arising out of the staff inspection and agreed:

(a) the regrading of the post of Examiner of Acts and the temporary upgrading of one executive officer post in the Accountant's office to higher executive officer;

(b) the creation of a new grade of senior officer;

(c) a reduction of one post in the complement of personal secretaries; and

(d) revised scales of pay for certain secretarial grades.

The Committee also approved the payment of a revised allowance to the Staff Superintendent for duties at weekends and on public holidays and an increase in the payments made to doorkeepers for night duties.
7. PARLIAMENT OFFICE
The Committee agreed to the employment of an additional clerk in the period up to Easter 1988.
8. BLACK ROD'S DEPARTMENT
The Committee sanctioned the temporary employment of an additional Attendant during periods of prolonged absences of permanent staff.
9. INTERNAL AUDIT
The Committee agreed to an extension of service for the Internal Auditor.
10. REVISED SCALES OF PAY AND ALLOWANCES
The Committee confirmed the application to staff of the House of Lords of the following Civil Service memoranda:

CM/793—Pay of cleaners and office keepers

CM/794—Pay of museum grades and catering managers

CM/795—Pay of higher grades

CM/798 Pay of administration grades up to chief clerk

CM/800 Pay of administration grades up to chief clerk

GM/401—Fees to academic consultants;

and authorised a consequential revision in the night duty allowances payable to administrative staff.
11. UNIFORM ALLOWANCES
The Committee authorised an increase in the allowances paid to Clerks at the Table, the Gentleman Usher and Yeoman Usher of the Black Rod, and Doorkeepers for the purchase and maintainance of dress clothes.
12. SUPERANNUATION
The Committee were notified of the following awards made under the House of Lords Staff Pension Scheme:

(a)Revised pension and lump sum to Mr. W. Frensham, Deputy Editor, who retired on 13th September 1986;

(b)Revised pension and lump sum to Mrs. B. M. McCullagh, Cleaner, who retired on 19th April 1987;

(c)Revised pension and lump sum to Mrs. J. L. Saxton, Cleaner, who retired on 14th April 1987;

(d)Revised pension and lump sum to Mr. M. T. Nevin, Attendant, who retired on 10th April 1986;

(e)Lump sum death benefit to personal representative of the late P. M. Byrne, former Assistant Editor, who died on 4th November 1986;

(f)Revised lump sum death benefit and pension to widow of the late C. F. Fowler, former Doorkeeper, who died on 8th December 1986;

(g)Short service payment to Miss A. V. Cook, Personal Secretary, who resigned on 30th April 1987.

Private Bill Procedure: Select Committee
Viscount Whitelaw: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Commons message of 21st October be now considered and that a Select Committee of seven Lords be appointed to join with the Committee appointed by the Commons to examine the processes of enacting private legislation and to consider whether:

(a) there are any matters of a kind at present dealt with by Private Bill which could more appropriately be dealt with some other way, taking account of the interests both of promoters and other affected parties;

(b) any changes are desirable in Private Bill procedure; and

(c) any amendments are desirable to the Private Legislation Procedure (Scotland) Act 1936 and the procedure there under;

and to consider whether any amendments are desirable to the Statutory Orders (Special Procedure) Act 1945.—(Viscount Whitelaw.)
On Question, Motion agreed to.

Coroners Bill [H.L.]
The Lord Chancellor (Lord Havers): My Lords, I beg to move that the Bill be now read a second time.
This Bill seeks to consolidate the Coroners Acts 1887 to 1980 and certain related enactments. In order to produce a satisfactory consolidation it includes certain amendments to give effect to two recommendations of the Law Commission which serve to resolve a possible ambiguity. The Home Office and the Coroners' Society of England and Wales were consulted in connection with both recommendations and the Coroner of the Queen's Household in connection with the second. There is no outstanding objection to either recommendation. It is a useful consolidation and will result in the repeal of eight Acts in whole together with 12 more in part.

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I am sure that all your Lordships will join me in once again thanking the Law Commission for its valuable work on this and other consolidations. If your Lordships give this Bill a Second Reading it will be referred in the usual way to the Joint Committee on Consolidation Bills.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
Lord Mishcon: My Lords, I should only like to add to what the noble and learned Lord has said by agreeing that this is a useful consolidation and paying a tribute to, apart from the Law Commission—because I now suitably can as I am no longer a member of the committee—the arduous work done by the committee of both Houses dealing with the consolidation of Bills. It is an arduous but so worthwhile task. I think that the chairman and members of that committee who represent your Lordships' House ought indeed to be thanked.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Commonwealth Heads of Government Meeting
3.33 p.m.
Viscount Whitelaw: My Lords, with the leave of the House, I should now like to repeat the Statement on the Commonwealth Heads of Government meeting in Vancouver being made by my right honourable friend the Prime Minister in another place.
"With permission, I shall make a Statement about the Commonwealth Heads of Government Meeting in Vancouver which I attended accompanied by my right honourable and learned friend the Foreign and Commonwealth Secretary. Texts of the statements issued at the meeting have been placed in the Library of the House.
"The discussions covered two main issues: Fiji and South Africa. The resignation of the Governor-General of Fiji was announced during the meeting. Heads of Government agreed a statement in which they acknowledged that, by Commonwealth convention, Fiji's membership of the Commonwealth lapsed with the emergence of a republic. They went on to express their sadness at developments there and to call for a resolution by the people of Fiji themselves of the island's problems. They offered the Commonwealth's good offices towards such a resolution. They made clear that they would be willing to consider an application from the Republic of Fiji to renew its membership of the Commonwealth if circumstances so warrant.
"In my speech at the opening ceremony of the meeting, I had set out our belief that the Commonwealth should not turn its back on Fiji in its moment of greatest need. We worked hard at the meeting to find a way to keep open the option of Commonwealth membership for Fiji. The outcome is therefore a satisfactory one. I hope that acceptable arrangements will be found in Fiji
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which preserve that country's tradition of democracy and enable it to make a successful application for renewed Commonwealth membership in due course.
"Heads of Government also agreed a statement on South Africa. This reiterated the Commonwealth's determination to work for the total elimination of apartheid and confirmed our commitment to see this goal achieved by negotiation against the background of a suspension of violence on all sides.
"Most Heads of Government repeated their support for sanctions against South Africa and agreed a number of procedural steps, including a study to examine South Africa's relationship with the international financial system and the establishment of a committee of Foreign Ministers. However, no specific additional measures or sanctions against South Africa were adopted. The statement also underlined the importance of continued aid to black South Africans, as well as to the front line states in order to reduce the latter's dependence upon South Africa. In both these respects Britain's record is outstanding.
"The statement represents no significant change from the position reached at the Commonwealth meetings in Nassau in 1985 and in London last year, although there is a growing realisation on the part of many Commonwealth countries, first, that the change in South Africa will be a slow and long-drawn out process and, secondly, that the momentum for change must come from within South Africa itself.
"Britain for its part has faithfully implemented the limited measures to which we agreed at earlier meetings as a signal to South Africa. We shall continue to do so. But where we disagree with other Commonwealth Governments is on the most effective means to get rid of apartheid. We believe that sanctions only harden attitudes, as the recent elections in South Africa have shown. Moreover, so far as they do have an effect, the first to suffer are the black people of South Africa, whose jobs and livelihoods would be put at risk, without any social security to fall back upon. They would also be very damaging to the front line states, which have themselves come to understand more fully the difficulty of applying sanctions.
"I would draw the House's attention to three further matters discussed at the meeting. First, as regards trade, Heads of Government put their names to an important pledge to promote the liberalisation of trade. The unanimous support by all members of the Commonwealth, both developed and developing countries, for a strong and effective GATT and a positive outcome to the Uruguay round should significantly enhance the prospects for those negotiations.
"Secondly, we discussed the special problems of the poorest and most heavily indebted countries primarily in Sub-Saharan Africa. The Commonwealth has declared itself firmly in support of the Chancellor of the Exchequer's initiative to help relieve the burden of debt in these countries.

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"Thirdly, the Commonwealth has decided to embark upon an imaginative and valuable project to help meet the educational needs of member countries. We agreed to create a Commonwealth institution to promote co-operation in distance education. There is much detailed work still to be done, but we in Britain have much to contribute with our experience of the Open University and the Open College.
"It was agreed that the next meeting will be in Kuala Lumpur in 1989.
"I am grateful to the Canadian Government and particularly to Prime Minister Mulroney, who chaired the meeting, for the useful and productive work which was done. The Commonwealth tolerates many points of view. The genuine differences within it over the best way to help get rid of apartheid should not obscure the very valuable contribution which the organisation continues to make to the well-being of its members".
My Lords, that concludes the Statement.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Viscount for repeating the Statement. Perhaps I may deal with the South African aspect first. In spite of the vagueness of the Statement—and we have heard all these argument before—no one can pretend that the Vancouver conference was other than humiliating for Britain. When 44 nations with whom we have the closest connections take one clear view on the central item on the agenda and we alone take a different stance, then something is seriously wrong.
We on this side of the House have made our position on sanctions against South Africa clear on several occasions. Indeed, the Prime Minister and the Government have repeatedly said that they oppose apartheid; and we accept what they say. But I am sorry to have to say again that I find the Government's stance in Vancouver deplorable. It is not true that this Government oppose sanctions in principle as they seem to imply in the Statement. Sanctions against Poland or the Soviet Union are acceptable, and we supported the Government in that regard. Indeed, very limited sanctions against South Africa were thought right in Nassau and they were on the subject of Krugerrands, as the noble Viscount will remember. It is strong, effective sanctions against Pretoria which seem to be anathema to the Prime Minister. If she carries on like this for another four years there may well be no Commonwealth left, or there may be a Commonwealth without Britain. That is the danger of a persistent policy of this nature.
Again, if we consider the Statement carefully, and alongside what Mr. Mulroney said—the Prime Minister of Canada who is friendly towards this Government in Britain—we see a different picture. It is a picture that does not come out in the Statement at all. Let me refer the House to what was reported in The Times newspaper. He said:
"almost unanimously"—
I repeat, "almost unanimously"—
"we came to the conclusion that sanctions do work, that they shall continue to be applied and that they must be applied more extensively.
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That is the message which, with the exception of Great Britain, we send out from Vancouver."
How does the noble Viscount reconcile the words of the Prime Minister of Canada with the words of this Statement? Does he not agree that there was a serious and fundamental disagreement in Vancouver and that we stood alone against our 44 partners of the Commonwealth? I should be grateful if he would reply clearly on that point because it certainly does not come out in the Statement.
Furthermore, a decision was taken again by 44 votes to one to set up a committee of foreign ministers to consider measures against apartheid. May I ask the noble Viscount to plead with the Prime Minister to reconsider the decision not to be a member of that committee? Should we not be represented on it? Would he please ask his right honourable friend to think again because it is a very serious matter that all the countries of the Commonwealth are represented on a committee and that we decide to opt out on a matter which the Government themselves have said that they oppose; namely, apartheid. Surely it is reasonable that we should keep in the closest touch with our Commonwealth colleagues if, as the Government have stated, they are against apartheid. Will the noble Viscount today confirm the Government's continuing opposition to apartheid and the desirability of continuing to talk to Commonwealth governments about the problem? That is absolutely vital if the Commonwealth is to be preserved.
It is proper that I should very briefly welcome some other matters which were agreed in Vancouver: for example, the declaration of world trade mentioned in the Statement; the statement about the further remarks about the third world; the references to the continuing intransigence of South Africa in relation to Namibia; and of course the Fijian crisis which is mentioned fairly extensively. These are matters which we hope we can debate in the House in the course of this Session.
I noted the Prime Minister's remarks about Fiji but there is one specific question that I should like to ask the Leader of the House to clarify; namely, whether Her Majesty's Government intend to pursue any specific policies towards Fiji apart from the generalisations in the Statement itself. For example, do we propose to continue trade relations as before with Fiji now that Fiji is no longer in the Commonwealth and is indeed a republic and a military dictatorship? Can we say what diplomatic relations we are proposing to establish with that new regime?
Baroness Seear: My Lords, we on these Benches also wish to thank the noble Lord the Leader of the House for repeating the Statement. There are certain aspects of the Statement with which we concur, for instance, the general approach towards Fiji in that there is a desire ultimately, when it has returned to democracy, that Fiji should be brought back into the Commonwealth. We should also like to applaud the Government's continuing determination to fight protectionism, which comes out in the Statement, and to support a further satisfactory GATT round at Uruguay.

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Having said that, it is very difficult to find anything else in the Statement to which we can give our support. In particular, as the noble Lord, Lord Cledwyn, has always said, the central issue here was undoubtedly the issue of sanctions. We on these Benches understand the complexities of the sanctions issue but surely it is totally deplorable that the message which must have gone out to the whole of the world—to the Commonwealth, the black African countries and indeed to the South African republic—is that the United Kingdom is not at one with the members of the Commonwealth; that it is to all intents and purposes repudiating the policy of sanctions. After all, we sent out the Eminent Persons Group. The Prime Minister supported the Eminent Persons Group and the eminent persons took the line that there was room for further extension of sanctions which could bring about some improvement in the apartheid position.
Moreover, the whole issue of sanctions has a symbolic importance as a sign to those who are fighting to get rid of apartheid that the world outside is supporting their battles. The attitude taken up by the United Kingdom must give the contrary sign: that we are not beside those who are trying to oppose apartheid. Even if we are, the signal given—the symbolic effect of the attitude taken up in Vancouver—must be very hostile indeed and most discouraging to people who are in the front line of that battle.
We on these Benches, as I think do most people in your Lordships' House, value the Commonwealth very highly indeed. Again, as an exercise in consolidating the valuable institution of the Commonwealth, it is surely sad, indeed deplorable, that Britain should stand there alienated not only from the new Commonwealth countries, the African countries, but also from the countries of the old Commonwealth which have given us the greatest possible support in the past—countries such as Canada, New Zealand and Australia. We can only deplore the handling of the conference.
3.45 p.m.
Viscount Whitelaw: My Lords, I am grateful to the noble Lord, Lord Cledwyn, and the noble Baroness, Lady Seear, for their response to the Statement. Just as they have done perhaps I should concentrate first on the central issue of sanctions for South Africa. The noble Lord, Lord Cledwyn, said that the conference was humiliating for Britain. He found the Government's attitude deplorable. On many occasions I find myself in agreement with the noble Lord, Lord Cledwyn, but he will not be surprised to learn that I do not agree with him on either of these points. I do not consider that it is humiliating to stand up for what you believe to be right. After all, all the other countries of the Commonwealth stand up for what they believe to be right and they are very forceful in making statements on their points of view. If they are prepared to do that, surely Britain is entitled to do it too.
On the same point, the noble Baroness said that the future of the Commonwealth is very important. Indeed, it is. I totally accept what she said, but surely
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it is true that the Commonwealth would not have its importance, nor with its very diverse nature all over the world would it have its influence, if it did not tolerate many different points of view. The idea that the Commonwealth has to have one point of view on issues—this is well known to many of your Lordships—would be totally impossible to live with over a long period of time because there are bound to be many different points of view. So I do not accept either of those points.
Furthermore, the Government agreed to the limited sanctions that were agreed at Nassau. I accept that they were limited. If I may say so, the Government have faithfully implemented sanctions with which they agreed, which is another important point. It is no use agreeing with this sort of thing unless you are prepared to implement it. On this occasion, though I understand that strong views were taken about effective sanctions, there were actually no measures put forward as to what those effective sanctions would be or indeed how they would be effective.
I say to the noble Baroness, Lady Seear, yes, by all means it is important to have the sanctions. I am not so sure about the symbolic importance. If the sanctions do not seem to have any effect in helping the people they are designed to help in South Africa, how come that they can really be found to have been of great importance or of symbolic importance? The horrid and nasty truth is that they have not done anything to get rid of apartheid, which the British Government make abundantly clear they are opposed to, which they have always been opposed to and which they are well known to be opposed to. We want to take measures which will end apartheid.
We have no knowledge of the fact that sanctions are doing anything towards ending apartheid in South Africa in the present circumstances, and the evidence is there to be seen. Indeed, the evidence is there also from the fact that the front line states themselves admit perfectly freely that they are not in a position to impose effective sanctions, so one has to take that into account as well.
The noble Lord, Lord Cledwyn, raised two points. I have already reiterated the Government's firm opposition to apartheid. Will the Government talk to the other Commonwealth countries? Most certainly; of course they will. Indeed, it would be very strange if they did not, because the Government have offered aid and are keen to give further aid to the front line states and have said so. The Government have a good record of aid to many of those countries and they will talk to them if they are to continue the aid, which they most certainly are. Of course the Government will continue to talk to those countries. Many of the countries concerned who appreciate the aid given to them by Britain will be only too keen, and properly keen, to talk to this country in the future. I give the noble Lord that assurance absolutely.
I am grateful to the noble Baroness for what she said about Fiji. The noble Lord, Lord Cledwyn, raised two points on this matter. My right honourable friend the Prime Minister has made it perfectly clear that we are most anxious to see Fiji make arrangements herself through her citizens which will enable her to have a democratic

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government and to be able to apply to return to the Commonwealth. We should like to assist them in that process in any way that we can.
We believe that British interests and our ability to influence developments in Fiji can better be maintained by keeping our representative on the spot than by withdrawing him. Our mission in Suva will continue to conduct business with the regime as necessary. I think that was the point which the noble Lord, Lord Cledwyn, raised with me.
I hope I have answered the points put to me by the noble Lord and by the noble Baroness. I simply reiterate once again, because it is of great importance and must be said consistently and is said consistently, that this Government abhor apartheid in South Africa. We shall certainly stand against it and do everything we believe to be right and sensible to help to end it. However, we must take account of the fact that sanctions have not been effective and that many of the white people in South Africa who are most anxious to see the end of apartheid are the very people who say that the sanctions have not had the effect which many other people would like to believe they have had.
Lord Bottomley: My Lords, is it not regrettable that for the first time ever the United Kingdom finds itself in isolation in the Commonwealth of Nations? What steps will the Government take to make sure that that situation does not continue?
Viscount Whitelaw: My Lords, in answer to the noble Lord, whose knowledge, experience and work in these areas I fully appreciate and admire, surely it is better, if it is on a matter of principle in which you believe strongly, to be isolated rather than pretend to go along with something in which you do not believe. If the British Government do not believe that sanctions would be effective in the ending of apartheid I believe it is better for the health of the Commonwealth if they honestly say so. Surely it is equally true that many of the other Commonwealth countries are not slow to make all sorts of statements by which in many cases they distance themselves from other members of the Commonwealth and are happy to do so.
If we feel that we could not go along with this, surely it is right and proper to stand up and be counted for what we believe to be right, bearing in mind that the main objective of getting rid of apartheid is something to which the whole Commonwealth subscribes.
Lord Mackie of Benshie: My Lords, I agree with the noble Viscount that the majority is not always right. Is not the central issue here the fact that the Prime Minister has been totally unable to convince our friends in the Commonwealth of the sincerity of the opposition of this Government to apartheid? Is not the central point the failure to convince the Commonwealth of the sincerity of the Government's opposition?
Viscount Whitelaw: My Lords, I note what the noble Lord says about the merits and demerits of majorities and the rest. Having been many times in
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minorities and majorities, sometimes in all sorts of different cases, I fully accept that both have their uses and their positions. In regard to what the noble Lord said about failing to convince the Commonwealth of our sincerity, I should have thought that my right honourable friend the Prime Minister did far more to convince them of our sincerity by standing up and saying what we believe to be right and the way in which we believed it was proper to go forward.
Lord Renton: My Lords, I am sure that your Lordships welcome my noble friend's statement that further thought will be given to finding a better solution for the constitutional problem in Fiji. In giving attention to this matter, will Her Majesty's Government bear in mind that there is in Fiji an indigenous people with a tradition and culture of their own and that it would be quite wrong, merely in the name of democracy, to find this indigenous community losing its identity and its place in its own country?
Viscount Whitelaw: My Lords, perhaps it is best, in answer to my noble friend, to confine oneself to saying that we are all most anxious to make sure that the peoples in that community, which we have all known in the past, should be able to get on together and should be able to resolve their problems. The Government will do everything that they can to help them.
Lord Hatch of Lusby: My Lords, the noble Viscount said in answer to my noble friend Lord Cledwyn that he hoped he had answered all the points. He has not. Can he tell the House whether the Government are opposed in principle to sanctions as a means of international coercion? If so, why is South Africa to be treated differently from Poland, the Soviet Union, Iran and Libya in the eyes of this Government? Is he not a little jejune in telling the House that sanctions have not worked when we warned him after the Nassau conference and after the Commonwealth conference in London a year ago that the minimal sanctions that the Government were prepared to apply would not work because they were minimal? Is this not a circular argument? They will only apply minimal sanctions; then, when these do not work, they say that sanctions do not work. The Government have never supported the majority view in the Commonwealth that to work, sanctions should be maximum, not minimal.
Nor has the noble Viscount answered the question put by the noble Baroness, Lady Seear. Do the Government now repudiate the findings of the Eminent Persons Group on which the British representative was the noble Lord, Lord Barber, of his own party, who spoke in the House on this subject? The Eminent Persons Group came to the conclusion that nothing short of increased sanctions could lead the South African Government away from the path of apartheid.
Viscount Whitelaw: My Lords, I do not think that I would ever be so unwise as to say in your Lordships' House at any moment that I had answered all the points. If I used those words it was very

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uncharacteristic of me and very unwise in front of the noble Lord of all people. I do not think for one moment that I did say that I had answered them all. I had tried to answer them all; but trying is different from succeeding.
The Government did go along with the Nassau sanctions as a limited signal to South Africa. We set out our position perfectly clearly in doing so. Therefore, the answer to the first point the noble Lord makes is that if you agree to go along with limited sanctions you cannot be opposed in principle to sanctions of any sort or kind. I think that is perfectly fair. Then the noble Lord asked whether we repudiate what the Eminent Persons Group said. One must come back to the point to which the noble Lord does not address himself. If you are going to have these effective sanctions, how is it that they are not actually enforced? The people who say they want them did not come forward with any particular proposals as to what they were going to be. Many of those who would wish to see effective sanctions admit that they could not possibly undertake them themselves. Those are questions which anyone who addresses this problem simply has to answer.
Lord Hailsham of Saint Marylebone: My Lords, lest our silence on this side should be misinterpreted, will my noble friend accept that many of us are wholeheartedly in agreement with the attitude of Her Majesty's Government both in respect of Fiji and in respect of sanctions but that some of us think that these matters are better treated in this House by way of debate, when speech is unlimited and can be made on both sides and from every point of view, rather than by pursuing the matter on a Government Statement?
Viscount Whitelaw: My Lords, I can only thank my noble and learned friend, as I have reason to do on many occasions.
Lord Irvine of Lairg: My Lords, will the noble Viscount tell the House what specific sanctions, if any, against South Africa the Government believe to be of real practical effect today?
Viscount Whitelaw: My Lords, I can only answer the noble Lord by saying that we agreed to the Nassau sanctions as a signal to South Africa. That is what we are continuing to support and what we have actually fulfilled to the letter. We have done exactly what we said we would do.
Lord Irvine of Lairg: My Lords, does the noble Viscount believe that these sanctions, each of them agreed at Nassau, continue to be of great practical effect?
Viscount Whitelaw: My Lords, my right honourable friend made it clear that she agreed to them as a signal to South Africa. She believes that they will continue to be a signal to South Africa, but she made it perfectly clear that she did not see that sanctions as a whole would be effective. If the noble
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Lord means effective in getting rid of apartheid, she said she did not believe that the sanctions would get rid of apartheid.

Criminal Justice Bill [H.L.]
4.5 p.m.
The Minister of State, Home Office (The Earl of Caithness): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clauses 25 and 26 agreed to.
schedule 2 [Documentary evidence—supplementary]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 30:
Page 101, line 22, leave Out paragraph 4.
The noble Earl said: I should like to speak also to my Amendment No. 33 which is consequential and, with the leave of the Committee, to Amendment No. 32 which is related.
My two amendments are essentially technical, but they bear directly on the problem which Amendment No. 32, in the names of the noble Lord, Lord Hutchinson of Lullington, and the noble and learned Lord, Lord Elwyn-Jones, is intended to address. It may first be helpful if I explain how the government amendments have come about.
Schedule 2, contains a number of provisions ancillary to those in Part II which do not need to feature in the body of that part of the Bill. One of these is to the effect that, where a statement has been made abroad the court should have regard, in assessing the weight to be given to it, to whether it was possible for questions to be put to the person making it.
On reflection, it seemed to us that this was wrongly placed in Schedule 2 and bears so directly on the procedure created by Clause 27 for taking evidence abroad that it should be part of that clause. It also seemed right that the issue of whether there has been an opportunity for questions to be put to the witness is a sufficiently significant consideration to affect not only the weight to be given to the evidence but its very admissibility. Amendments Nos. 30 and 33 therefore transfer the provision from Schedule 2 to Clause 27 and require the court, in deciding under Clause 23 whether to admit the product of a letter of request, to have regard to whether there has been an opportunity for questioning.
How does this affect Amendment No. 32? That proposal approaches from a slightly different direction the important questions of legal representation for the accused and opportunities for cross-examination. The first point I might make is that the circumstances in which requests will be made

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are likely to vary greatly. Sometimes, as the amendment of the noble Lord, Lord Hutchinson of Lullington, implicitly recognises, proceedings will not have begun, and the questions of representation and cross-examination to which his amendment directs our attention will not arise. In other cases the evidence will be of such a routine nature and so factual in character that it is unlikely that any great purpose would be served by the accused being represented and having questions put on his behalf. But there will undoubtedly be cases where there is a good case to be made for the accused having his lawyer present when the evidence is taken, able to address questions by one means or another to the witness. In that respect, the noble Lord has, if I may say so, put his finger on an important point.
I should be reluctant, however, to accept his amendment as it stands. The reason is that we would not wish to make rules which purported to impose on foreign jurisdictions procedural requirements which, for understandable reasons, they might in some cases be unable to meet. Legal systems differ greatly and it may not always be possible to guarantee a particular style of procedure. We are also not entirely sure that this is a matter which can properly be dealt with in rules. The better approach, we think, is not to purport to impose procedures on the other countries concerned, but instead to require the courts in this country to have regard to whether legal representation was available for the accused when the evidence was taken and whether there was an opportunity for cross-examination.
That is where the Government amendments come into the picture. The product of letters of request will fall to be admitted as evidence under Clause 21 of the Bill. It will be a first hand statement in documentary form. But, as with all other documents capable of being admitted under Clause 21, the court in this country would have discretion to exclude it under Clause 23. What I should be willing to do, if the noble Lord thinks it would be helpful, would be to amend Clause 27 so that in deciding whether to exercise that discretion in relation to evidence taken under Clause 27, the court should, in addition to all the other considerations listed in Clause 23, have to take account of the question of legal representation and the presence or absence of opportunity for cross-examination.
This would involve some change in the terms of Amendment No. 33, since it deals only with cross-examination. But I would be willing to withdraw both government amendments and to consider between now and the Report stage whether we might re-express Amendment No. 33 so that it refers explicitly to legal representation and cross-examination. The court in this country would then be bound, in considering whether to admit or exclude the product of a letter of request, to have regard to whether the accused—assuming the accused had been identified—had had an opportunity for legal representation and for questions to be put to the witness on his behalf. I believe that would go a long way towards meeting the noble Lord's concern, and I very much hope that on the basis of that assurance he will be ready not to move his amendment. I beg to move.
Lord Hutchinson of Lullington: I am grateful to the Minister for what he has said. It was a little difficult to follow the whole of what was said as the proposals were delivered so quickly. As I understood it the main point that he made was that he did not wish to impose upon foreign countries a duty which they might not wish to take on board. Perhaps I may deal with Amendment No. 32 at this stage. That amendment merely suggests the insertion of words at the end of line 33 in Clause. 27(5)(c) which reads:
"may make such provision as appears to the authority making either of them to he necessary or expedient for the purposes of this section and in particular for the appointment of a person before whom evidence may he taken in pursuance of a letter of request."
It is suggested that the following words are added:
"and where proceedings have already been instituted, for the legal representation of the accused and his right to cross-examine."
All that is being suggested is that provision should be made—it is not imposing any duty on anybody—for that eventuality. The Minister's suggestion, as I see it, is to leave it only on the basis that the evidence may be excluded if the opportunity has not been given to the person who makes the statement.
Perhaps I might tell the Minister that the reason for the amendment—and if he is going to take it away and consider the exact wording I am sure that he will take this into account—was that the Roskill Committee dealt with the question of the difficulty of getting evidence from abroad before the court in this country, and indeed the noble and learned Lord, Lord Roskill, referred to that matter in the recent debate on another amendment.
What the committee said at paragraph 5.43 is this:
"We consider that the difficulties being experienced are such that legislation should now be sought to enable oral evidence to be taken on commission abroad for use in criminal cases in England and Wales."
That is exactly what this clause seeks to do:
"We recommend that such legislation should provide that the judge be given power to order at the preparatory hearings the examination and cross-examination of any witness (whether for the prosecution or the defence) who is unable or unwilling to attend the trial in this country. In civil proceedings it is possible to obtain the evidence of a witness resident abroad by sending a commissioner abroad to examine the witness and present his testimony to the court in writing. We see no reason why a jury should not form its own view of the value of such evidence from reading a transcript of the witness' evidence (or a translation by a sworn interpreter) just as a judge does in a civil trial. The results of the examination and cross-examination might be clearer, of course, if the examination abroad were recorded on a video tape to be played back at the trial so that the court and the jury could see how the witness reacted to questioning."
4.15 p.m.
It was quite clearly in the mind of the Roskill Committee that whichever way it went, whether it was a transcript or a video, there should be examination and cross-examination to enable the jury to assess the evidence contained in the statement. Indeed the statement obtained from abroad will be completely valueless and will not have any credibility unless there is an opportunity to cross-examine and to test it.
Therefore, while very much appreciating what the Minister has said about his understanding of the necessity for cross-examination I should hope that when he takes it away and looks at it again he will bear in mind those observations in the Roskill Report

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and make provision, once proceedings have begun, for representation of the accused and provision for his right to cross-examine. Thus it will be made perfectly clear that any statement obtained abroad in this way will have real credibility if it is put in evidence in a trial in this country.
Lord Mishcon: I only want to add one word in support of the noble Lord, Lord Hutchinson. I think that he possibly wrongly interpreted what the Minister said. If he did so, I am sure that he will welcome my observation; if he did not, I apologise for wasting the time of the Committee.
I understood the noble Earl to say not that the court would, or would not, exclude the statement where indeed there had been no provision made for cross-examination and representation. I think what the Minister in fact said he was considering was that the court would have the opportunity of deciding whether or not the absence of that right should, or should not, exclude the statement from being admitted in evidence. Of course there is a world of difference between the two.
If it is merely to be left to the discretion of a court to try to work out whether or not cross-examination might have been effective to test the credibility of the witness whose statement had been taken abroad, it would be quite absurd in the interests of justice. There must be, as the amendment says, clear provision made where proceedings have been instituted. As the Roskill Committee definitely laid down, if proceedings are instituted there must be provision made for proper representation and the ability to cross-examine. If that provision has not been made the statement must be excluded, and it should not be a discretionary right of the court to exclude at its discretion if it finds that indeed that right had not been given.
Lord Campbell of Alloway: In practical terms surely the noble Lord is right. There is really no practical difference in the end between the proposals of my noble friend the Minister which rest upon the permissive, "may make such provision", and his undertaking to include in that the concept of legal representation and the question of the right to cross-examine, and the concept of the amendment of the noble Lord, Lord Hutchinson, which incorporates precisely the same concept. At the end of the road it is merely a matter of wording. In principle both amendments arrive at the same result.
The Earl of Caithness: I am grateful for the support of my noble friend. To recap, the presence or absence of representation or cross-examination would be added to the specific factors to be taken into account by the court, which is another important safeguard.
I wish to take up the noble Lord, Lord Hutchinson of Lullington, on one small point. He said that one of the reasons I was reluctant to agree to the amendment was that a foreign jurisdiction, to use his words, "might not want to take it on board". In fact I said, "would be unable to meet", which has a different sense and adds to the reasons that I went on to expound as to why my suggestion was the better one.
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I do not think there is need to make the provision suggested by the noble Lord. If the foreign system allows the accused to be legally represented, well and good, but the accused does not need a Crown Court rule to be made in order to employ a lawyer in those foreign proceedings. We still believe that the provisions the noble Lord suggests are otiose. We believe what we offer would be sufficient to meet his point.
I should like to take away the three amendments and consider the matter, as I said at the beginning. I will read carefully what all noble Lords have said today.
Lord Mishcon: Before the noble Earl does that, and it is very gracious of him, I should like to make clear from my point of view—the noble Lord, Lord Hutchinson of Lullington, obviously will add to it if he sees fit—that all the Minister is offering—this is not what the noble Lord, Lord Campbell of Alloway, understood, or, if he did so understand, I did not understand his speech—is that the court may in its discretion take into account the absence or presence of this facility to cross-examine. If the court thought it was all right to admit it even though no such right had been given, it would be competent for the court to do it. This amendment states that provision ought to be made. That is the great difference between the two points of view.
I therefore cannot agree with the noble Lord, Lord Campbell of Alloway, when he says that it is a difference without a distinction or a distinction without a difference.
Lord Harris of Greenwich: The Minister has said that he will reflect on the matter between now and Report. Given the fact that important issues are involved, it would be helpful if he were to write to those who participated before Report to give good notice of the result of his reflections.
The Earl of Caithness: It will be one of the many letters that I shall write between now and Report.
Lord Hutchinson of Lullington: I am happy not to move the amendment. It is enjoyable to be led on any occasion; to be led by the noble Lord, Lord Mishcon, on this occasion is an added pleasure. As his junior here, I should not think of saying anything different!
To help the Minister, I wish to mention Clause 30(5) before we reach it as it appears relevant here. The clause deals with giving evidence through video links, which relates to what we are discussing. Subsection (5) says:
"The provision that by virtue of subsection (4) above may be included in rules to which that subsection applies including such provision as appears to the authority making the rules to be appropriate for securing that in such cases as may be specified in the rules, the video link allows all persons concerned in the case to see and hear the witness and the witness to see and communicate with them''.
I ask the Minister to say in due course—I do not expect an answer now—whether those somewhat tortuous and indigestible words by implication provide for cross-examination. I cannot understand what the words mean. Do they envisage one-way visibility only on the video link, one-way

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communication and one-way questioning or, by implication, do they mean that there will be an opportunity for cross-examination? I mention this because it seems relevant to the amendment under discussion.
The Earl of Caithness: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
[Amendment No. 31 postponed until after Clause 61.]
Clause 27 [Issue of letters of request]:
[Amendment No. 32 not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 33:
Page 17, 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 to whether it was possible to challenge the statement by questioning the person who made it.").
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clauses 28 and 29 agreed to.
Clause 30 [Evidence through video links]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 34:
Page 18, line 26, leave out ("video") and insert ("closed circuit television").
The noble and learned Lord said: This is the first of a series of amendments concerning the proposed provision for children to give evidence in court. I have the privilege of moving the amendment together with the noble and learned Lord, Lord Edmund-Davies, the noble Lord, Lord Meston, and the noble Baroness, Lady Faithfull, a catholic collection of supporters, which, I hasten to make clear, does not include the official Opposition, who at present at any rate are neutral on the subject.
The first of the amendments is a relatively innocuous one and is a matter of nomenclature. We support the Government's proposals for Clause 30 in general, subject to one or two amendments that we wish to move.
We think the use of the term "video link" is likely to cause some confusion. The word "video" these days is usually associated with other things. As we understand it, what is here proposed is that evidence should be given by means of closed circuit television. We think that there is likely to be less confusion if that term were substituted.
We are more concerned with what may seem a small point. In later, more substantial amendments, we seek to use the word "video" in "video link" in its proper sense. One would clearly wish to avoid any confusion between them.
Amendments Nos. 34 and 37 are to the same effect, Amendment No. 37 being subsequent upon Amendment No. 34. If the Committee accepts Amendment No. 34, Amendment No. 37 would follow from it. I beg to move.
Lord Campbell of Alloway: I hope that the Committee will accept the amendment, which is for clarification. The word "video" could give rise to difficulties of interpretation. It might be argued, for example, that it related only to a tape or some such thing. This is in line with introducing the other series of amendments which I shall support.
Lord Renton: I have one difficulty over this, which is no doubt due to my ignorance. It is perfectly clear that if the provisions of the clause are to become effective, whether it is to be by live video link or by closed circuit television, a record (in other words, a tape) has to be made. If that is so, it seems to me not to be very material as to whether it is done by closed circuit television, of which a record is made, or by video link. perhaps in my ignorance I could be enlightened.
Lord Hutchinson of Lullington: May I ask the noble and learned Lord this? Surely "closed circuit television" is not apt to describe evidence which is bounced from America through a satellite into a courtroom in this country. Surely that is a video link.
4.30 p.m.
Lord Hailsham of Saint Marylebone: I was about to raise a point similar to that of my noble friend. It is important in any trial on indictment that there should be available the equivalent of a transcript for the Court of Appeal; and closed circuit television could be arranged in such a way that such a transcript was not available. When my friend comes to answer, or at some other time, if he will consider it, will he make quite sure that, whatever words he uses, there will be a permanent record available for the Court of Appeal, if necessary?
Lord Denning: May I suggest that we have a definition clause to tell us what "video link" really means? We may know what closed circuit television is, but let us have a definition clause and let us have clearly defined what a "video link" is.
The Earl of Caithness: I am grateful to the noble Lord for drawing our attention to the terminology used in Clause 30. If I may say so, I was a little surprised to hear him say. if I understood him correctly, that he was not speaking for the official Opposition when he was speaking from the Dispatch Box. At that stage I thought he was speaking for the official Opposition, who I think, if I am right in my interpretation of the noble Lord, will remain silent at this stage.
Lord Mishcon: I find it awfully difficult to remain silent: I believe that is the common view of the Committee. I think that on a matter of this kind, where one has the dual duty of safeguarding an accused and at the same time helping a child, many of us want humbly to listen to the debate and then come to a conclusion. If an opposition or a government, in this place of all places, were to have firmly fixed views before hearing the debate, the whole procedures of the Committee on a matter of this kind would be abortive in my view. That is the position of the Opposition. I hope it is the same position on the Government Benches.
The Earl of Caithness: As I think has been clearly indicated, we on this side are prepared to listen. We do not always have fixed views but at least we have some views. I believe that the purpose of the clause is well understood, but it is less clear how we can best describe the means by which the live evidence is to be taken in a case to which it applies.
We owe the term "live video link" to the Roskill Committee, which recommended that such links should be deployed using satellites for the taking of overseas evidence in complex fraud cases; but we are by no means wedded to this terminology. I am persuaded by what the noble Lord has said that "closed circuit television" is a clearer and more widely understood form of words. I am therefore glad to say that we can accept these amendments. We might want to suggest some further adjustment to the language at a later stage. For example, I notice, as has already been mentioned, that in one amendment the phrase "live video link" would survive in subsection (5); but that need not prevent our making these amendments now.
With regard to the point made by my noble friend Lord Renton and my noble and learned friend Lord Hailsham, of course a record will be kept in the usual way of these court proceedings and will be available for the Court of Appeal if necessary. It does not have to be done by means of video.
Lord Simon of Glaisdale: If the noble Earl will allow me, what does he mean when he says "kept in the usual way" in relation to this peculiar manner of giving evidence?
The Earl of Caithness: I understand that in courts there are shorthand writers who will be able to take down the transcript of the conversation between the parties.
Lord Renton: If I may say so, I think that my noble friend has missed the point made by my noble and learned friend Lord Hailsham and indeed by me too. We have said that there must be a record and the question is: what sort of a record? Also what arrangements would be made for the proceedings being taken and for their being proved, because that may be desirable too? Merely to have a transcript taken as the result of a shorthand note would not be right in a matter of this kind. We need to have a tape which shows what was actually seen on the closed circuit television. Can my noble friend give us an assurance that that is what will happen? As the noble and learned Lord, Lord Simon of Glaisdale, has just pointed out, it is no use saying that it will be done in the usual way because there is not yet a usual way for doing this.
Baroness Faithfull: I wonder whether I may refer the Committee to the work that has been done in Bexley as between the social services department and the police with regard to this matter. There has been a television set in a room apart from the court and the child, with an interviewer, is in that room. In the courtroom there are television sets so that members of the court can see them. Also one is able to hear what the child says and what is said to the child.
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Therefore one hears exactly what is said, and I think a transcript is taken.
Lord Silkin of Dulwich: Let me say a word in support of what the noble Lord, Lord Renton, has said. I do not think it affects the specific point of the amendment. I am grateful to the Minister for having indicated the Government's acceptance of that, which I believe to be right. I agree that the Court of Appeal might very well wish not merely to read what is said in a transcipt but actually to see what the court saw. It is something which it does not have the advantage of in the ordinary way, but this is different from the ordinary way. It seems to me that the Government ought to give very careful consideration as to whether there should not be made available to the Court of Appeal, if there should be an appeal, what would truly be a video in that context; that is, a record of what was seen and heard through the closed circuit, if this procedure is adopted.
Lord Campbell of Alloway: This should be twofold: the tape and the transcript, so far as anything is said. So long as you have those two safeguards, then this is clearly entirely proper.
The Earl of Caithness: This raises a point that I should like to look at. But let us just take the case—not the fraud case that the noble and learned Lord, Lord Roskill, was looking at in connection with his report but, let us say, a case concerning the sexual abuse of a child. Instead of the child being physically in the court, he or she will be in an adjoining room. We shall come to the details of that in later amendments. But all this link will be doing is to transmit what the child is saying to the court in a live manner. I do not at the moment see why it is necessary for that to be taped as well as taken down in written evidence, because if you took away the wall behind which the child is sitting, the child would be in the court and there would not be a video link now.
I think that is something at which I should like to look and discuss in much more detail with my noble friend Lord Renton as well as with the noble Lord, Lord Hutchinson of Lullington, who is particularly keen that we should not necessarily allow evidence in this manner to come forward. I shall be interested to hear his views in due course, but perhaps we can discuss it at a later stage.
Lord Hailsham of Saint Marylebone: I do not want to bother my noble friend unduly but what I had in mind was just as much someone who is slightly familiar with television as someone who thinks he is familiar with court procedure. Presumably the video link will not show the whole of the room in which the child will be giving evidence. It will show a picture of the child and perhaps the person who is putting questions to the child, unless that person himself is in the courtroom.
A permanent record is wanted, so that should anything be alleged against the propriety of what took place in two separate rooms physically, it could be looked at and adjudicated upon by the Court of Appeal. It is in the nature of things that if there is an examination taking place in one room and a trial

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proceeding in another, the first of the two episodes may not be completely shown by the video. Therefore one must have a permanent record of what is done.
The Earl of Caithness: I am grateful to my noble and learned friend for those additional comments. I shall draw them to the attention of my noble and learned friend the Lord Chancellor. As my noble and learned friend who made the point knows better than I do, it is for the Lord Chancellor to make the rules for the court and it is only right that I should draw this matter to his attention.
Lord Mottistone: I hope what when my noble friend takes this amendment away he will bear in mind the suggestion made by the noble and learned Lord, Lord Denning, that there should be a definition clause in this section to indicate precisely what is meant by "video link". It means different things to different people, as does "closed circuit television" under certain circumstances. The amendment could well incorporate a method for use in this role in the way suggested by my noble and learned friend Lord Hailsham.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 35:
Page 18, line 27 after ("Appeal") insert ("or the hearing of a reference under section 17 of the Criminal Appeal Act 1968").
The noble Earl said: As it stands, in certain circumstances Clause 30 permits evidence to be given by what we now call closed circuit television in trials on indictment and in appeals to the Court of Appeal. We see great advantage in enabling use also to be made of this facility in those few cases which my right honourable friend the Home Secretary refers to the Court of Appeal, using his powers under Section 17 of the Criminal Appeal Act 1968. These cases usually come to light some time after conviction and after further investigation. By that time, witnesses may be abroad and unable or unwilling to return to the UK to give evidence in person. Use of closed circuit television in those circumstances would clearly be in the interests of justice. Similarly, should such cases involve offences of the kind specified in the clause and involve child witnesses, then it seems right that they should be spared the ordeal of giving evidence in person, whether it be a reference, an appeal or the trial proper.
This amendment will enable evidence to be taken by closed circuit television in appropriate referred cases. I beg to move.
On Question, amendment agreed to.
4.45 p.m.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 36:
Page 18, line 44, at end insert—
("(2A) The court may in any case direct that a witness under the age of 14 be questioned by a person acceptable to the parties and the court and such questions and the answers thereto shall form part of the evidence in the proceedings.")
The noble and learned Lord said: Amendment No. 36 is the first of the more substantial amendments in this group. One of the fears that has often been expressed about the closed circuit television link system is that it does not overcome the difficulty of a
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child, particularly a young child, being examined and cross-examined by counsel, or indeed by a defendant in person, who may be a very interested party in relation to the child's evidence, and the effect that it might have, and does have on occasions, as we know, on the way the child gives evidence or on his willingness or ability to do so.
A number of people concerned in this field have suggested that there should be a provision which would enable the child to be examined by some third person who is not connected with the prosecution or the defence and possibly that person would be fed with questions that are important to the prosecution and the defence. We have considered that possibility but do not feel that by itself that procedure would be satisfactory or fair, and the proposal made by this amendment does not go anything like so far. It proposes that if the parties and the court agree that a witness should be asked questions by some third person and that third person is acceptable to all of them, the procedure should allow it.
One hopes that there will be many cases in which both the prosecution and the defence accept that it is the sensible thing to do and agree therefore in principle. They should also be able to agree on the right sort of person to carry out that task. One hopes then that in at least the majority of cases the court will also agree. In other words, this is not an impediment upon the procedure but an additional power, which, given the procedure of this clause, will be available to the court and the parties if that procedure is thought helpful in obtaining evidence from a young person.
Indeed, in some recent cases we have seen that with the best will in the world and even with the most careful attempts within the procedure of segregating a child witness—yet still allowing, as must be allowed within the present procedure, questions to be asked by counsel who appear without their gowns and wigs, in the presence of a judge who sits without his judicial paraphernalia and with the help of people who are experienced in dealing with young children—there have still sometimes been very great difficulties. We know that as a result of those difficulties on occasions a child has simply been unable to give evidence and nobody wants to force the child to do so.
This amendment gives a power which could be used if circumstances of that kind arose and if the parties were prepared to agree to the procedure and on the person who would put the questions. No doubt one of the conditions of that agreement would be that that person would put whatever questions were desired by both the prosecution and representatives of the defendant. Presumably it would be only on those terms that the court would agree. As a useful additional procedure I hope that the Government will feel that this amendment is worth accepting. I beg to move.
Lord Campbell of Alloway: May I seek a measure of clarification from the noble and learned Lord? I find the drafting, although I accept the spirit of it, extremely difficult. I may be wrong and I seek his correction if I am. One can take it quite shortly. This amendment applies "in any case". "In any case" goes beyond the circumstances of Clause 30(2). But then if you look at Clause 3(2), the drafting seems, with

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respect, to be curious. It says, "This subsection applies". Surely that means that subsection (1) above applies, because otherwise the clause makes no sense. If I am right in that assumption then clearly the words "This subsection applies" require amendment to say "Subsection (1) above applies".
If it is right so far on analysis, as an adjunct to the armoury for the protection of children from molestation, this proposal, although well-intentioned, has very severe limitations. I ask with respect: is the child complainant "one of the parties" in the amendment, or is it the Crown that is one of the parties? Can the Crown give consent, if the child complainant will not consent, to the questioning of a witness under 14? Would the accused be likely to consent, in any event? What is this procedure of a list of agreed questions? How is one to achieve agreement on the list of questions? Has the examiner extra powers to ask questions on his own initiative?
These questions and the form of drafting, although I accept the good intentions of the spirit, cause me to wonder, in the absence of clarification, whether I could personally vote for the amendment in its present form.
At all events, after the words "The court may in any case" in this amendment, you would surely have to insert the qualification to which subsections (1) and (2) apply, to narrow it from "any case" to the purpose and object of the child molestation protection concept. With the qualification acceptable to the parties, the Committee may feel that the amendment would serve little practical purpose. I respectfully suggest that it is too wide, of limited value, and in its present form, subject to clarification, perhaps unacceptable.
Lord Denning: I hope the Committee will think a little more about this amendment by trying to envisage what is going to happen with the closed circuit television. Who is to be present in the other, next-door room besides the child? Is the judge to be there? Are the two counsel to be there in that other room, or are they not? Are the judge and the counsel to remain in the room where the jury are? It is very important to decide what the practical position should be when a child is in the next-door room being questioned or cross-examined. I should like to ask: what is the function of the judge?
I think that often I was able myself with a child witness to put the child at ease. I tried and I think I succeeded, and the child had confidence in me. Not all judges could do it, but perhaps I could. I could put a child at ease and, I hope, get the truth as best I could from that child. Is such a thing to happen with this video link or closed circuit television? Is the judge to have any part in it at all? He will not be in the next-door room. He will not be able to turn, as I would, to the child and say: "Did you really mean that?", or "Was it this, that or the other?"
In other words, a great deal more thought needs to be given to the practical working out of this closed circuit television in a next-door room when the judge and the counsel and the jury are in the adjoining room. It needs a great deal of working out and this
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amendment put down today means that the Government ought to consider what is the practical way of introducing closed circuit television into our criminal trials.
Lord Hutchinson of Lullington: With great respect to the noble and learned Lord, I think really he was addressing his words to the next amendment.
All I wish to contribute on this amendment is that it seems to me an extremely useful provision, one which might encourage the parties to do what is suggested in the amendment. I would only ask again for information, as the noble Lord, Lord Campbell of Alloway, did. I agree with him entirely on the drafting of Clause 30. Surely Clause 30(2) should read: "Subsection (1)(b) applies".
However, having said that, as a lawyer I ask for this information. Is it visualised that if both parties agree that this person should conduct the questioning, this should be done before trial and a statement should be taken from the child on that basis which then would be used at the trial, with the possibility of either party questioning the child on the basis of that; or is it visualised that this statement should be the statement—finish—in the whole of the proceedings? In my view, the first one might be the more useful.
Lord Renton: The difficulty I feel about the amendment is this. We are told in subsection (1) that this is a case of giving evidence on a trial on indictment or an appeal to the criminal division of the Court of Appeal. We now, through a government amendment, find that it would also apply to those cases which are referred to the Court of Appeal. But a trial on indictment is always preceded by a preliminary hearing before the magistrates. It seems to me that that is the stage at which it would be right to be taking this evidence.
If that is so, then I think that this clause needs to be redrafted to make it clear that that is envisaged. Then, of course, if that were done, the amendment of the noble and learned Lord, Lord Silkin, would have to be reconsidered in any event. Perhaps I may make one very small point in relation to the drafting of it. Maybe my recollection is wrong, but I have always thought that you speak of the parties to a civil case but that in the case of a criminal case you do not refer to the prosecution and defence as the parties.
Lord Mishcon: I think we are all trying very hard to carry out the duties to which I tried humbly to refer before. It is difficult. I am trying to envisage the practicalities of this amendment, and I mention a point which I believe has not been mentioned so far. One can imagine that in a few cases the parties, whoever they may be, may indeed agree to a person in whom both parties, if it is just the two—the prosecution and the defence—have confidence asking and obtaining answers to certain questions. I cannot envisage anyone on behalf of the defence doing this without the questions being agreed beforehand.
I am trying to envisage what happens in regard to supplementary questions. There are very few questions that can be addressed, especially to a child, where you obtain the answer yes or no. And in the

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type of cases that we are unfortunately envisaging, there are very few questions that could be answered completely yes or no. If this procedure is gone through, what happens when there is a question asked to which an incomplete answer is given? Has an application immediately to be made back to the judge and to the parties, as to whether such a question which is a supplementary question, can now be put? This is the sort of amendment that has good-heartedness behind it but where agreement between "the parties" is scarcely likely in practical cases to be achieved. Even if it were achieved, it seems to me to lead to a very partial successful result.
5 p.m.
Baroness Faithfull: May I say that I believe a number of these questions will be answered and understood when we have debated Amendment No. 38?
Lord Milverton: In principle it seems only right and proper that somehow this amendment should be made right even if noble Lords suggest that it has some flaws. I hope it will be possible to make the amendment workable. It is only fair and right for the children.
Lord Campbell of Alloway: I raise a point of clarification. Amendment No. 38 stands on its own feet. I support that hook, line and sinker. I would oppose this one, having listened to the debate, hook, line and sinker. It is a different issue.
Lord Edmund-Davies: I refer to the point of the noble Lord, Lord Renton, about the questions envisaged in Clause 30 being questions which have been put at the committal proceedings stage. The noble Lord will doubtless remember that Clause 31 provides that in proceedings before the examining justices,

"(a) a child shall not be called as a witness for the prosecution; but

(b) any statement made by or taken from a child shall be admissible in evidence of any matter of which his oral testimony would be admissible."

That is a clause already in the Bill.
Lord Renton: In that case, my comment would be that Clause 31 would do much better coming before Clause 30.
Lord Hailsham of Saint Marylebone: I hope that whatever else we do in the course of this very interesting discussion we shall not diminish either the burden or the standard of proof against an accused. It would be only too easy to allow our detestation of offences against children, or our sympathy with the child who has to give evidence, to override our other feelings. The law of England must remain that a man or woman is not to be found guilty of a crime unless it is proved beyond reasonable doubt that guilt is established.
Baroness Macleod of Borve: I agree wholeheartedly with the noble Lord, Lord Renton. Although the Court of Appeal is mentioned, in actual fact the first trial always takes place in the magistrates' court.
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Therefore, with respect, it seems to me that everything we are discussing will be pertinent to the magistrates' court before the Court of Appeal or indeed any other court.
The Earl of Caithness: This amendment would give the courts a discretionary power to direct that a child witness in, say, a sex abuse case should be questioned by a third party independent of prosecution, defence or judge—the so-called child examiner. Before I deal with this amendment, I should like to explain that, while I recognise that boys, are alas, also subject to abuse, as a matter of convenience I shall be referring to the victims as "her" throughout the following debates.
To clear up one point straightaway, the noble and learned Lord, Lord Silkin, said that the examiner in his amendment would have to be acceptable to all parties. I fully understand the concern that has prompted the noble and learned Lord to table the amendment. We all acknowledge that giving evidence at the Crown Court in such cases can be a distressing experience for a young child. We all wish to minimise this distress as far as possible. I can assure the Committee that the Government need no urging from others to take action on this. I will not now take the opportunity to list the numerous initiatives we have already taken, or have planned, to deal with the evil of child sex abuse. The clause we are debating is itself a major step which will reduce the trauma to child witnesses in criminal cases.
But we must ensure that reforms are justified and we must ensure that the right of an accused person to a fair trial is not infringed, as my noble and learned friend Lord Hailsham has said. I agree entirely that there must be justice for children, but, equally, there must be justice for an accused. I have doubts about whether the introduction of child examiners would, in fact, greatly reduce stress to children witnesses; and I am convinced that it would be so unjust to an accused that we should oppose it.
This amendment presupposes that there is some way in which a child's evidence can be elicited by sympathetic questioning without upsetting her. The plain fact is that if a man pleads not guilty to a charge of sexually molesting a young girl he is, in effect, saying that she is lying. I cannot see how he can hope to be acquitted unless at some stage she is asked on his behalf whether she is lying. Of course this will distress her, and I have the utmost sympathy with the victim and her parents. But I see no way round this dilemma. In these circumstances cross-examination is bound to be upsetting no matter who undertakes it. From her point of view I doubt that much is gained by using a social worker or some other person as the mouthpiece of defence counsel.
On the other hand, interposing a child examiner between the defence and the principal prosecution witness would undoubtedly dilute the interaction between counsel and child which is a key part of protecting the right of the accused person who, we must remember, is innocent until proven guilty. A man accused of this sort of crime is at risk—quite rightly—of a long-term of imprisonment. He is entitled to a fair trial. We are convinced that this must

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mean that he is entitled to question the evidence against him through counsel of his choice.
The noble and learned Lord, Lord Silkin, obviously agrees with this view because his amendment would not permit any child examiner to question the witness. The proposal is for a discretionary power; and the examiner must be a person acceptable to the defence. But while this appears to preserve the accused's right to choose a person to question witnesses, in practice it would remove it. If a judge directed that questioning was to be via a third party, is it really feasible that the defence would refuse to agree to this and insist on their rights? In any event, jurors would be well aware of the power that was on the statute book.
I do not believe that any defence counsel worth his salt would agree that his client's case should be conducted by, say, a social worker or some other well-meaning person. I find it inconceivable that he would permit the crucial witness to be questioned by anyone other than himself. That is why I was so surprised to hear the noble Lord, Lord Hutchinson of Lullington, say what he did. I thought he was a great believer in this particular aspect of the court's procedure which would be undermined by this amendment. Either the amendment—
Lord Hutchinson of Lullington: May I interrupt the Minister as he has mentioned me? As I understand the amendment, it is not at all to do with what the Minister is saying. I may have got it completely wrong and he may have got it completely right. As I understand the amendment, both parties would agree that the first statement to be used in the proceedings would be a statement taken by a person agreed by both parties rather than some police officer, social worker or whoever. The impartial person agreed to by both parties should take the original statement from the child. That seemed to me a sensible proposition and that is why I supported it. It never occurred to me that it would take the place of cross-examination.
The Earl of Caithness: As I understood it, the suggestion was not that it would take the place of the first statement but rather that throughout the case a third party could be used, thus taking over the role of counsel's cross-examination.
Lord Mishcon: May I at once dissociate myself from my junior counsel?
The Earl of Caithness: The noble, Lord Mishcon, and I have often agreed in the past. We agree at this moment and I am sure that we both look forward to agreeing many times in the future. Either the amendment is a dead letter or, as I have explained, it would abolish the right of the defence to cross-examination by the back door.
For the reasons I have given, I fear that cross-examination of a child almost inevitably must be upsetting to her. But this does not mean that it must be brutal. I am not aware of any evidence that counsel for the defence terrorise children during cross-examination. Indeed, they would be singularly
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ill-advised to do so. The code of conduct of the bar forbids barristers to put questions which are intended only to insult or annoy a witness or which are otherwise an abuse of his function. Counsel will be well aware, in any event, that such a line of questioning with a child would be counterproductive. It would not impress the jury in his client's favour.
The judge is in overall control of proceedings and no doubt he would intervene to prevent any bullying of a child. Nevertheless, when every precaution is taken, questions may have to be put to children during cross-examination which may upset or distress them. There is nothing to show that defence counsel, when performing this duty, go further than is necessary. I doubt that interposing a third party as proposed by this amendment would greatly reduce distress to the child or, if the questions which it is necessary for the defence to put are still put, that it would result in more sympathetic questioning. But it would seriously infringe the right of an accused and prejudice the fairness of the trial. For those reasons, I hope that the noble Lord will not press his amendment.
Before I sit down, perhaps I can take the opportunity to respond to some of the points raised during the debate. The noble and learned Lord, Lord Denning, asked about the implementation of closed-circuit television. If Parliament agrees our proposals, we hope to bring that into force as soon as possible. But inevitably there will be a delay. Courts will have to be equipped and rules governing procedures will have to be made. As the noble and learned Lord is aware, that will take time. In any event, we cannot begin equipping courts until Parliament has authorised that expenditure and the Bill has received Royal Assent.
What we can do now is to prepare the ground. We have already sought views on how the scheme should work and those are still being received. We have commissioned a report from consultants which will cover such matters as which Crown Court centres need to be equipped, the type of equipment necessary and the building work that will be required. It will also cover some of the points that the noble and learned Lord raised. I can assure the Committee that preparations are in hand. However, at this stage, I cannot give a firm date for implementation.
My noble friend Lord Renton asked about extending closed-circuit television to magistrates' courts. I take my noble friend's point, which was supported by my noble friend Lady Macleod of Borve, concerning committal proceedings in magistrates' courts. The anecdotal evidence we have is that children do not find summary trials nearly as traumatic as proceedings on indictment. Proceedings at summary trials are more informal and the alleged offences are less serious than those in cases dealt with by the Crown Court. Also, equipping magistrates' courts would be extremely expensive and we do not think that the cost is justified—
Lord Renton: Will the noble Earl permit me? I was not referring to cases of summary jurisdiction. I was referring to the fact that committal proceedings take

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place in magistrates' courts. It seems to me that if we are going to have such cases tried on indictment it would be right for them to be part of the committal proceedings.
The Earl of Caithness: I take my noble friend's point about committal proceedings. I was just going to cover that particular point. Most committals are on the papers rather than on an oral hearing. Even when there is a full committal, Section 103 of the Magistrates' Courts Act 1980 provides that only in exceptional cases should children be called to give evidence. Usually their statements will be used. Clause 31 of the Bill extends the provisions to cover exactly those offences covered by closed-circuit television in Clause 30. But the defence can insist on the child giving oral evidence. Therefore, I should like to consider the point further. I refer my noble friend again to the fact that we have asked consultants to advise us on closed-circuit television in the Crown Courts and they will also look at the question of committal proceedings.
My noble friend also raised a question as to whether in criminal law the word "parties" was correct. I regret to have to tell him that he is wrong about not referring to the prosecution and defence as parties. I refer him to Section 10 of the Criminal Justice Act 1967, which refers to that word.
Lord Renton: I bow to better recollection.
The Earl of Caithness: My noble friend Lord Campbell of Alloway made a point concerning drafting. The words, "this section applies" are not a drafting error. The words refer to Clause 30(1)(b) where they first appear.
Lord Campbell of Alloway: I hear what my noble friend says but I had some support from other experienced and distinguished lawyers in this House. I beg leave to suggest that he should take further advice and that the matter should be put right without necessitating a formal amendment.
Lord Hutchinson of Lullington: I support the noble Lord hook, line and sinker.
The Earl of Caithness: On a legal point such as this I am sure that my noble friend and the noble Lord, Lord Hutchinson of Lullington, will not be surprised if I bow out at this stage and say that I shall go for legal advice.
Turning to the amendment, may I recapitulate by saying that we are concerned about it. We do not believe that, weighing it in the balance, it would be of such benefit as the noble Lord who moves the amendment suggests.
5.15 p.m.
Lord Silkin of Dulwich: May I make clear, as there has been some uncertainty raised in the debate, that this procedure is intended to be ancillary to what has now been described as the closed-circuit television system. Other procedures which would be adopted in addition if some other system were adopted—and I shall be moving an amendment in due course about that—are quite different. What is proposed here is
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that as part of the closed-circuit television system it should be possible for what I hope I have correctly described as the parties and the judge to produce the result that questions would be put by some third party rather than by counsel or defendants themselves.
Although the discussion has centred on what is fair to the defendant, the provisions proposed are not solely and necessarily for the benefit of the defendant. Other child witnesses might be called who would have equal difficulty with the complainant against the defendant. The problems in court procedure are just as likely to cause difficulty to them in giving their evidence as to those who are the complainants. Any additional help that can be given to the courts in dealing with those difficult cases may be to the benefit of the defendant or the prosecution. I accept that it is much more likely that it would be the prosecution who would take advantage of it.
In passing, perhaps I may say a word about the point raised by the noble Lord, Lord Campbell of Alloway. I do not think myself that a provision of this kind would be wholly out of place in relation to Clause 31(a). There will be cases, it seems to me, where one would not want to send counsel on both sides and all the other paraphernalia to ask questions of a witness who is outside the United Kingdom. The case may be one where it is not necessary to go that far. This procedure could be of value in that instance as well.
Similarly, one can reduce the advantage, so far as children are concerned, to cases where it is thought that the child would not be likely to give evidence of a kind which must be the subject of very severe cross-examination. It may be somewhat at the fringe of the case, for example. I should have thought in those circumstances that it could be of some value. Therefore I find it surprising that the Minister should speak about an additional power certainly not often used; and I made that clear, I hope, at the outset. It is nonetheless available for the court. He spoke of that as though it were derogating from the rights of the defendant.
If a defendant insisted upon his right to cross-examination he could do so just as he can now. He is often placed in difficulty as to whether to cross-examine a child witness who has given evidence against him. He or his counsel know that he may create a very bad impression by doing so under the present system and he has to decide whether it is essential. With this amendment incorporated he would still have to decide whether it is necessary for him to cross-examine. He would have simply an additional way of avoiding the difficulty which the procedure proposed in Clause 30 involves.
It would be wrong at this stage to put this matter to a vote. We have placed the point before the Committee and we will clearly have to think about what has been said. The noble and learned Lord, Lord Denning, pointed to a number of difficulties in relation to this procedure concerning Clause 30. I accept that the amendment, although seeking on balance to remove difficulty rather than add to it, can cause difficulties in itself.

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I agree that the whole procedure needs to be very carefully thought out again before it is given effect to by those in charge of the prosecution or the defence. The greater the difficulties which exist the more one feels, as did my colleagues and I in relation to these amendments, that if one is putting on the statute book a procedure which is going to give rise to very great difficulties one should be thinking about possible alternatives. When we come to the remaining amendments which I hope to move, it is those alternatives that we shall be dealing with.
In the face of the fairly balanced expression of views this evening I feel it right not to pursue this matter now but maybe to come back to it with any amendment which may be drafted at a later stage of the Bill.
Baroness Phillips: Before my noble friend withdraws the amendment I should like to stress the importance, which he has just underlined, of the other child witnesses. We are not here dealing with ordinary children. Once again in this Chamber, and too often, we are so concerned about the rights of the accused. These witnesses are going to be very intimidated, even by the noble and learned Lords who sit here. They intimidate me, and if I were a nine years-old abused child they would certainly intimidate me.
There is no question of cruelty or bullying, but there is the question of submitting children to this kind of appalling trauma. There is no doubt that we are not getting cases before the courts for this very reason. Nobody wants to subject children to this procedure. We must find a way in which we can protect child witnesses. They are every bit as important as the man who is on trial.
Lord Silkin of Dulwich: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 37:
Page 19, line 2, leave out ("live video").
The noble and learned Lord said: This amendment follows from a previous amendment which has been accepted. I beg to move.
Lord Hailsham of Saint Marylebone: I thought that this amendment was going to be taken back, and therefore the best course is either to withdraw it or not to move it at all.
The Earl of Caithness: As I understand it, Amendment No. 37 is consequential upon Amendment No. 34, and Amendment No. 34 has been accepted.
Lord Hailsham of Saint Marylebone: I see. I am sorry.
On Question, amendment agreed to.
Clause 30, as amended, agreed to.
5.30 p.m.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 38:
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.

(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: We come now to what I shall not call the first substantial amendment, but certainly it is the most substantial of this series of amendments. Recent events have brought very clearly to the public eye the extent to which our law falls far short of a proper balance in the scales of justice where children are involved in giving evidence in the courts. These words were used the other day by the Home Secretary in another context. I consider them to be the most important words in this context which could be used.
In this field the balance is particularly delicate. It requires the maintenance of the traditional protection of those accused of crime. It also requires that our procedure should not create needless impediments to the child's effort to tell the truth or cause the child avoidable trauma resulting from the telling of it. It is today well recognised that our law and procedures fall far short of what is required to achieve the balance. The ordeal of giving sensitive evidence in open court in the presence of the parents to whose actions the evidence is directed is often too great for the child to accept. It is very likely indeed to cause lasting disturbance to the child.
Only this week our courts witnessed the obvious pain of child witnesses despite the most sensitive and praiseworthy efforts of the judge, counsel and all others concerned to try, within the present rules, to mitigate it. The Government have plainly recognised these deficiencies and by Clause 30 they have attempted to improve matters. But in our view Clause 30 is insufficient. As the NSPCC says in its briefing document, a wide package of reform is needed. Clause 30 is indeed welcome but it has weaknesses which can easily defeat its praiseworthy intentions. Some have been already referred to in earlier debates particularly by the noble and learned Lord, Lord Denning.
There is the question of time. The child will be asked to give evidence perhaps months after the event when his memory is not as fresh and cross-examination could be a greater trial to him. The formality of the court procedures cannot be wholly

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displaced. If we do not put into the clause something on the lines of the amendment that I have just withdrawn, that will be even more the case. In particular, the process of cross-examination, perhaps by the defendant in person, could operate as a substantial deterrent to a witness whom humanity and common sense exclude from the category of compellable.
Clause 30 is confined to a limited range of offences and outside them existing procedures will continue to apply. The existing restrictions on a child's evidence being receivable are then maintained—that is the subject of a later amendment—but they are restrictions which are, in my submission, out of accord with current ideas and knowledge. They are an unjustified impediment to the disclosure of the truth; an impediment which may prevent the conviction of the guilty or, indeed, the acquittal of the innocent.
It is not suggested that Clause 30 has no value. It may well solve the problem in some cases but for the reasons given it is certainly not ideal. It is at least very likely that it will let some cases through the net altogether and that in many cases valuable evidence taken shortly after the event will remain unavailable to the court, as it is now.
The proposed new clause in Amendment No. 38 is part of a comprehensive body of legislation which will deal with the problem as effectively as can be seen at present. It goes to the heart of the problem by making provision for the admissibility of prerecorded evidence in the form of a video interview with a child who is under 14 years of age.
Of course, to do that involves the provision of adequate safeguards for the defendants and that is fully recognised. Therefore, the new clause provides strong safeguards for him. The Home Secretary is to issue codes of practice for the conduct and recording of video interviews. As experience grows that provision will undoubtedly grow in value. In particular, it is likely to define the qualification of a person who conducts an interview and the safeguards for the potential defendants when interviews are conducted.
The interview will then be admissible as evidence only with the judge's leave. The judge will certainly have regard, in particular, to the manner in which questions have been put and answered and the balance between probative value and possible prejudice. Of course, he will have regard in that context to the question of whether it would be unfair to one side or the other, probably the defendants, to allow such evidence and as a result of that to allow evidence before the court which at that stage, at any rate, has not been subject to cross-examination. The courts will, without doubt, be as astute as they always have been to protect the interest of defendants.
The new clause provides that the tender of evidence in the form of a video recorded interview will not prevent the interviewed child from giving evidence in person. There will clearly be cases where he is able to do so, whether through the mechanism of Clause 30 or in the ordinary way. If so, the record of the interview will be a valuable check on his oral evidence. In other cases he will be unable to do so. In
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those cases the interview record will stand with the other available evidence and be considered for its worth by the jury, bearing in mind that it is not evidence given directly before the court, it is not subject to cross-examination and will not be the only evidence of that character which is accepted by the courts.
Finally, if the new clause in Amendment No. 39 is passed the judge will have an over-riding power to withdraw the case from the jury if he considers that a conviction would be unsafe or unsatisfactory. If he does not go as far as that. he will be able to give the jury all appropriate warnings about the value of such evidence before leaving the case to them.
I hope it is clear that these new clauses have been most carefully framed to ensure that the interests of the defendant, as well as those of the child, are fully protected. The interests of society will be safeguarded by enabling those in our society who need and are increasingly given special protection—our children—to speak freely and without the fears engendered by even the most benign court procedures, thus providing them with the best protection which the law can give against abuse of any kind.
The NSPCC and other bodies with great experience in this field have called for a full-scale reform in this area of law. This new clause and the other amendments proposed by noble Lords and myself will provide that comprehensive reform. We believe that the evils today are too serious for piecemeal and partial action. The time has come for the wholehearted reform which this new clause and the others embody. I therefore commend the new clause to the Committee. I beg to move.
Baroness Faithfull: I rise to support the noble and learned Lord. I speak not as a lawyer and not as one taking part in the law. I speak as a social worker who has been a Home Office inspector, a children's officer and a director of social services and as one who has dealt with children who have suffered cruelty and/or sexual abuse.
This amendment has the support of my colleagues throughout the country. The noble and learned Lord, Lord Silkin, has referred to the NSPCC and that society has done a great deal of work in this area. Mr. Alan Gilmour has written to me saying:
"The Bill already contains proposals for children to give evidence in court via live video links… The NSPCC urges, however, that these measures should be linked to a wider package of reforms including the admissibility as evidence of video recordings of interviews with children".
I have also received a letter from the Police Federation of England and Wales referring to a trial where a child broke down and was unable to give evidence.
"This trial highlights the main point that the Police Federation has been endeavouring to make for more than two years…It appears to the Police Federation that the only possible way to ensure that the molesters of very small children are brought to trial, is to amend the law to permit video recordings of interviews between such children and a suitably qualified adult, to be admissible in evidence".
The amendment has the support of the National Children's Bureau, the Association of Directors of Social Services and the National Council of Voluntary Child Care Organisations which includes

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organisations such as Dr. Barnardo's, the Church of England Children's Society and the National Children's Homes. I have had letters from magistrates. I have also had a deeply distressing letter from parents who alleged that their children had been sexually abused by a couple. The case was dismissed in the High Court. There was no evidence available because the nine-year-old child broke down. She was unable to speak because of her distressed and distraught condition.
I have consulted three medical centres—Oxford, Leeds and London. I also note that Mr. George Carman, QC, speaking on BBC "Newsnight" was in favour of the amendment subject of course to safeguards. Mr. Connell, QC spoke on the BBC "Nine o'clock News". He was in favour of video recorded interviews with an abused child.
As the noble and learned Lord, Lord Silkin, has said, at present the law, as it applies to child witnesses in criminal proceedings, seems to be biased in favour of the molesters. First, the law requires the child or adult to tell her embarrassing story in open court in the presence of the person who is said to have attacked her. As a social worker dealing with such children, I know that there is nothing more distressing to a child than to give evidence against her father or a cohabitee in front of a full court. Although a child may have been abused by her father, she nevertheless has a sense of loyalty to him. It is most extraordinary, but the child experiences the most terrible sense of guilt from having to speak against the father in court in an atmosphere the child is not used to. That is enough to strike many children down with terror, as evidenced by the harrowing scenes that have taken place in the Old Bailey during the past few weeks.
Secondly, if the child can be persuaded to utter, she must either understand the nature of an oath, or if she is to be permitted to give unsworn evidence she must understand the duty of speaking the truth. Many young children are capable of giving a good account of what has happened to them before they can understand an abstract concept such as "duty" or "truth". But if that is the case no court will listen to what they have to say.
Thirdly, a criminal court cannot act on the word of a young child who gives unsworn evidence unless there is corroboration. That means corroboration by something other than the unsworn evidence of another young child. Thus, a child molester can indecently assault a whole crowd of young children, and provided he neither confesses nor leaves medical evidence, he cannot be convicted however credible the children's story.
Fourthly, the hearsay rule means no parent, policeman, doctor or social worker is allowed to tell the court what the child said about the incident at the time it came to light. If the child gives evidence at the trial, nothing she has said earlier is treated as having an independent value, and if she does not give evidence at the trial, the court cannot listen to her earlier statements. Those of us who have dealt with such children are in many cases almost thankful that the case has been withdrawn; but that has meant that the molester has gone free.
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I shall turn in simple terms, and from a practical point of view, to what we hope will happen. Immediately after the event has taken place or has been reported—it has often taken place a long time previously—we hope that there would be a video recorded interview with the child, possibly with an experienced policewoman and one other person, in pleasant surroundings in a room which does not produce the fear and trepidation that a courtroom does.
The video recording would be made available to the defendant and his counsel before the court hearing. The video recording would be available to the prosecution and the defence. When the case comes to court the judge should decide whether the video recording should be admissible or not. Based on the video recording, the child can be questioned in court or in another room by both prosecution and defence counsel. If the child, having heard the video recording, is asked whether it is true and agrees, she need not come into open court and give evidence in front of her abuser. There is a difficulty if the child gives a different story. The matter is then for the court to decide.
I have taken medical evidence on this point but when a child is found to have been abused that child must have medical treatment and therapy. A child often does not come before the court for two or three months. In my experience the child tells the same story—the facts are the same—but is then not in such a confused, distressed or unhappy state. In that way, the trauma to the child is minimised.
There is another aspect to this problem. Where the system is used in other countries, in many cases when the video recording is presented through the abuser's solicitor to the defendant, the defendant pleads guilty. From colleagues in Canada and America I understand that if the man pleads guilty he is of course sentenced, but there is not the terrible, dramatic trauma and distress of a full court case. There are of course cases where the defendant pleads not guilty. That man rightly has every possible help with his defence.
I speak for all of those and all of my colleagues who deal with abused children, their mothers, the family and the abusers. I hope that the Committee will be able to accept the amendment.
5.45 p.m.
Lord Edmund-Davies: I desire to add little to the moving speech made by the noble Baroness, Lady Faithfull. I merely want to say that we who support this amendment have thought deeply about the matter. I do not invite from that the inference that we have arrived at the right conclusion, but one mistake I can assure the Committee that we have not made is that we have not for a moment been unmindful of the necessity for the prosecution to prove the guilt of the accused.
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. One asks oneself quietly and unemotionally what the answer to the problem is. We have been burdened and distressed greatly by the volume of material that

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has reached us about children who have broken down in the witness box and failed to give evidence. The strain has been too much for them. In some cases, the delay has been too long. Health has been ruined. It does not stop there. There are a number of prosecutions which are never brought because the condition of the child is such that he or she is quite unfit to give evidence. The prosecution is therefore never launched. Those cases call aloud for some degree of attention.
By this amendment we seek to draw attention to that very great blot on our administration of justice at the present time. That must be right. What may well be wrong is the manner that we have adopted—although to the best of my small ability—in doing what we have done. It is naturally open to fierce attacks. Let there not for a moment be suspicion that we have forgotten the fundamental principle about which I have reminded this Chamber—to do the best one can. We have done the best we can. I thank you.
Lord Denning: I support the amendment in the strongest possible terms because it ties up with what I have recently said about closed-circuit television. As we have heard today, this will mean equipping a room next to the court where the judge and jury are. Who will go into this next door room? As we heard in answer to my last question, it will be specially equipped. But who will be there to examine the child? We have heard that counsel will be there—presumably counsel for the prosecution and for the accused. Who else will be there? I should have thought that the judge ought to be there so that he can ask questions of the witness or the child.
In other words, in that next door room one will have a miniature court with all the difficulties associated with it. The only people absent will be the jury. That system will not work with regard to child cases. In getting at the truth, the statement made by the child immediately afterwards, or as soon afterwards as possible, to a caring person who understands will carry conviction, if it is true, far more than any statement in a court of law later.
This clause will allow the video-recorded interview to be shown without the cross-examination and so on. It will allow that conversation to be recorded by a social worker, a woman police officer; or perhaps a doctor, too; someone sympathetic. The conversation between the child and that worker will be video-recorded. I would suggest that in any ordinary circumstances it is probably the best evidence available even though it is not subject to cross-examination and so on. It is recorded soon after the event. In other words, the recorded interview is to be an essential part in providing justice to the children. Let us remember that the judge will be there when the recorded interview is tendered in evidence. He will be able to examine it to see whether it should be allowed. With those safeguards it seems to me that this amendment should be accepted. I hope that Members of the Committee will so decide.
Lord Campbell of Alloway: I wish to support this amendment. The noble and learned Lord, Lord
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Silkin, spoke to both Amendments Nos. 38 and 39. I shall be very brief.
On Second Reading of this Bill, I took three points. First, should not a video-taped interview with a child be admissible? Secondly, ought there not to be a relaxation of the hearsay rule which excludes the immediate and first complaint? Thirdly, ought there not to be an amendment to the rules of corroboration? Amendments Nos. 38 and 39 are much to be welcomed. They meet in substance all these points. They meet them in a constructive and workmanlike fashion which is fair both in protecting the children and in safeguarding the alleged child molester who is wrongly accused.
Although I wholeheartedly support both amendments, in one aspect perhaps they do not go far enough. I would respectfully draw the attention of the Committee and the Minister to what I said at col. 1299 on 27th April about the state of Colorado's exception to the hearsay rule about complaints of children in such cases; making them admissible. I do so in the hope that perhaps at some later stage in this Bill consideration might be given to an even further relaxation in that regard.
Lord Harris of Greenwich: Let me begin by saying that I very much accept that powerful advocates have spoken in favour of these amendments, among them the noble and learned Lord, Lord Silkin, the noble Baroness, Lady Faithfull, who has had immense experience with regard to treatment of children, and the noble and learned Lord, Lord Edmund-Davies. It is also true that there has been widespread public concern about some recent cases; in particular one highly publicised case at the Central Criminal Court. I do not doubt that there are many in this Chamber and outside who would agree with the general approach of these amendments, and in particular the first.
There is, however, one matter which gives me some concern. I had no difficulty with the introductory part of the amendment. I take the point of the noble and learned Lord, Lord Edmund-Davies, that there is advantage in getting a video-recording soon after the alleged offence. That is a persuasive argument. One has to recognise the immense gap of time that sometimes exists between the commission of the alleged offence and the trial at the Crown Court.
Perhaps the noble and learned Lord, Lord Silkin, or indeed the noble Earl, will help me with this matter. I take the point that the noble and learned Lord, Lord Denning, made that discretion for the trial judge is provided in subsection (3) of Amendment No. 38. However, we then come to subsection (4). As I understand it, it is said that there is nothing to prevent the child who has been interviewed from giving evidence in person. If that child gives evidence in person there is no objection to the child being cross-examined. But what happens if the prosecution, having won its argument on subsection (3) of this amendment, says, "I have no intention of calling the child"? The man concerned may be facing a charge on which, if convicted, he could be sentenced to 10, 12 or 14 years' imprisonment, or, in some cases, life imprisonment.
Lord Hailsham of Saint Marylebone: Life.
Lord Harris of Greenwich: What happens if, through counsel, he is then denied the right to cross-examine that child because the only defence he has is a direct attack on the evidence of the child who said that he committed the offence? If we are to have video recorded interviews in future, there has to be an absolute requirement that the child has to be available for examination at the trial, otherwise I fear there is a real risk that in some cases there will be a grave miscarriage of justice.
6 p.m.
Lord Hailsham of Saint Marylebone: I make these observations with very great diffidence and even greater reluctance because this amendment has been supported from all quarters of the Committee. It has been supported by noble Lords for whom I normally have the deepest respect and it is backed from outside by organisations such as the National Society for the Prevention of Cruelty to Children and the Church of England Children's Society, which I am in the habit of supporting and which my family has supported for very many years.
I hope that before the Committee accepts the amendment it will realise what my understanding is of what it is required to do. In relation to an earlier amendment I said that we must remember that 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. We must do nothing to mitigate that in what we do, simply out of our detestation of the offence or our sympathy with the victim of it. whether it is murder, rape or molestation of a child. Indeed from one point of view the more detestable the offence the more important it is not to undermine either the burden or the standard of proof.
I quite understand from my noble and learned friend, Lord Edmund-Davies—who is one of those whom I referred to among those for whom I have the greatest possible respect—that the amendment does not mean to do that in the least. But let us consider quite coldly what it is we are being asked to do with this amendment. It is utterly different from the amendment which we were discussing some time ago, although both are concerned with video interviews and both are concerned with the difficulty facing those of us who have participated in trials of child molestation or rape (or rape of adults for that matter). The difficulty is not the fact that the judge is wearing a wig and it is not concerned with the formality of the court. It is that it is intrinsically extremely difficult for a victim to relive his or her experience in public and to recall it in words, possibly after a period of months.
The earlier amendments sought to get rid of that problem, and I agreed with them, by having a means of screening—perhaps by means of a video apparatus in an adjoining room—the alleged victims from the accused himself whom they very likely fear when he is seen across the courtroom in the dock. Such screening would still allow counsel and the jury to see the evidence at the time of the hearing and to hear the
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victim cross-examined by counsel representing the interests of the accused—a difficult, responsible and a sometimes extremely unpleasant task which counsel has in the nature of things to perform in the interests of justice.
If I have not mistaken it, this amendment does something completely different from that, different in kind and different in purpose. As I see it, there is a preliminary recorded interview which has to be undertaken by leave of the judge—though I do not quite know how that is to be done if it is to take place as other speakers have suggested immediately after the alleged assault because there is no judge in such a case. It bypasses the committal proceedings completely. It also bypasses (if I have not misread subsection (4)) the giving of evidence at the trial, whether by video link, closed circuit television or by the separate room referred to by my noble and learned friend Lord Denning. It bypasses the necessity for the victim to give evidence at all. Subsection (4) makes that absolutely plain. It makes it absolutely plain that the child, the victim, may give evidence but does not have to. The victim may give evidence against his accuser before the jury but does not have to. What is provided by the clause, subject to any discretion that a judge may choose to exercise under the latter subsections—but how judges are expected to exercise such a discretion I am bound to say I do not quite know—is that a person will be convicted of a serious assault upon a child without that child having given evidence at all, on the basis of an interview video-recorded before the case had started and without any right of cross-examination or any necessity whatever for the child to attend the trial—
Lord Paget of Northampton: Or corroboration, my Lords.
Lord Hailsham of Saint Marylebone:— and as the noble Lord opposite quite rightly says, in theory at least, also without corroboration. No doubt the judge will have to warn the jury of the danger of recording a conviction without corroboration. He does so in every child case at the moment. If he does not, the conviction is invariably upset. The judge also has to tell the jury in such circumstances that they may, nonetheless, convict on the uncorroborated evidence of a witness, and that is what he would have to do under the present proposals.
I must say, even if I stand alone on this matter, that I think this is a revolutionary suggestion put forward with the best motives by a number of extremely well-informed and responsible people but which is nonetheless revolutionary for that. It must undermine both the burden and the standard of proof required before one has conviction of an absolutely detestable crime.
I wonder whether the Lord Chief Justice has been consulted. My noble friend Lady Faithfull said that various bodies supported this, but I wonder whether the working judiciary—who will have to operate this scheme if it is adopted—have been consulted on its operation or even on its draughtsmanship. I hope that the Committee does not run away and fail to understand the nature of what it is doing, because in

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this important field of law it seems to me it is acting flatly in contradiction of all the established rules of criminal procedure.
We have seen in recent months a good deal of cause to question the methods of interrogation of children done at interviews by those who mean them well. I had cause to remind one of my noble friends on the Front Bench about the methodology adopted in the Cleveland cases where so-called explicit models have been used and suggestive questions put forward and total ignorance has been shown of the tendency of the child to give the answer he believes the adult wishes to hear. I really do wonder whether we are not being bounced into this and I should like to think about it a great deal more before I gave my adhesion to it.
Lord Simon of Glaisdale: The Committee has now had the inestimable advantage of hearing well-informed arguments from extremely experienced people on both sides of this question. In one respect this proposal is not as revolutionary as it might appear at first sight. The hearsay rule is already subject to this exception. If there has been a sexual assault the person who has been assaulted, the complainant, can give evidence, and other persons can give evidence to the same effect, that a complaint was made immediately or shortly after the alleged assault. But that is not evidence of the fact of the assault. It is merely evidence of consistency of conduct. I am glad to see that my noble and learned friend Lord Hailsham agrees with that statement of the law. The judge will very carefully direct the jury that they are not to take such a complaint as evidence of the alleged assault.
This proposal goes further. In the first place it is not limited to sexual assaults. I do not think my noble and learned friend was quite right in saying that the complaint must only be received with the leave of the judge. The requirement is that it should only be admitted in evidence if the judge consents—
Lord Hailsham of Saint Marylebone: That is what I intended to say.
Lord Simon of Glaisdale: This proposal is revolutionary in two respects. The first is implicit in what I have just said in that the fact of the complaint and the subject-matter of the complaint is evidence not merely of consistency of conduct but of the guilt of the accused; namely, that the offence was committed. The second respect—and this point was made both by the noble Lord, Lord Harris, and by my noble and learned friend—is that there is no requirement for the complainant to give evidence at all or to be subject to cross-examination. I suggest that we ought to have an open mind about the admissibility of a complaint immediately after the alleged offence as being evidence that the offence has been committed. It would require very careful direction by the judge of the weight to be given to such a complaint. It seemed to me that the objection raised by the noble Lord, Lord Harris, and by my noble and learned friend is quite conclusive. One cannot allow this kind of evidence to be adduced as evidence of the offence without any opportunity being given to the defendant to test it.
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I therefore make the plea that the noble and learned Lord, Lord Silkin, should withdraw this amendment and allow more thought to be given to the whole subject-matter, it being viewed sympathetically but nevertheless being subject to the fairly onerous objections that are being put forward against it, in particular to the fact that the statement would be evidence of guilt without any possibility of it being tested on behalf of the defendant.
6.15 p.m.
Lord Paget of Northampton: I should like to say one thing to the noble and learned Lord, Lord Hailsham. He most emphatically will not be alone. I have not always agreed with what he has said and we have clashed on occasions. But tonight I thank him very profoundly. I hope also that what the noble and learned Lord, Lord Simon, has said as to the withdrawal of this amendment will be attended to by my noble and learned friend.
The noble Lord, Lord Campbell of Alloway, referred to the bringing in of evidence; the immediate complaint. I do not find it in the amendment. It is not there. If it were there I would agree with that, it being very clearly understood, as the noble Lord said, that that would be evidence not of the facts stated but of the consistency or inconsistency of the child from the start.
Lord Campbell of Alloway: The noble Lord misunderstands me. I was not referring to that in relation to Amendments Nos. 38 or 39. I was only asking for consideration to be given to the situation which would produce this, which was the law of the state of Colorado.
Lord Paget of Northampton: I should like to talk a little about my own experience in this matter. I am the father of four adopted children who were war orphans. All of them are now the parents of very happy and successful families. It was an arrangement which could not have gone better but it taught one something about children. Children do not speak the truth naturally. Truthfulness is no part of human nature; it is part of the education of a child and nothing else. The point at which a child begins to have any respect for truth is the point when his education begins to succeed. In the normal way children live so much in a world of their imagination. Another point is the tremendous and emotional suggestibility of children.
When the noble Baroness, Lady Faithfull, was speaking her warmth, passion and belief came very much to my mind. I do not think there is a child who would disagree with her for five minutes. Any evidence which she obtained in those circumstances is evidence I would find totally unreliable. That applies so much to social workers. The intensity of their feeling is injected into the child. There are very few children particularly in a girls' school who are not passionately in love with some of the mistresses—one or more. Children are very loving little things, particularly girls. They fall tremendously under the influence of the desire to please. It is not bad. It would be a bad schoolmistress whose pupils did not often fall in love with her. She must not exaggerate it. She must not take it too far.

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Children of three and four and under can be passionately in love, and to adoration is a very short step. I disagree with the idea that the words of those children shall bring utter ruin to an accused and everything shall be built up in these artificial circumstances, with the possibility of this awful injustice so apparent. I find myself entirely with the noble and learned Lord, Lord Hailsham, in this. This is not an amendment that we should have.
Lord Hutchinson of Lullington: Perhaps I may make a contribution to this debate as one who has had to cross-examine a lot of children in my time. It is the most agonising job you can possibly have as a cross-examiner.
Lord Paget of Northampton: I could not agree more.
Lord Hutchinson of Lullington: May I go a little more deeply into what we are discussing and put in a plea that at the end of our debate we should give time for further thought and further consultation before taking any decision on the matter?
I should like to make myself clear as to my views at the moment. I agree entirely with the abolition of any requirement for a child to take an oath; the abolition of the complex rules of corroboration; the abolition of any requirement for the child to give evidence at the commital proceedings: no child to be examined at a police station; and the power of a judge to withdraw a case at any stage. I would personally commend the attitude of the Government in the other place at Committee stage, which seemed to me to be absolutely admirable because it came to be, "Wait, while we carry out the research that we have under way".
If it is essential, as I think it is, to sweep away the oath and corroboration then surely the judge must have a duty to warn the jury of the dangers of convicting on the uncorroborated evidence of a child. Here it is only permissive in the amendment. It seems to me that it is similar to the situation when people give evidence of identification—that there are inherent problems about identification and about the evidence of children which do not appear necessary to members of a jury, and that therefore there should be a warning.
All the doctors seem to agree that whereas most young children tell the truth, in about 10 per cent. of the cases which are gone into it is found that children simply do not tell the truth. Therefore we have in any event the dangers of the 10 per cent. Children of course can withdraw absolutely from answering questions not only because of the appearance of the court and the lawyers but for a whole host of other reasons—fear, shame, guilt, and so forth.
I agree very much at the moment with the idea of the child giving evidence in another room through a video link in the presence of the judge and the advocates round a table, dressed in ordinary clothes, with the proceedings visible to the jury, the defendant and the public. That is a possible way of doing it.
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My other disagreement is really the one that the noble and learned Lord, Lord Hailsham, has spoken of so eloquently. I can see absolutely no way in the end that you can avoid direct contact between the child and the advocate. There is no way of avoiding that if justice is to be done. When a teacher, social worker, doctor or parent is accused and his or her whole career is at stake on the whispered words of a small and highly attractive child, you cannot possibly get rid of the contact between the advocate and the child.
The most difficult area seems to me the original video statement. We must go slowly here. My own feeling is that perhaps we could start with taking a video as the first statement of the child, to be exactly equivalent to the witness statement of the adult, but that the first statement taken by an impartial person should form the statement of the child which would go into the case simply as a statement. Of course if Clause 24 of the Bill regrettably remains, the judge would in certain circumstances by entitled to allow that video statement as he is at the moment going to be allowed to put in a witness statement, so that in that sense what is in this amendment would be already provided for in the Bill as it stands.
I have talked to doctors at Great Ormond Street, to lawyers in the Family Division, and also to psychiatrists at the Tavistock Clinic, and it appears that clinical diagnosis of children, examining them and so on, is totally different from forensic diagnosis. In the clinical diagnosis—and indeed it is not even agreed among the experts what is the better way of going about it—you will ask leading questions repeatedly in order to discover whether the child is a child who answers the questions in the way that it hopes the questioner wants it to answer. Therefore you will want to ask that child a great number of leading questions in order to form a view on whether it is telling the truth or simply going along with what one is putting to it. Of course in a forensic diagnosis it would have to be absolutely the opposite—never asking a leading question at all.
At the moment all the expertise in this matter is limited in the country. We will legislate for the whole country, but at the moment the expertise is limited in certain areas and is still progressing and developing. It would be the greatest possible danger to put absolute trust in an original statement and to make that original statement the key document in any trial, because then that original statement would become such a formality, and become so overwhelming in importance, that it would be extremely difficult to do justice to the person accused.
There must obviously be more pilot studies just as there were with tape recording. Surely a real attempt could be made to achieve consensus between the medical side and the legal side. Above all, the one point that really matters is the welfare of the child. Securing a conviction may not necessarily help or protect anybody. Some child molesters are pathetic and inadequate people. The spectrum of this whole matter is very broad.
I understand that there is a great increase at the moment in passive abuse—that is, making children watch horrific videos, or making children watch horrific behaviour between adults. You have that at

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one end of the spectrum and at the other end you have the pathetic old man who sits in the park giving out sweets to children who collect there every day and taunt him, and then indulge in what they call "rude things".
This whole spectrum of sexual matters in relation to children is so broad that I urge the Committee not to jump before further inquiries have been made and further attempts have been made to get a consensus between the professionals. I suggest that we build on the Bexley experiment and on the experience of the professionals. All of us must be pulling in the same direction on this highly important matter.
6.30 p.m.
Lord Mishcon: How right I think it was at the very beginning when I answered from the Front Bench the courteous challenge of the Minister as to where the Opposition stood on some provisions of the Bill! The one thing that I should have regretted very much, for the dignity of the Committee, is if, now that we have indulged in this debate—which has been painful for many people and certainly very mind-searching—the Division Bell had rung and people had wandered in who had not heard one single speech and cast their votes in one Lobby or another in a matter which affects the lives of so many of our children and others in the country. It has been a good debate. I should have thought those who talked about having to consider the matter further were correct.
I wish to give a personal view. The noble and learned Lord, Lord Hailsham—what a delight it is to hear his observations from whatever part of the Chamber they may come!—said that this was a revolutionary suggestion. I have heard him talk before about the need at some time for revolutionary suggestions, and he has become very impatient with those of us who thought that some of his suggestions were too revolutionary.
It may be that we have to make a revolutionary change when we are considering the alarming number of child abuse cases that appear to be occurring in this country and possibly generally in the world. I do not know what has caused it; I do not know whether in the past these cases did not come to light.
One of the difficulties with which we have to contend is this. There is no doubt that the appearance in a court of law of a child who is a witness or the complainant may do more harm to that child psychologically than the original assault—if assault there was. It is one of the exceptions to the general rule. One cannot talk in terms of a person who has been robbed being in a worse position through having appeared in a court of law when the evidence that he gives is the truth and it is believed. The case of a child who gives that evidence and gives truthful evidence is worse at the end of the day, whatever the result of the trial. Because one is looking therefore at what is an extraordinary happening in our courts and an extraordinary evil about which we have to do something, maybe we have, with care, to have a revolutionary change in these cases.
I was interested to hear the noble Lord, Lord Hutchinson, say that the evidence he had from some
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of his medical friends was that 10 per cent. of the children they saw told lies. I wonder whether doctors, if consulted about the percentage of their adult patients, would give such a low percentage. It appears that the children do not do so badly from the point of view of veracity. There are of course some children who, because they are imaginative, because there is some psychological upset or because they want to say what they think an adult policeman would want them to say, may well tell lies.
One of the errors that might have been made in the debate is that we have almost adopted the suggestion that what we are doing by admitting a statement of the kind that we are envisaging is saying that that statement will be deemed to be conclusive evidence of guilt. That is not what is said in the amendment. It is merely admissible evidence subject to all the safeguards that obviously would be administered in a court of law.
The one constructive suggestion that I have to make, if I may do it with the Committee's patience, is this. I was very much struck—we must be—by the dangers of a statement being admitted where there is no opportunity at all to cross-examine. I was conscious of the fact that there will be cases where there will not be that opportunity. It may be that the child falls ill; it may be that the child, as in the case that was brought back to our memories, is in such a state after first statements have been made that the child cannot go on to give evidence and the case has to be dropped. I am not content, and I do not think that Members of the Committee are, to see matters of that kind repeated; but there must be a safeguard.
I respectfully suggest that, among those matters set out in subsection (3) of the proposed new clause in Amendment No. 38 as to what the court has to take into consideration, we should include the consideration whether it is intended that the child whose statement has been taken is to be called as a witness to give evidence so that the accused is able to cross-examine. It may be only in those cases where medical evidence is such that the child ought not to give evidence that the judge would even consider admitting the statement. That may be the safeguard that we should have.
We cannot leave the situation so that there is a video link only. We must somehow or other—in addition to all the protection to the accused by way of the principles that the noble and learned Lord and other noble Lords have adumbrated and repeated this afternoon—ensure that the situation is not to be left in this way by Parliament. The spirit of the amendment is right, but we may have to do something to procure appropriate defences and protections in order to deal with the accused. Something along these lines, I suggest, must be done.
Lord Hooson: I have considerable sympathy for the amendment. It is the most constructive effort that I have seen to deal with this very difficult area of the law.
From the point of view both of the prosecution and of the defence, there appear to be great advantages in having a video at the first opportunity that occurred to interview the child as admissible evidence. I have difficulty in estimating what weight should be given

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to that evidence and whether it would be right—which I doubt—for this to be the sole evidence upon which conviction might be based. That, I think, would be wrong.
As I listened to the debate, my mind was taken back to a book that I read many years ago—a very good book—A High Wind in Jamaica by Richard Hughes. Among its merits is a remarkable description of a trial at the Old Bailey of pirates in the West Indies on twin charges of piracy and murder.
It so happens that in the book the children were present in a cabin with the Dutch captain of the boat and their loyalty, during the exciting time when the pirates took over the ship, gradually shifted in favour of the pirates. When the captain of the ship (who was tied up) was rolled over by rope towards a knife, one or more of the children picked up the knife and stabbed him to the heart in order to prevent their favourite pirates from being apprehended.
Continuing the novel, a year or so later they were giving evidence at the Old Bailey, and of course the expectation had been built up of them—the expectation by their parents, of the media and of the police in their interviews—gradually affected the children. They could not bring themselves to say what had actually happened out of loyalty to each other. They could not bring themselves to bring evidence that the pirates had done it, as everybody assumed they had, because they knew that would be wrong. They over-dramatised the situation because of the atmosphere of expectation that had grown around them. And at the trial it is described how they broke down at the vital part of the evidence and the judge discouraged any further cross-examination. Everybody assumed by inference that the pirates must have committed the murder, and they were convicted.
It is a very interesting study of the reaction of children in this situation. However, in respect of this kind of evidence—if you translate this evidence to that situation—if one had seen the early interviews of the children it would have been of infinite help to the defence. There is a great deal to be said for going in this direction. I do not pretend to be able to estimate how children react in a given situation. They can be the greatest witnesses of truth possible and they can be the most imaginative witnesses of untruth as well. If we were to move in the direction of this amendment it would be of great benefit generally in the discharge of justice. The only thing that requires maturer assessment is the weight to be given to this evidence and whether it would be possible—I do not think it would be—for anybody to be convicted on this kind of evidence alone.
Baroness Macleod of Borve: Perhaps I may very briefly thank my noble and learned friend Lord Hailsham for giving us such a wonderful example of his brilliant knowledge not only of the law but also of people. I go along wholeheartedly with what he said and also with what other Members of your Lordships' Committee have said. I hope that the Government will either throw this out or take it away.
6.45 p.m.
The Earl of Caithness: Before I come to the amendment, I should like to say at this stage that the noble and learned Lord, Lord Silkin, the noble Lord, Lord Hutchinson of Lullington, and my noble friend Lady Faithfull referred to corroboration, which refers to Amendment No. 39. I do not wish to say anything about that amendment, which is entirely separate; so I hope the Committee will not think me discourteous if I do not refer to it at this stage. I shall have something to say about it later.
This amendment has led us—I agree with the noble Lord, Lord Mishcon—to a most excellent debate on very difficult and important issues. We are concerned with the question of whether a video recording of an interview with a child—conducted, say, by the police or social workers—should be admissible evidence in subsequent criminal proceedings. While the clause covers all proceedings, I am sure that the main concern your Lordships will wish me to address is whether the evidence should be admissible at trials of alleged child abusers. I shall limit my remarks to such cases.
Before dealing in detail with the issues raised by this clause, I think it would be helpful if I set our debate in the context of what the Government have done and are doing to combat the evil of child abuse. I am only stating the obvious if I point out that we keep under review the criminal law which protects our children and we are ready to change it as quickly as possible if a gap is revealed.
The Police and Criminal Evidence Act 1984 enables the prosecution to compel a spouse to give evidence against a person accused of a sexual or violent offence against a person under 16. It permits the court to treat unjustified refusal to provide the police with an intimate sample as evidence corroborating, for example, the unsworn testimony of a child victim of a sexual assault.
The Bill before the Committee will increase the maximum penalty for cruelty to or neglect of a child from two years' to 10 years' imprisonment. In the clause which we have just debated, it will permit children to give evidence at the Crown Court by closed-circuit television in cases of sex or violence, thus sparing them the trauma of repeating their story in the presence of the alleged assailant.
Our consultation paper, The Use of Video Technology at Trials of Alleged Child Abusers, published earlier this year, sought views on precisely how this scheme should be implemented. We are grateful to those who have commented on this and also for the helpful suggestions made by several of your Lordships when we debated this clause.
My right honourable friend the Home Secretary has asked a group of experts—police, social workers, doctors and others—to prepare draft guidance for the police on the investigation of child abuse. This guidance is in an advanced stage of preparation, but clearly we must await the findings of the Cleveland Inquiry before it can be issued so that it can take account of recommendations made by that inquiry.
On crime prevention, we have been operating a publicity campaign for some years based on a set of

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easily understood rules for children to follow. In addition, the National Standing Conference on Crime Prevention has set up a working group to review existing publicity and publications, and to make recommendations. I understand that this group will report back to the standing conference shortly.
We are reviewing the disclosure of criminal backgrounds of those seeking to work with children. New arrangements have already been introduced to cover some groups, and others are in preparation. In the last Parliament we disapplied the Rehabilitation of Offenders Act 1974 to those working with children, so that they must declare spent convictions and may be excluded or dismissed because of such convictions.
My right honourable friend the Home Secretary has made it clear that those sentenced to life imprisonment for the sexual or sadistic murder of children must normally expect to remain in custody for at least 20 years; and those sentenced to more than five years for abusing children will be granted parole only when release under supervision for a few months before the end of the sentence is likely to reduce the long-term risk of reoffending, or in circumstances which are genuinely exceptional.
So far I have mentioned only initiatives coming from my own department; but tackling child abuse goes beyond the responsibilities of just the Home Office. What we in the Home Office are doing is only part of a wider programme which is kept under review inter-departmentally. I am sure we are all agreed that good practice to reduce and manage child abuse depends largely on close working between local agencies: the social services, the police and the health, education and probation services. Last year the DHSS issued a draft circular for inter-agency working which has been well received but which elicited a large number of comments. As with our own circular to the police, this important document cannot be issued in its definitive form until we have received the recommendations of the Cleveland Inquiry.
The DHSS has also set under way a training initiative, the second stage of which was announced earlier this year. So far it comprises six projects, including an Open University introductory course suitable for any of the professions, a training consultancy based on the National Children's Bureau and work at Great Ormond Street and the NSPCC. My right honourable friend the Secretary of State for Social Services will be keeping them under review to see what more is needed. These special projects are of course additional to the steady work to improve the standard of practice of local agencies working with families with children. Good preventive work is as important as rapid and sensitive action when abuse is disclosed and the DHSS has a continuing programme of support for this important aspect of our response.
Our White Paper published in January outlined our proposals for legislation on child care and family services, and I know that many of your Lordships eagerly look forward to debating that Bill. I believe it was right to set the scene so extensively because our record shows that we are more than ready to take action and will not shrink from radical reforms if we
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think they are necessary. But reforms must be justified and worthwhile. This is an emotive area. We must all beware of letting our hearts rule our heads. Proposals for change must be thought through and we must be certain that they will assist rather than simply hope that some good will come of them.
In the field of criminal law, which we are now debating, I think we need to consider two things when reaching a decision. First, how far will what is proposed actually benefit the child? Secondly, is the change in the interests of justice? It is in the interests of justice to see that a child victim is spared unnecessary anguish and that child molesters are punished. No one would disagree with that; but it is also in the interests of justice that an accused person is assumed to be innocent until a jury returns a verdict of guilty and that he receives a fair trial. Again, the noble and learned Lord, Lord Edmund-Davies, reminded us that we must not lose sight of that aspect of justice.
I take up the point of the noble Lord, Lord Harris of Greenwich, who was very ably supported by the excellent speech of my noble and learned friend Lord Hailsham of Saint Marylebone, the noble Lord, Lord Hutchinson of Lullington, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Paget of Northampton. One of the elements upon which a fair trial rests is the right of the accused to test the evidence against him. I do not wish to scrutinise this new clause with undue severity, but as it stands I am unclear about the defendant's right to test evidence tendered in this form. It speaks of the child "not being prevented" from giving evidence. Does that mean that the accused would be able to insist on cross-examination? If subsection (4) is intended to preserve the right of cross-examination of the child then, for reasons to which I shall come, I do not believe that this procedure will provide any significant benefits for the child. If this right is not preserved, then the rights of the accused to receive a fair trial would be seriously infringed. We could not support any proposal which undermined that fundamental aspect of our criminal justice system.
The Committee will be aware that in our consultation paper issued in May we sought views on whether video recordings should be more readily admitted at trials of alleged child molesters. Those tapes will, in the main, be prepared for the purposes of criminal proceedings or a criminal investigation. Under Clause 24 of the Bill there will be a presumption against admitting them, although the judge may allow their admission if he considers that he should so do in the interests of justice. I think it is worth recalling that in our debates on Tuesday evening Members opposite argued that even those limited relaxations of the law of evidence went too far.
The noble Lord, Lord Hutchinson of Lullington, although he was much more moderate tonight, spoke with great passion of the principle that untested evidence is inherently unreliable. He argued that the principle that no person should be convicted on untested evidence was—as he put it—one of the guarantees of a fair trial. The noble Lord, Lord Irvine of Lairg, moved an amendment the effect of which would have been to remove even the limited degree to

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which we propose that video recordings should be capable of being admitted.
As I explained, we need to consider any proposal against the twin tests of benefit to the child and interests of justice. We have not found it easy to reach a decision on video recordings but on balance we feel that easier admissibility would not meet those tests.
Most cases of alleged child sexual abuse do not end up in the criminal courts. This may be because there is insufficient evidence for a criminal prosecution, or because a prosecution would not be in the best interests of the child, or for other reasons. The important point is that most children who allege to the police that they have been sexually assaulted will not in the end have to give evidence at the Crown Court. At present a video recording of a disclosure interview with a child can ignore the strict rules of criminal evidence. Those are the kinds of tapes referred to by my noble friend Lady Faithfull, which are being made under the experiments at Bexley, and indeed at Newcastle, in Lancashire and other places. Such a tape may contain material which is irrelevant or inadmissible at a trial and the interviewer may use such techniques as leading questions and prompting. This freedom to gather as much information as possible by several methods is one of the main reasons why tapes can be such a useful aid to investigators. In one interview they can obtain from the child the information necessary for criminal investigation, care proceedings, medical treatment and therapy. That means that the child has to go through only one disclosure interview. The police, social services, doctors, psychiatrists and other caring agencies do not need to re-interview the child; all they need to do is watch the tape. All this would inevitably change if we enact that video recordings are readily admissible at trial. I need do no more than refer the Committee to the eloquent speech of my noble and learned friend Lord Hailsham of Saint Marylebone on this point. Indeed, the amendment recognises it because it would require the Secretary of State to issue a code of practice on how such interviews should be conducted.
Most of those who favour this move must accept that interviewers would have to be trained and that interviewing techniques would change. But those would not be the only changes. A tape prepared for possible criminal proceedings would be quite different from a tape prepared for medical or therapeutic purposes. It would not contain the same material and it would not use the same interviewing techniques. I fear the inevitable conclusion is that one disclosure interview would no longer suffice. During the investigation of the allegation, the child would have to relive her assault at least twice; once for possible criminal proceedings and once for all other agencies who need to know the story. Even if the Committee considers that the benefits at trial justify this—and I have doubts about that—what of the majority of children whose cases never reach the criminal courts? There are no benefits for them, but only a doubling of the trauma of investigation.
Let us turn to those cases that do reach court. Here the arguments appear to me to be particularly finely balanced. On the one hand, I can see that a recording
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made soon after the events to which it relates is likely to have an immediacy and freshness which would make it valuable to the court, and, viewed purely as a matter of principle, I can see no great objection to such recordings being admitted as evidence. It is also possible that admitting tapes might increase the number of guilty pleas, although it should be remembered that there is nothing at present to prevent a tape, where one exists, being shown to the suspect, and sometimes—as in a recent case—that brings about a confession.
On the other hand, we need to be clear that such a change would actually be effective, in the sense that I have described; that is, that it would make things appreciably easier for the child and contribute to a just result. On that score, I can see much greater grounds for doubt than those who support the amendment have so far been willing to admit.
Even with the introduction of closed circuit television, giving evidence will not be an easy experience for a young child. She is bound to be nervous, not to say afraid. I accept that repeating her story in response to questions from the prosecutor will be an upsetting experience. Would watching a tape of herself that was made some time earlier be all that much better for her? I can see it may be some improvement but I wonder whether it would be a significant benefit. Any possible benefit must be weighed against the undoubted disadvantage of her first experience of questioning being by defence counsel. Without a tape the prosecutor can settle the girl and get her used to being questioned about a traumatic incident; her first experience of the court is of being questioned by someone who appears to believe her story. In contrast, if a tape is to be of much use it should replace entirely examination-in-chief. The girl is not acclimatised to talking about her assault; she watches a distressing tape of herself describing the assault and is immediately faced with hostile questions from defence counsel who appears to disbelieve her entire story. Surely that is far more damaging to the girl and far outweighs any benefit from the fact that she has not had to repeat her story to the prosecutor.
The purpose of cross-examination is to test the truth and credibility of the evidence given by a witness. In child sex abuse cases the main witness will be the child. If the accused pleads not guilty he is stating that the child is lying and is not credible. His counsel will have to establish that in cross-examination. Of course, counsel will not bully the child, but he will test her evidence and test it well because that is his duty. Some commentators on our discussion paper felt that defence counsel would not press the child hard because that would be counterproductive with the jury. That overlooks the simple fact that unless the defence can raise a reasonable doubt as to the child's credibility the prosecution have made out its case and the accused will be found guilty.
This means that, if tapes are admitted on a regular basis, a child may very well be faced with increased stress. In cross-examination she is required to reconcile the statement on the tape made some time earlier with her present recollection. Most people's recollection of events changes slightly with time.

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Admitting a video tape may encourage more detailed cross-examination in the hope that discrepancies emerge, discrediting the witness. Again, admitting a tape seems likely to disadvantage the child rather than decrease her distress.
The majority of commentators on our discussion paper were in favour of readier admissibility of video tapes. But I have to say that most of them failed to address the point we made in that paper that this might make cross-examination a far worse experience for the child than present arrangements. The benefits that most saw in favour of video tapes would not materialise unless the defence failed to exercise their right to cross-examine or that right was removed by statute. Video tapes were seen as likely to reduce the distress suffered by children. But a close reading of the replies showed that this would only be so if the tape was the sole evidence received by a court and the child never had to give oral evidence. But as I have made clear, that cannot be so if the accused is to have the benefit of a fair trial. I have to put to the noble Lords who favour this clause that most of the supposed benefits of tapes would not occur unless we removed the right to cross-examination.
I should like to say a word about video recordings of interviews. There is growing interest in the use of video recordings of interviews with victims. This helps to avoid the need for the child to repeat her story and provides a means for others, who need to know of her experience, to see the interview. The videos can be of use, for example, to social workers involved with other members of the victim's family, doctors and senior police officers concerned to review the case. As suggested by the noble Lord, Lord Hutchinson of Lullington, they can be used to replace the statements which would be taken from an adult.
It is precisely because these recordings are so useful to a number of professions that they are not in a suitable form for court evidence. As such they are completely different to the sort of recordings for court purposes we are discussing here. But, nonetheless, I agree with the noble Lord that we should continue our work in that field. These are difficult issues where the arguments are, as I have said, finely balanced. Quite legitimately, opinions will differ on the best solutions to these appalling cases. For the reasons I have given, and after a great deal of reflection, we have concluded that the Bill as it stands strikes the right balance on the admissibility of video recordings.
That is not the end of the road. I do not think it is right for me to say that I can take this amendment away and see if we can bring it back at a later stage. I agree with what so many of your Lordships have said. This matter needs a great deal more discussion than we have had to date. The door is open. We are all trying for the same solution. We want to make it better for the child as well as obtaining all the justice that is inherent in our system. I do not think that this amendment gets to that position; but I am not sure that we could come back by Report stage with something that would improve it. I think it is a longer process.
Lord Silkin of Dulwich: I am quite sure that all noble Lords who have been present during this
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debate will agree on one thing at any rate, even if not on the ultimate result. It has been an extremely good and valuable debate. The issues in this delicate and difficult question have been very fully canvassed. The problem at the end of the day is to reach a conclusion on which way the balance goes.
In the circumstances it seems to me that, as so often, the advice of my noble friend Lord Mishcon is sound. We should use this evening's debate as a starting point to see both sides—the government side and that of those who put forward this amendment—and to see whether there are ways of getting closer together than we have succeeded in getting after 96 hours of debate.
Noble Lords: Ninety-six minutes.
Lord Silkin of Dulwich: It sometimes felt like hours but I am prepared to accept that I should have said "minutes".
The question of ensuring that the possibility of cross-examination, even if the witness is not tendered for cross-examination, can he left open is a difficult one which, clearly, my colleagues and I have to consider. We have to consider whether, if that is not possible, one is justified in derogating in this type of case from some of the protections to which defendants have been entitled over the years; and whether such derogation goes substantially further than some adopted in recent times, for example, in cases of fraud, which I would not regard as important as this type of case. We have to consider whether those derogations are acceptable.
But those are only some of the points that clearly will need to be very carefully considered, not only by those here but also by the various organisations who have taken a strong view and have supported or promoted this amendment. In those circumstances, it seems to me that it would be right to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Davidson: Before moving that the House be resumed, I suggest we return to the Committee stage at 10 minutes to eight, if that is agreeable. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

European Communities (Definition of Treaties) (International Convention on the Harmonised Commodity Description and Coding System) Order 1987
7.7 p.m.
Lord Brabazon of Tara: My Lords, I beg to move that the European Communities (Definition of Treaties) (International Convention on the Harmonised Commodity Description and Coding System) Order 1987 laid before the House on 25th June be approved.
The purpose of this draft order is to declare the International Convention on the Harmonised Commodity Description and Coding System, with its

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Protocol of Amendment, to be Community treaties under Section 1(2) of the European Communities Act 1972.
The convention is normally known by its short title of the Harmonised System—or HS—Convention. It is the creation of the Customs Co-operation Council (CCC) the international body concerned with Customs matters. It has been designed to modernise and replace, as the basis for Customs tariffs and statistical nomenclatures, the current CCC nomenclature system which dates back to 1950. The aim of the HS Convention is to facilitate international trade, and by means of its unique coding system, the collection, comparison and analysis of international trade statistics.
The convention will come into force on 1st January 1988. Twenty-eight countries as well as the European Community are so far committed to its introduction in 1988. It forms the basis of the EC and UK Customs tariffs for 1988.
Parliament has previously had opportunities to consider the conclusion of the convention by the UK and the EC and has raised no objections. The need now to specify by means of this order as a "Community treaty" under the European Communities Act is a separate consideration.
The House may be aware that the Joint Committee on Statutory Instruments in its Second Report of the 1987–88 Session questioned whether the order under consideration would in fact serve any useful purpose. The Government believe that the draft order is necessary for the avoidance of doubt. We have proposed that the convention should be specified because the new Customs nomenclature which it sets up will replace the current nomenclature in the Common Customs Tariff of the European Economic Community. Even if in practice individuals will normally rely on the Community legislation to be enacted to classify those products within Community competence, certain provisions of the convention itself are also of such a nature that they could be relied upon as a matter of Community law by individuals.
Tariff provisions have been frequently held by the European Court of Justice to be of this character. We therefore believe that the more cautious approach involved in making this order is well justified. It simply has the effect in layman's terms of acknowledging specifically in UK law that the convention may be regarded in Community laws as being directly applicable. I beg to move.
Moved, That the draft order laid before the House on 25th June be approved. [2nd Report of the Joint Committee]—(Lord Brahazon of Tara.)
Lord Bruce of Donington: My Lords, the House will be grateful to the noble Lord for having introduced this statutory instrument. Your Lordships will be interested to know that when this matter was considered in another place on Tuesday 21st July last the Committee started its deliberations at 10.30 a.m. and finished them exactly one minute later, which I would say is an admirable example of brevity that is perhaps not always desirable in
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considering legislation of this kind. As is customary in your Lordships' House, we tend always to delve a little deeper than sometimes may be convenient when untimely hours present themselves in another place.
The sole purpose of my intervention is to obtain an assurance from the noble Lord. I was able to give private notice to his office earlier today in order to save time. Any system of reclassification of statistical matter—and this expressly deals with figures and with classification—is of very considerable importance to economists, to businessmen and others, and should be so to parliamentarians whose business it is over a period of time to be able to assess trends in the development of our economy and our trade, the nature and extent of the various components of our balance of payments, and so on.
I have not had the time, in the limited period during which the documents have been made available to me, to be able to arrive at any assessment of what effect the adoption of the new commodity description and coding system will have on our statistics, because it is not only the codification and description of the individual items that is involved; it is of course their grouping. Whenever we consider economic and trade affairs in this House we are bound to refer, for example, to those press notices that the DTI issues every month in regard to overseas trade and the balance of payments. Some of us may even refer to economic trends, to the monthly green book, to the income and expenditure accounts of the United Kingdom on an annualised basis, dealing not only with trade classifications but also with production.
I should like to ask the noble Lord whether adoption of the new system of codification and classification will affect the nature and content of the individual groupings of these various items in their summarised form as they appear in the DTI monthly statistics, where one finds, for example, exports of food, beverages, tobacco, basic materials, fuels, total manufactures, semi-manufactures and finalised manufactures. A significant shift as between those classifications of the component items—and there are hundreds of them that appear under the new codified system—in the groupings already incorporated in the summaries of our overseas trade would, unless specifically allowed for by a fairly elaborate footnote, produce a distortion between the new set of figures and those historically applicable.
That is something one is most anxious to avoid, because in order to assess trends, in order to arrive at objective views as to economic and trade developments, it is necessary, as I am sure the noble Lord will agree, to go back and compare. If one is to compare like with like, then one has a fairly accurate trend. But if, as a result of the introduction of this new description and coding system, there is to be in 1988 significant distortions within the groupings to which I have already referred, then it means that the new figures in their summarised form will not carry with them the same degree of confidence as the old, which have been with us for some time.
I must apologise to the House for detaining it so long on this point. However, I am quite sure that those of your Lordships who are concerned with

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statistical integrity, as I sincerely hope and believe the noble Lord opposite is, will understand the reason I have raised it.
Lord Lloyd of Kilgerran: My Lords, I join the noble Lord, Lord Bruce of Donington, in thanking the Minister for his succinct summary of a somewhat technical and complicated statutory order. I can well understand the anxiety of the Joint Committee of both Houses which was appointed to scrutinise delegated legislation. The committee expressed their anxiety in paragraph 4 of the second report and said that they had difficulty in understanding whether certain matters were clear under Community law. Members of your Lordships' House who have been associated, as I have, for nearly a quarter of a century with Community law realise that it is a very complicated matter and it is very difficult to get the right answer.
One of the questions which worried the Joint Committee—and I am rather surprised that they were worried about this point—was whether it was clear, again as a matter of Community law, that individuals in member states can assert rights under the treaty entered into by the Community with third countries respecting matters affecting common Customs tariffs. However, in the memorandum which was produced by Her Majesty's Customs and Excise and which is an appendix to the second report of the Joint Committee, that was cleared up because of the well-known Kupferberg case of 1982, which indicated in general terms the kind of rights of individuals which could be raised in this area.
Then the Joint Committee went on to say:
"the Department regard designation as desirable only 'for the avoidance of doubt'".
When they were referring to the rights of individuals they did not indicate what were those rights, and if your Lordships will look at the preamble to the international convention you will see that, like many preambles, it is in very general terms, because it states that the contracting parties to the convention desire to facilitate international trade. It then goes on to say—and this is something which we at the patent bar internationally like doing—that they desire to reduce the expense incurred by redescribing, reclassifying and recoding goods, and to facilitate the standardisation of trade documentation and the transmission of data. So the preamble indicates rather wide functions for the purpose of clarifying and facilitating international trade.
I have two points to raise. First, the patent offices of most countries in the world, particularly the Community countries, have methods of classifying goods. They have a form of classification or coding of goods. Perhaps the Minister can tell us, for the avoidance of doubt, how far the international convention will affect the patent offices of the Community, and certainly the United Kingdom Patent Office.
I apologise to the Minister for having only briefly told him about the matter that I am raising. I was asked to look at this 501-page document only this afternoon and therefore it may be that I am not quite as clear and well versed in its intricacies as I should be. However, I have indicated elsewhere (to advisers
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behind the Minister) that I would be, raising the question. I am sure that the Minister will be well briefed.
The reason that I have raised the question of classification of goods by trade mark offices and how far the convention will affect it is that only a month ago I was presiding in London over a seminar on the European Community trade mark. I do not want to go very deeply into those questions but the matter of how far the Community trade mark arrangements or procedures might be affected by an international convention of that kind was raised. I was not then aware that I would be landed with it today. We all hope that the Government will be giving strong support for the adoption of the European trade mark office in London, rather than on the Continent. It is about time that the United Kingdom had some share in the intellectual property management and procedures of the European Community.
My next question relates to certain legal aspects referred to so generally in the international convention volume which I have before me. It says on page 22, under the heading, "General Rules for the Interpretation of the Harmonized System":
"The titles of Sections, Chapters and Sub-Chapters arc provided for ease of reference only; for legal purposes, classification shall he determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require according to the following provisions".
We then have a most complicated page and a half which I am not proposing to read.
One of the extremely important legal functions of the Customs officers of this country—and perhaps in different ways in other countries of the Community—is that someone can notify Customs officers that certain goods which are being imported into the country infringe a particular trade mark. That trade mark will have been registered in the United Kingdom under the classification of goods. Therefore I return to my first question concerning whether or not and how far this new international convention will affect the classification of goods by particular patent offices and particularly the United Kingdom Patent Office.
A Customs officer can, of his own discretion, stop goods coming into the country because he says that prima facie the goods are infringements of trade marks and cannot come into the country. In cases that I have been personally concerned with that decision has stopped a business, or a substantial part of it, forthwith and almost overnight. Therefore, for the avoidance of doubt I hope that the Minister will be able to say that the terms of the international convention will in no way affect the functions and powers for legal purposes to facilitate international trade, reduce expenses of any legal proceedings and not affect in any way that standard procedure which is prevalent today. If I were asked to give a personal opinion, as I have not been, I should say that it would not be affected. However, the general terms and wordings of parts of the convention lead me to ask for the avoidance of doubt.
The last thing I wish to raise is a de minimus point and it may be that I have missed the answer. The Printed Paper Office (to whom I am very grateful for their research) gave me a copy of the instrument

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referred to in the second report. It is the Protocol of Amendment to the International Convention on the Harmonised Commodity Description and Coding System attached as in paragraph 2 of the schedule to the statutory order. The copy I have describes the protocol, mentions Brussels and 24th June 1986, and then says:
"The protocol has not been accepted by the United Kingdom".
The noble Lord, Lord Bruce of Donington, is smiling kindly at me and I am sure that he has the answer to my question.
In conclusion, perhaps I may also adopt the very concise and helpful observations and questions raised by the noble Lord, Lord Bruce of Donington.
Lord Silkin of Dulwich: My Lords, I should like to say a few words following but not on the same lines as those placed before the House by the noble Lord, Lord Lloyd, on a question of law to which the Minister also referred. However, I do not think he gave the full explanation which certainly is required.
The short point is that the code cannot take effect unless it is enacted by an EC regulation, as was intended. That prospective regulation has already been published in the Official Journal, L256, of 7th September of this year. My understanding is that once the regulation comes into effect it is totally unnecessary for us to bring the code into further effect through the operation of the European Communities Act. I understand that that is the point which was being made by the Joint Committee in its second report, which it summarised by saying:
"In these circumstances it does not seem to the Committee that to designate a Convention as a Community Treaty would serve any useful purpose".
I would go further than that and suggest that if we add to that by enacting what is contained in this Motion we shall cause confusion as to whether such a Motion is necessary and whether action is necessary by ourselves under the Treaty. That is notwithstanding the fact that the provision has become United Kingdom law by virtue of the regulation.
Those who are interested in these matters will inevitably say to themselves why have they taken this action and why have they not relied on the regulation. They are likely to go further and say there must have been some reason for it because the normal form and the normal understanding is that you do not enact the same thing twice over. There must have been some reason for it and we have to find out what that reason is. it seems that confusion will necessarily follow.
It is interesting to see how this matter has developed. My noble friend Lord Bruce of Donington drew our attention to the fact that the Motion went through the other place on the nod in less than a minute. I think it was at a late hour of the night. That took place before the Select Committee had issued its second report. The result was that the other House did not have the benefit before making its decision on the nod, of reading the report of the Joint Committee on Statutory Instruments. That is a powerful body with important legal membership. Therefore the other House was unaware of the fact that that body having gone into the matter in detail,
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was intending to report that the Motion serves no useful purpose.
Then it comes to this House, and we now have the opportunity of giving some effect to the provisions of the second report. This is the first time that the opportunity has arisen. It is perhaps unfortunate—and there is nobody to blame, I am sure—that the other House did not have that opportunity. Now that we have it would it be right in those circumstances to let it go through without a proper consideration of the view of the Select Committee?
That submission of mine has greater force by virtue of the various important points which were made by the noble Lord, Lord Lloyd, a moment ago which clearly require some answer. This cannot be a matter of urgency because the regulations become effective on 1st January next year. Would it not be sensible for the Government now to withdraw the Motion and perhaps refer it to the EC Committee of this House? They would no doubt wish to ask their legal subcommittee to consider the matter both in relation to the points raised by the noble Lord, Lord Lloyd, and this important procedural point which affects not only this matter but which may be a precedent for similar situations in the future. I hope the Minister feels in the circumstances that that is the right thing to do rather than seeking to force this Motion through tonight.
Lord Brabazon of Tara: My Lords, I am grateful to the noble Lords who have spoken on this Motion and I shall attempt to deal with the points which have been raised. I am most grateful to the noble Lord, Lord Bruce of Donington, for having given me advance notice of the question that he was going to raise. I shall attempt to deal with it in some detail.
The overseas trade statistics are generally compiled on the basis of the standard international trade classification system developed by the United Nations. There will be a change from SITC Revision 2 to SITC Revision 3 from 1988. SITC Revision 3 is based so far as possible on a one-to-one correlation with the harmonised system.
The extent to which the 1988 statistics will be directly comparable with those for 1987 and earlier years depends on the level of detailed breakdown used. It is not possible to be specific but at the higher divisional levels the movement of goods between classifications is not great so the statistics will remain largely comparable. At a more detailed level there is greater change and comparisons between 1987 and 1988 statistics will have to be treated with caution.
HM Customs and Excise and the DTI are about to issue an information note in a forthcoming issue of British Business which will give more detailed advice on the implications for users of the overseas trade statistics. In addition the guide to the classification for overseas trade statistics to be published for 1988 by HM Customs and Excise will contain an extra volume providing correlations including SITC 2 to SITC 3 and vice-versa. By use of these tables it will be possible for users to make the link between the 1988 statistics and earlier years.
I hope that that will satisfy the noble Lord, Lord Bruce of Donington. The noble Lord, Lord Lloyd of

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Kilgerran, asked me a question about trade marks and I am grateful to him, too, for giving me advance notice of this question. I am assured that there are no implications for the methods of control used by Customs authorities in relation to trade marks. The introduction of the harmonised system has no bearing at all on trade mark legislation which is what the noble Lord in any case suspected. I think I can assure him on that point. As to the protocol of amendment which was mentioned, that was accepted by the United Kingdom at the time of the ratification of the convention on 22nd September. That has now gone through.
I now turn to the point made by the noble and learned Lord, Lord Silkin. He suggested that the order should be withdrawn at this point. As I explained the Government believe it is advisable to make this order for the avoidance of any doubt in the matter. The order has already been accepted by the other House. Having said that I have no doubt that all those concerned with any future similar cases will pay due regard to the views which have been expressed on this occasion by the Joint Committee on Statutory Instruments and indeed by the noble Lord in the House this evening. I hope that your Lordships feel that they can accept the order this evening.
Lord Lloyd of Kilgerran: My Lords, before the noble Lord sits down, so far as I understood him he has not quite dealt with my question about what will be the effect of the International Convention on the Patent Office classification of goods. Would not the Patent Office have to alter their classification of goods to conform with this convention?
Lord Brabazon of Tara: My Lords, as I understand the position it will not affect patent law or classifications. I shall certainly look into that matter further and write to the noble Lord.
On Question. Motion agreed to.
Lord Beaverbrook: My Lords, I beg to move that the House be now adjourned during pleasure until 7.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.40 to 7.50 p.m.]

Criminal Justice Bill [H.L.]
House again in Committee.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 39:
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.
(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
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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: I come now to Amendment No. 39, which I hope I can deal with briefly. Its main provision is to remove certain restrictions contained in the Children and Young Persons Act 1933 on the giving of evidence by young children. First, there is the restriction that they cannot do so unless they understand the duty to speak the truth; a term which will very often be the case in a philosophical sense but not in a sense of reality and today is quite unnecessary. Secondly, there is the proviso in Section 38 which deals with corroboration.
The new clause in subsection (3) provides that when a child of tender years gives evidence, whether he is sworn or unsworn, it is the judge's duty to consider whether, in the light of all the evidence—which of course includes the age of the child and the nature of the offence—he should withdraw the case from the jury as a conviction would be unsafe or unsatisfactory. Alternatively he must consider whether he should warn the jury of the danger of convicting on the evidence of a child of tender years, whether sworn or unsworn, if uncorroborated.
As regards safety, the last subsection provides that the power to withdraw the case is not to derogate from the judge's normal right to hold that there is no case for the defendant to answer.
This new clause is intended as part of a broad relaxation of the restrictions on the giving of evidence by children. Irrespective of the ultimate consequence of the new clause in Amendment No. 38, which we have just debated, Amendment No. 39 should be of value in this context. I beg to move.
The Earl of Caithness: This clause would repeal the existing law that a child's unsworn evidence must be corroborated. In its place, it proposes that the judge should consider whether the case should be withdrawn from the jury because a conviction would be unsafe or unsatisfactory or whether he should warn the jury of the dangers of convicting in the absence of corroborating evidence. It would also amend the criteria for the admission of such evidence.
I have already set out in some detail the Government's policy on child abuse and we have had a very useful debate about the conduct of these trials. It is against this background that we need to consider the question of corroboration. As the Committee knows, Section 38 of the Children and Young Persons Act 1933 requires the unsworn evidence of a child to be corroborated before an accused may be convicted. The Criminal Law Revision Committee considered this rule of law in their eleventh report and concluded that there should be no requirement of

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corroboration except in sexual cases. For sexual cases they felt that,
"the danger that a child's evidence may be unreliable because of susceptibility or fallibility of memory"
justified retention of this rule.
Earlier this year, however, my right honourable friend the Home Secretary commissioned a literature review of the scientific evidence for and against the present corroboration requirement. This review will be published as soon as possible; we have placed pre-publication copies in the Library. That report suggests that there is no compelling scientific evidence in support of the view that a child's testimony is inherently unreliable. What little comparative research there is indicates that children are as good witnesses as are adults. In other words, there does not appear to be a sufficient scientific basis for a strict requirement that a child's evidence must be corroborated.
The Criminal Law Revision Committee recommended repeal in non-sexual cases and our report suggests that there is no justification for retaining the rule in sexual cases. It is everyone's wish that these cases should come to trial wherever possible and that those guilty of appalling crimes against children should be brought to justice.
My right honourable friend has therefore made it known that he favours the abolition of the strict corroboration rule. I can therefore gladly accept the amendment of the noble and learned Lord, Lord Silkin, in principle. I cannot accept it quite in the terms in which it has been tabled because, for reasons
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which we might go into in debate if the Committee wishes, I should be reluctant to dispense with the requirement that before a child's unsworn evidence can be admitted she must understand the duty of speaking the truth. But I can undertake to bring forward suitable amendments to effect this change at Report stage.
Lord Silkin of Dulwich: I am grateful to the Minister for his undertakings and the way he has accepted the principle of the new clause. In the light of those undertakings, I am only too pleased to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
The Earl of Arran: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Associated British Ports Bill
Reported from the Unopposed Bill Committee with amendments.
House adjourned at one minute before eight o'clock.