§ 4.28 p.m.
§ House again in Committee.
§ Clause 44 agreed to.
Lord Fraser of Carmyllie moved Amendment No. 292:
After Clause 44, insert the following new clause:
("Evidence in criminal proceedings
Evidence in criminal proceedings.
.—(1) In section 32 of the Criminal Justice (Scotland) Act 1980 (evidence by letter of request or on commission)—
(a) after subsection (3) there shall be inserted the following subsection—
(3A) Where any such record as is mentioned in paragraph
(b) of subsection (2) above, or any part of such record, is not a document in writing, that record or part shall not be received in evidence under subsection (3) above unless it is accompanied by a transcript of its contents."; and
(b) after subsection (5) there shall be inserted the following subsection—
(5A) In subsection (2) and (3) above, "record" includes, in addition to a document in writing,—
(a) any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(b) any film (including microfilm), negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.
(2) After section 32 of that Act there shall be inserted the following section—
Evidence from abroad through television links in solemn criminal proceedings.
32A.—(1) In any solemn criminal proceedings in the High Court or the sheriff court a person other than the accused may given evidence through a live television link if—
- (a) the witness is outside the United Kingdom, the Channel Islands and the Isle of Man;
- (b) an application under subsection (2) below for the issue of a letter of request has been granted; and
- (c) the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness.
(2) The prosecutor or the defence in any proceedings referred to in subsection (1) above may apply to a judge of the court in which the trial is to take place (or, if that court is not yet known, to a judge of the High Court) for the issue of a letter of request to—
- (a) a court or tribunal exercising jurisdiction in a country or territory outside the United Kingdom, the Channel Islands and the Isle of Man where a witness is ordinarily resident; or
- (b) any authority which the judge is satisfied is recognised by the government of that country or territory as the appropriate authority for receiving requests for assistance in facilitating the giving of evidence through a live television link, requesting assistance in facilitating the giving of evidence by that witness through a live television link.
(3) An application under subsection (2) above shall be granted only if the judge is satisfied that—
- (a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; and
- (b) the granting of the application is in the interests of justice.
(4) The power of the High Court to make Acts of Adjournal under the 1975 Act shall include power to make such provision as it considers necessary or expedient for the purposes of this section.".").
§ The noble and learned Lord said: In the midst of a Bill that deals with miscellaneous provisions for the law of Scotland, we now enter upon discussion of a group of amendments which, as appears from representations made to me, clearly have implications well beyond the private law of Scotland. In moving this amendment, I propose to speak also to Amendments Nos. 292A, 292B, 292C, 293A and 293ZA (which I appreciate is the one which relates to a proposal to disapply this provision to any prosecution under the War Crimes Bill which is at present about to start its passage through this House). That is clearly the one that attracts the most interest and attention. But if your Lordships will bear with me, I should like to explain something of the importance of Amendment No. 292 outwith the context of war crimes.
§ Before the passing of the Criminal Justice (Scotland) Act 1980 evidence in criminal trials had to be given personally in court. Section 32 of that Act usefully makes available in criminal proceedings the procedure in civil proceedings for taking evidence on commission or by letter of request. Where the witness resides outside the United Kingdom, Channel Islands or Isle of Man, his or her evidence may be taken by a tribunal in the place where he or she resides in accordance with a letter of request issued to that tribunal from the High Court or the sheriff court and accompanied by interrogatories and cross-interrogatories.
§ The new provision to be introduced into the 1980 Act by the new clause contained in this amendment builds in two respects on the existing provisions in the 1980 Act. I have brought these provisions forward following the consultation which I carried out as announced in my speech opening the Second Reading debate in this House on the Bill.
§ The first new provision makes clear that when the 1980 Act refers to the "record" of the examination of the witness under the letter of request or commission 928 procedure, that record can be, in whole or in part, a record in the form of an audio or video recording. I think that this is a helpful recognition of the increasing use of new technology. However, in order to assist the Scottish court which has to consider the evidence, it is specifically provided that the record—the video tape, for example—must be accompanied by a transcript of its contents for ease of reference by the court.
§ The second new provision makes it possible in certain defined circumstances and only after the court has granted its authority for a High Court judge or sheriff hearing a case with a jury to receive evidence from abroad through a live television link. There already is statutory provision with regard to England and Wales for the evidence of a witness outside the United Kingdom to be given through a live television link. The relevant provisions for England and Wales are in Section 32 of the Criminal Justice Act 1988. Accordingly, the provisions which we are considering are not novel, and the principle of the introduction of this procedure for taking evidence from abroad has already on a previous occasion been accepted by this House.
§ My consultation, to which I referred earlier, confirmed that there was general approval of the introduction of this procedure for Scotland. I should like, however, to draw the attention of the Committee to the fact that the procedure is not available as of right—it must be authorised by the Scottish court—and the authority of the court will be granted only if certain conditions are satisfied. The provision we are considering sets out the arrangements carefully. Either the prosecution or the defence may apply to the court for the issue of a letter of request asking the authorities abroad—a court, a tribunal or other authority—for their assistance in facilitating the giving of evidence by the witness through the live television link.
§ The judge is only to grant that application if he is satisfied of two things: first, that the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; secondly, that the granting of the application is in the interests of justice; further, in terms of subsection (1) of the new Section 32A, the evidence is admissible only if the court is satisfied as to the arrangements for the giving of evidence by a live television link from abroad.
§ The Crown would of course endeavour if at all possible to have the witness in court to give oral testimony there. Only if this was not possible would it be necessary to consider making use of the new procedure. Other matters with regard to this method of obtaining evidence from abroad can be regulated by rules made by the High Court in the form of acts of adjournal. This is specifically provided for by subsection (4), which provides that the High Court's powers to make acts of adjournal include power to make such provision as is necessary in connection with the new section.
§ As announced in this House on 8th March in the statement about the Government's response to the war crimes inquiry report, the English provision for live video links is to be brought into operation in 929 the first instance in respect of homicide trials and trials of serious and complex fraud. If the provision in the Bill is enacted, I propose to bring that provision into operation for Scotland on a similar basis.
§ I am sure that we all wish that all necessary evidence should be before a Scottish court considering a serious criminal charge and that the oral evidence of a witness should, in appropriate circumstances and restricted as I have indicated, be available even if he or she is living abroad. This provision does that, with the necessary safeguard that the court must grant its authority before the new procedure can be used.
§ Before I turn to the other amendments and in particular to Amendment No. 293ZA, given the approval that this House and another place have already given to the use of video links in criminal trials in England and Wales, whatever view may be taken about the desirability or legitimacy of using them for war crimes trials if they are to take place, I hope that the issue will not be confused and that it will be accepted that if video links are to be permitted, as they indeed are for England and Wales, it is only right that as a general principle such a provision should be allowed to the criminal courts in Scotland.
§ In addition to Amendment No. 293ZA there are a number of others which I understand will be moved and I should like to deal with them briefly. The first, Amendment No. 292A, seeks to enable the accused, as well as other witnesses, to give evidence to the High Court of Justiciary or the sheriff court in Scotland by means of a live television link from abroad rather than being present in court. That appears to be the effect of the amendment, but it may be proposed that the reference to the accused should be deleted as it is unnecessary.
§ Certainly there is a statutory provision in Section 145(1) of the Criminal Procedure (Scotland) Act 1975 to the effect that no part of a trial shall take place outwith the presence of the accused. This amendment, if it were adopted, would depart from that provision and I can see no reason for such departure. Accordingly, I shall in due course invite the Committee to reject the amendment.
§ Amendment No. 292B seeks to make it a requirement that the court in Scotland has sanctioned the arrangements for the giving of evidence by live television link by a witness from abroad before that method of giving evidence may be used. In the amendment which I have brought forward there is provision that the court be satisfied as to the arrangements for the giving of evidence by live television link from abroad before such methods can be used. I see no need for the court in Scotland specifically to sanction those arrangements provided that it is satisfied as to their adequacy. Accordingly, again I shall invite the Committee in due course to reject that amendment.
§ Amendment No. 292C seeks to impose a restrictive deadline for applications by either the prosecution or the defence for the issue of letters of request to seek assistance from the appropriate authorities outside the United Kingdom for the 930 giving of evidence by live television links. There may, however, be circumstances where shortly before the date of the trial it is desired to use the new procedure. For example, the prosecution or the defence might become aware of important evidence held by an additional witness abroad, or it might become apparent that a witness abroad whose name and address has already been intimated and who it was expected would appear at the trial in Scotland cannot, for whatever reason, attend the Scottish court. In either of those circumstances it would be unfortunate if that evidence were lost due to the restrictions which this amendment seeks to impose.
§ I should indicate though that I would envisage, if video links were to be used and applications were to be made to the court for such use, and in view of the fact that letters of request is a critical step before that can be achieved, that such application would be made to the court very considerably before the 21 days in this amendment. What the new clause that I promote seeks to provide is a flexible procedure for the obtaining of evidence in those circumstances. For that reason, I would reject this amendment and similarly invite the Committee in due course to do so.
§ Perhaps I may deal briefly with Amendment No. 293A on the basis that it is not necessary. The trial judge in any criminal proceedings in Scotland may entertain and decide on objections to the competency of evidence. It is important to appreciate that the use of modern methods of technology such as live television link by satellite from abroad or by direct land line to present evidence to the court in Scotland would not alter the nature or characteristics of the proceedings. In particular it would in no way affect the competence of the judge to entertain and dispose of objections to the competency of any evidence. Again I accordingly invite the House to reject that amendment as unnecessary.
§ Amendment No. 293ZA obliges us to consider again in the context of the Bill the issues raised by the War Crimes Inquiry and the report by Sir Thomas Hetherington and Mr. Williams Chalmers, the former Crown Agent in Scotland. These are difficult and possibly uncomfortable issues. They have been debated in this Chamber and in another place. On 8th March, as I have already indicated, the Government announced that they were responding to the report by Mr. Chalmers and Sir Thomas Hetherington by introducing legislation to enable war crimes trials to be held in Scotland. The War Crimes Bill has now completed all its stages in another place and gives effect to the principal recommendation of the War Crimes Inquiry that British courts should be given jurisdiction over offences of murder, culpable homicide and manslaughter committed as war crimes in Germany or in German occupied territory during the period of the Second World War by persons who are now British citizens or resident in the United Kingdom.
§ As will be abundantly obvious in due course, this House will have the opportunity to consider the principle of that Bill. It would seem to me undesirable and unnecessary during the course of the amendment for us to anticipate the general debate on 931 whether legislation to allow such prosecutions should be introduced.
§ The new clause deals with two specific procedural changes which I undoubtedly and clearly have to accept the inquiry report recommended for Scotland. The first of these is providing a procedure to enable a Scottish court to allow a witness outside the United Kindgom to give his evidence through a live television link. As I have already spelt out, such provision is already in place in England and Wales in terms of Section 32 of the Criminal Justice Act 1988. My right honourable friend the Home Secretary explained in another place during the Second Reading debate on the War Crimes Bill that the provision in the 1988 Act was included principally for use in serious and complex fraud trials but it is not regarded as sensible to limit its application to such trials alone and to exclude it in the most serious of all types of cases—those involving the taking of human life. It is therefore intended to bring Section 32 into effect in respect of murder, manslaughter and serious and complex fraud.
§ The second procedural change recommended in the inquiry report is that relating to audio and vido recordings of evidence taken abroad by letter of request. It was unclear whether the record of the evidence obtained under Section 32 of the Criminal Justice (Scotland) Act 1980 could competently include a video or audio recording. A specific provision to this effect is now included.
§ Both these changes are of general application. It would certainly appear to me that it is clearly in the interests of justice that our criminal courts should have the best available evidence before them. Both the prosecution and the defence should be able to call on a witness wherever he or she is in order to give oral testimony in person in Scotland or through a live television link from abroad. In some cases a television link may be the only way of obtaining that direct oral testimony.
§ Neither of these changes can, I consider, reasonably be regarded as representing the setting up of a novel evidential or procedural regime solely with possible war crimes prosecutions in mind. It would indeed be wrong to set up a regime specifically for war crimes. Equally, the procedures available for the obtaining of evidence for possible use in criminal proceedings in general should be available for all war crimes trials.
§ I could not be unaware of the depth of views that have been expressed in this Chamber on possible prosecutions for certain war crimes. I attended the last debate and it was obvious to anyone there how deeply feelings ran. However, again I suggest to the Committee that that is not the central question now before us. My concern as the public prosecutor in Scotland must be that, if there are to be war crime trials in Scotland—and I stress "if—it is only right that the fullest range of appropriate powers that would otherwise generally be available should be available in such a trial in Scotland. In particular, if there are equivalent powers available to the courts in England and Wales, those powers should be available in Scotland.932
§ It may be a matter of concern to some Members of the Committee that the amendment is the only opportunity that is provided to raise issues affecting the evidential regime that might apply in relation to any war crimes trial. First, with respect, that is not correct. There will be the opportunity which would seem to me more appropriate to deal with such matters once this Chamber has considered the general principle of whether there should be prosecutions for war crimes.
§ Furthermore, if Amendment No. 293ZA were to be carried and the War Crimes Bill passed into law, there would be an extremely undesirable—indeed, bizarre—consequence. The jurisdiction that would be allowed to the courts if that Bill passed into law would not depend on the residence of an accused person specifically within a Scottish jurisdiction or the jurisdiction of the courts in England and Wales. Clause 1 of that Bill makes it clear that the jurisdiction of the court is in respect of a person who is a British citizen or is resident in the United Kingdom, the Isle of Man or any of the Channel Islands.
§ I would consider this position extraordinary. I stress that this must be a matter simply of example and is not to be taken as a particular case. There might be allegations of involvement in certain war crimes defined in the War Crimes Bill involving a British citizen who was resident in Scotland. That person might be brought to trial in London because the video links allowed for in Section 32 of the English Act of 1988 were not available. If the amendment were carried such comparable powers would not be available in Scotland. I find that a rather startling and extraordinary idea.
§ If video links are to be allowed for in England and Wales, they should similarly be allowed for in Scotland. If they are not to be allowed for war crimes trials in Scotland, the only rational conclusion is that similarly the provisions of Section 32 of the 1988 Act in England and Wales should be disapplied in respect of war crimes prosecutions on this side of the Border. I hope that I have clearly and obviously set out the position.
§ If my position seems to the Committee to be logical and sensible, my suggestion is that once the principle of prosecutions for war crimes has been determined in this Chamber, it would be appropriate at that stage to decide whether the video links proposal—not only for Scotland but also for England and Wales—should be disapplied in the event of such prosecutions taking place.
§ As public prosecutor in Scotland, I have been very careful to avoid making any reference to a particular case. Members of the Committee will be aware that the Hetherington Chalmers Report suggested that such live video links should be permitted to bring Scotland into line with England. I want to make it very clear, particularly in view of the decision by a court on this side of the Border last week, that I am saying nothing about any particular prosecution which there may be in Scotland in the months or years ahead. Apart from anything else, it would be wholly premature of me to give any such indication that there will be a war crimes trial. Indeed, it will be obvious to many that, given the present state of 933 affairs there is no live investigation being undertaken. It is only right for me to discover whether a jurisdiction is to be given to the Scottish courts before embarking on that course.
§ However, I emphasise that if I have to discharge my public duty as prosecutor in Scotland by setting up investigations into allegations of war crimes and taking that to the further stage of coming before the courts with a prosecution, I should be very concerned were I to be excluded, unlike my counterpart in England, from relying on video links.
§ This is a very difficult matter. I hope that I have set out the appropriate way to deal with it. Whatever view the Committee takes of the disapplying amendment, I request that there should be no confusion with the more general principle which my amendment introduces. I invite the Committee to reject Amendment No. 293ZA not because I consider this to be the last and exclusive opportunity to deal with the matter of evidence but because, if that is to be the approach taken by this Chamber, it should be taken on a United Kingdom basis once the issue and principle of prosecutions of war crimes in relation to those individuals specified in the War Crimes Bill have been resolved.
§ [Amendments Nos. 292A to 292C not moved.]
§ [Amendment No. 293 had been removed from the Marshalled List.]
Lord Campbell of Alloway moved, as an amendment to Amendment No. 292, Amendment No. 293ZA:
After Clause 44, at end insert:
("( ) The provisions of subsections (1) and (2) above shall not apply to any trial involving alleged war crimes committed in German-held territory during the Second World War.").
§ The noble Lord said: The object of this amendment is to exclude the application of Amendment No. 292 to admit sound and videotapes taken abroad and live television link evidence from abroad as an aid to conviction in a war crimes trial in implementation of the recommendations of the war crimes report.
§ There are two reasons for the proposed exclusion. It is idle for my noble and learned friend to talk about undesirable pre-emption. The boot is on the Government's foot. First, the principle of the War Crimes Bill has not been accepted by this Chamber. Secondly, if Amendment No. 292 were to apply to war crimes trials, it has not yet been shown, and it must be shown, that after a delay of some 50 years, justice would be or could be secured according to our traditional standards. It is far easier to cry, "Let justice be done", than to ensure that it is done and is seen to be done according to our traditional standards.
§ Likewise, the sister provisions of English law, introduced, as Members of the Committee will remember, for a totally different purpose, now thought to be assimilated with and by Amendment No. 292, are called into question if used for the purpose of a war crimes trial. Let us not waste time and indulge in an argument about using what my noble and learned friend called undesirable anticipation. Let the facts speak for themselves.934
§ First, the war crimes inquiry was set up on 8th February 1988. The report was presented to Parliament in July 1989. On 4th December 1989 the report was debated in this Chamber; its recommendations attracted somewhat scant support. On 19th December the Bill before us was introduced into this House; it was read a second time on 30th January. In a long and detailed speech lasting 26 minutes my noble and learned friend the Lord Advocate at col. 174 referred to the absence of any provision allowing evidence to be given through live television links from abroad saying that he thought that such a provision would be useful. However, no mention was made of the purpose for which it would be used.
§ On 31st January a newspaper circulating in the north-east of Scotland referred to a discussion with my noble and learned friend the Lord Advocate on 30th January. The newspaper published an article by its political correspondent under the heading, "TV links may aid war crimes trial"—a matter which had not been brought to the attention of this House on Second Reading of the Bill.
§ On 8th March, a government Written Answer to a Question that I tabled asking what plans they had for responding to the war crimes inquiry announced the immediate introduction of the War Crimes Bill in another place on that day and the subsequent introduction into the Bill before us of an amendment along the lines of Amendment No. 292 for the intended purpose of aiding a conviction in a war crimes trial.
§ Arising from Amendment No. 292, Amendment No. 293 was tabled. On 2nd April that was amended with the help of the noble and learned Lord, Lord Wilberforce. Why was that amendment tabled? It happened because, search as you will, the purpose for which Amendment No. 292 was introduced was simply not apparent on the face of the clause and is only apparent from the Written Answer. Unless Members of the Committee happened to read the Written Answer or the rather obscure newspaper circulating in the north-east of Scotland, nobody would have had the slightest idea of the Government's intentions on this matter. That was the reason the amendment was tabled.
§ On 19th March on the Second Reading of the War Crimes Bill, the right honourable gentleman the Deputy Leader of the party in opposition in another place expressed certain views in the context of the second reason to which I referred, which your Lordships may remember was the "fair trial after 50 years" assumption—Amendment No. 292. I cannot quote them; it is contrary to tradition and good form. The reference is Vol. 169, No. 74, cols. 897-900.
§ The right honourable gentleman made four crucial observations. First, he said that the Bill would be a better Bill if Amendment No. 272 were not to apply to war crimes trials. Secondly, he said that if there had been any real need for clarification or reform of the law these provisions would have been included in the Bill when introduced to your Lordships' Chamber in December 1989. Thirdly, he said that there were the gravest reservations regarding the removal of the provisions of Amendment No. 292 935 from the War Crimes Bill and their introduction as an amendment to this Bill.
§ I shall come back to that because those provisions were once in the War Crimes Bill and the separation of the consideration is part of the design or wish of the Government. For my noble and learned friend the Lord Advocate to criticise the amendment of which I speak in that context is not well founded and I shall reply to that in due course.
§ The right honourable gentleman further said that when your Lordships discovered that the provisions of Amendment No. 292 related to the War Crimes Bill, your Lordships might oppose that amendment. Steps were therefore taken to inform some noble Lords of the situation so that they might attend, if so advised, and listen to the argument. The usual channels were kept fully informed throughout and the request for a free vote was granted, for which noble Lords on all sides of the Chamber would be grateful. The War Crimes Bill was read a first time on 26th April. It is unofficially understood that the Second Reading may be on 4th June.
§ I now turn to the intended purpose of Amendment No. 292, for use in war crimes trials, which rests upon three assumptions; first, that in the context of the question of principle your Lordships shall give the War Crimes Bill a Second Reading, there being no breach of convention if your Lordships should decline to so do; for we are concerned with matters of moral judgment, the distinctive endowment of man from the very beginnings of time. It is not a mandated Bill and there is no question of any party with an inbuilt majority in your Lordships' Chamber frustrating the will of another party in government in another place. It would therefore be wrong for my noble and learned friend and the Government to assume that against a reasoned amendment your Lordships would give the War Crimes Bill a Second Reading.
§ The second assumption is that the traditional safeguards of quashing an indictment for abuse of process on grounds of delay have not been slighted by the express provisions of Clause 1 of the War Crimes Bill. I propose to show that they have been. The third assumption in the context of the fair trial assumption is that if the procedures of Amendment No. 292 were to apply in these trials a fair trial would be secured. The rectitude of each of those assumptions is doubted for the reasons I shall shortly deploy.
§ Perhaps I may deal with matters of common ground before I turn to the argument—and there is an argument—on all three issues. The matters of common ground must be, first, whether the principle as to whether these trials should ensue has overriding effect; secondly, that it is wholly inappropriate to consider some of the assumptions in one Bill and others in another—a sort of piecemeal approach; thirdly, that on the fifth day of the Committee stage of this Bill there is no opportunity that can be afforded to debate these assumptions or consider how they react and interact on each other and upon the fundamental principle of whether such trials should ensue. That is not a subject for consideration 936 in a Law Reform (Miscellaneous Provisions) (Scotland) Bill; it is for consideration in the War Crimes Bill where the appropriate time can be taken and all matters can be considered as they react, interact and affect the fundamental decision of whether these men should be tried at all. They are questions of procedure.
§ Fourthly, if such trials are to ensue it must be common ground that the laws, procedural and substantive, must be assimilated by the Bill on both sides of the Border. My noble and learned friend asked for an assurance on that and I gladly give it. I accept that if the trials are to proceed the same laws, procedural and substantive, must apply.
§ The next matter of common ground is that the sister provisions of English law sought to be assimilated by Amendment No. 292 were introduced to implement the provisions and recommendations of the Roskill Report to combat serious and complex international fraud and are at present in a putative pre-experimental state as no implementing rules or opposition procedures have yet been issued. It therefore comes to this. By that proposed process of assimilation in Amendment No. 292, a law introduced for one purpose in England—albeit cast in the form of general application—is to be used for a totally different purpose in Scotland. That is a curious legislative approach.
§ The last matter that must be common ground is of considerable importance. It was recognised as such in the war crimes report. It was said—and I choose my words with care—that it would be extremely difficult to mount a prosecution against any of these men unless Amendment No. 292 was passed. That is why it is introduced.
§ I have dealt with the matters of common ground. The argument as to the first assumption can be put briefly. The first point is whether genocide—that is what it was—in implementation of an act of state by subordinates of some hostile power within a limited area of general conflict during the Second World War can under convention then applicable be treated as a war crime. In the debate my noble and learned friend Lord Hailsham thought assuredly not. With respect, he was entirely right. It was not accepted as a defined offence until 1948.
§ The second matter to be considered is whether legislation should be introduced with extra-territorial effect to implead those who owe no allegiance in respect of acts committed outside the jurisidiction of our courts. The noble Lord, Lord Mayhew, thought not. The Committee may remember that the noble Lord—he is unfortunately unable to attend today—reminded us that when that file was closed, in I believe 1948, it was known then that there were those who might be liable to prosecution if some sort of statute such as the one proposed were to be enacted. However, the file was closed as an act and decision of government. I believe I am right that the noble Lord, Lord Mayhew, was then in the position of the Minister having to make the decision.
§ The third matter to be considered on the question of principle as to whether the War Crimes Bill is I given a Second Reading is whether as a matter of 937 morality it is right or wrong to put these men on trial after a delay of some 45 years. The noble Lord, Lord Irvine of Lairg—
§ Lord Mishcon
Perhaps the noble Lord will forgive me for intervening. Is it in order in a debate on this amendment to deal with how this Chamber should approach the Second Reading of the War Crimes Bill when we are not dealing with that Second Reading?
§ Lord Campbell of Alloway
I am, as always, in the hands of the Committee. I consider it to be strictly relevant. It is wholly wrong, reprehensible and unfortunate on the part of the Government that I support that they took these relevant provisions out of the War Crimes Bill. However, as they have been taken out—
§ Lord Fraser of Carmyllie
I would be grateful for a clear understanding of the basis on which my noble friend makes that decision.
§ 5.15 p.m.
§ Lord Campbell of Alloway
The only basis which I can state publicly is the view expressed by the right honourable gentleman the Deputy Leader of the Opposition in the passage to which I referred. My noble and learned friend laughs, but I should not have thought it at all possible that anything like that could have been stated by the right honourable gentleman unless he had grounds for his belief. That is the basis on which I made the decision.
I was concluding the passage to which the noble Lord, Lord Mishcon, took objection. I have only this to say further, if the Committee will allow me. Noble Lords took the view by a substantial majority that it was not right that these trials should continue. I referred to the speech of the noble Lord, Lord Irvine of Lairg, and I was about to remind the Committee that the right reverened Prelate the Bishop of St. Albans spoke of the backlash effect, but at that time—and again the relevance is this—the question of evidence from abroad as a requisite and aid to conviction was not considered as it was not then even before this Chamber.
On the second assumption that the express provisions of Clause 1 of the War Crimes Bill would appear to oust the jurisdiction of the courts to quash an indictment for abuse of process on grounds of delay, in a recent Privy Council case a few words were said by the noble and learned Lord, Lord Templeman. He said:The longer the delay the less likely the trial can be fair. The trial might be unfair even if there were no specific prejudices".This year in the Lloyd's trial, Grob and Hart, at Southwark Crown Court the indictment was quashed after 10 years' delay—justified delay—because the defendants had suffered prejudice in the preparation and conduct of their defence.
Only last week, after four weeks of preliminary submissions—this is the sort of argument one is involved with—the indictment was quashed in the Manx Bank trial because a fair trial was not possible on the ground of delay. That bank collapsed in 1982. The criminal investigation into fraud started in 1987 and the delay was held not to be justified. Where is 938 the justification for the delay of 45 years? Where are the material witnesses for the defence? How can it be shown, especially if resort is had to Amendment No. 292, that a fair trial can take place?
I conclude by saying that this way the second assumption—the ouster of the jurisdiction that the courts cannot quash an indictment on the ground of delay because of the way that Clause 1 is drafted—and the fair trial assumption to some degree merge, but not totally.
I have spoken to the noble and learned Lord, Lord Emslie, who is not able to attend, and other noble and learned Lords, some of whom are able to attend. The view is that a fair trial is just not on and that the logistics of using this amendment in those circumstances presents insuperable difficulties. With the leave of the Committee, I leave it to other noble Lords who are more experienced than I to deal with those aspects of a fair trial, especially in Scotland, where the practice as regards identification differs from that south of the Border. On that basis, I beg to move.
§ Lord Morton of Shuna
To my mind it is clear that Amendment No. 292 is being brought forward at this time only because of the War Crimes Bill. The English legislation was passed of course before the Hetherington and Chalmers report was available and therefore had nothing to do with war crimes but was concerned with Lord Roskill's report.
It is clear from the Written Answer to which the noble Lord referred that that is the purpose of the amendment. It is also clear when we consider the position about children giving evidence on television links, because that, which is perhaps a related subject, is outside the normal type of consultation in Scotland and is not included in this Bill, though I believe—I may be wrong—that there is similar provision already in England. Therefore, it is not a case of trying to bring the two together but of introducing this matter quickly in order to fit the War Crimes Bill.
It is fundamentally wrong to legislate to change the law of evidence with retrospective effect merely for the purpose of trying two or three individuals. It is one thing to change the rules of evidence to cater for events of which the prosecuting authorities are unaware or to take account of changes in technology. That is what this House and the other place did in changing the English provisions concerning television links. It is quite another matter to say—and it offends deeply against the principle of fairness—to two or three individuals, "We abhor what you are said to have done but on the present law we cannot prosecute you. Therefore, we are going to change the law so that we can prosecute you for what you did, or are said to have done, nearly 50 years ago".
The noble and learned Lord the Lord Advocate said that if we pass the amendment to his amendment it will open the door to the prosecution of a resident Scot in England. I have always had great respect for those who have held the office of Attorney-General and I hope to continue to have respect in future for those who will hold that office.
939 However, I am startled to think that, if this Parliament passed a Bill saying that there should be no such prosecution in Scotland, any Attorney-General would then prosecute a resident Scot in England. It would offend against everything that Parliament has said. In my view what is proposed is fundamentally wrong because it is retrospective and aimed at two or three individuals.
Apart from the question of principle there are severe practical difficulties. The use of a live television link or video-recorded evidence has not been allowed before. As I understand it, English law has not yet been used. We have not had any experience of dealing with these measures. In general I would accept the amendment because it gives a procedure which we would normally expect to be tried out cautiously, starting with fairly non-contentious evidence. I am thinking of evidence from, say, a foreign banker speaking to his records or his transactions. Instead, I understand that we are to go straight into murder trials in relation to matters that took place 40 or 50 years ago.
Clearly, from the Hetherington-Chalmers report, the evidence that is to be taken on a television link, whether recorded or live, is concerned with identification. The issue in any such trial will be whether the person standing trial can be identified as a person who committed an offence nearly 50 years ago. There are obvious difficulties about doing that. They are compounded by the difficulties of having interpretation and a television link.
The judge is only to allow that procedure if it is in the interests of justice. How is the judge to make the assessment? As I understand the procedure in England, a witness statement taken by police or the prosecuting authority is signed by the witness and is available to the defence and to the judge. That is not so in Scotland where in general the witness statement is not signed by the witness. It is not shown to the other side. Each side obtains its own statements and does not see the statements obtained on the other side. The judge sees no statements whatever either before or during the trial.
With that procedure, how is a judge, faced with a request to take evidence, to measure the evidence according to the proposed new Section 32A(3)(a)? It says that,the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial".Is the judge to see all the statements that are available? If there are 10 people who can identify and the evidence of only one has to be taken through the television link, is that necessary or not?
This amendment produces a procedure which, in general, I recognise as being necessary. However, it should be used very cautiously and is not to be tried out in a case of this type. How are we to look at the issue of a witness who is to speak to matters of substance and who is fit to travel but who is unwilling to do so? As the Hetherington-Chalmers report says:It is clearly desirable that witnesses of substance should appear in person before the trial court so that their evidence could be challenged before a judge and jury and the credibility of the evidence assessed".940 It is very difficult to assess the credibility of any witness. It is done more easily if the witness is there rather than being visible only through a television link. A witness is assessed sometimes through his hesitation, the lift of an eyebrow or by a change of expression. It may be that these are factors which become distorted on television.
What are we to do as judges if we are faced with a motion to recall a witness? Is the jury to be shut up while the Russian or other authorities try to find out where the witness has got to since his evidence was recorded? There are all kinds of practical difficulties which have to be faced. Fortunately for Scotland, there are many people from the Baltic states and Poland who have lived in Scotland since the war. They have been of great benefit to Scotland. Some may well have evidence of importance. One of them, seeing a witness give evidence on the video link may say, "That evidence is wrong" and then mention a certain fact. We have all had experience of that happening.
How does one deal with that situation? These are very severe problems. I suggest that it is entirely inappropriate that this type of case should come before us at this stage. The basic principle remains. In my view it is morally wrong to have retrospective legislation of this kind. I am speaking only about Scottish affairs. I do not wish in any way to be critical of English matters. It is crucial that the standards of Scottish justice should remain high and that nothing should be done to diminish the necessary impartiality and fairness of justice. As regards these proposed trials, I strongly believe that the substantive amendment would offend against that principle. I strongly support the alternative amendment.
§ 5.30 p.m.
§ Lord Macaulay of Bragar
The noble and learned Lord the Lord Advocate has carefully and fairly set out the Government's position in relation to this very important amendment. I share the same reservations as previous speakers concerning the timing of the amendment. Although it is a general amendment, there is a deep suspicion that it was tabled for the specific purpose of covering any impending war crimes trials. The noble Lord, Lord Campbell, spoke about the amendment having been in the War Crimes Bill. I should have thought that it would be much more objectionable to put this provision into the War Crimes Bill and to make an exception of war crimes. It makes more sense on a broad basis that if such changes are to be made in the law of Scotland they should be made in the way that is being suggested. In saying that, I am not saying that I accept the government amendment. Like the noble and learned Lord, Lord Morton, I am not happy about the phraseology and the protection which would be required for the operation of this type of evidence.
Perhaps I may remind the Committee that the Bill is called the Law Reform (Miscellaneous Provisions) (Scotland) Bill. This is the fifth day of the Committee stage and each day has been bedevilled by delay. I do not lay the blame at anyone's feet but I should not like to see the discussion on the Bill being 941 polarised on the principle of the war crimes debate. We are in severe danger of going off at a tangent and being here until goodness knows when—until perhaps the same time tomorrow—in order to finish the Committee stage: It must be finished today. I ask noble Lords, with respect, to be temperate and relevant in what observations they care to make about this provision.
The issue of war crimes is one for each and every one of us. It is an emotive issue. However, we are not debating that. We are debating the principle of the fairness of the evidential procedure proposed in the amendment. First, it is about fairness in general, and the amendment in the name of the noble Lord, Lord Campbell of Alloway, is directed to whether the procedure can be applied fairly in the circumstances of a future war crimes trial. I do not propose to go into that matter in any great detail because the War Crimes Bill has not been discussed fully in this Chamber. I have looked at the Bill and I have some reservations about whether in its present form it applies to Scotland. But we can deal with that at a later stage.
On this side of the Committee there is no objection in principle to taking advantage of modern technology in order to hunt down criminals of whatever kind—be they thieves, murderers or the perpetrators of war crimes. The question of retrospective legislation is entirely another matter. It might have come better from noble Lords to show a little faith in British justice, whether in England, Scotland, Ireland or Wales. We have seen the fortunate or unfortunate consequences of two major trials already dealt with in England. On each occasion—in the case of the Guildford Four and in the other case last week—the cry went up, "This was a triumph for British justice".
If that is so, and if we are proud of our legal system—no one says it is perfect as it is individuals who deal with justice—can we not trust the courts in the long run to apply the principles of fairness in the circumstances of each case? It is for the prosecutor, whether he be in England or in any other part of Britain, to decide whether to take a prosecution against an individual. But that is not the end of the matter. The courts are the fountain of justice and fairness. Those principles have been applied, and I hope will always be applied, no matter how heinous the crime before the court.
I have reservations about the wording of the new clause even if it does come from the English Act. The noble and learned Lord the Lord Advocate said that there will be acts of adjournal to deal with procedure. But it is difficult to see how the legislation can encapsulate the principle of fairness. At the moment we only have the new clause to look at. We must ask the question: on the face of it, what difficulties can we anticipate? There is a standing rule that a trial should always take place in the presence of the accused. This is a departure from that rule. The witness may be in Russia and the accused in London or Edinburgh looking at the witness through a television link. That is why I agree with the noble and learned Lord, Lord Morton, that in applying this principle we have to be careful how far we go.
942 I give as an example the cross-examination of a witness on video tape. How will it be achieved if the witness is in the Far East and the accused is in Britain? It is not quite clear to me at what stage it is said the live television link will come into operation. Subsection (2) of new clause states:a person other than the accused may give evidence through a live television link".Is it anticipated that evidence will be available for examination by the accused prior to the commencement of the trial so that he can properly instruct his advisers on the line to be taken with the witness and on the investigations required to enable him to present a defence at the trial? A witness may come on in the middle of perhaps the third or fourth week of a long, protracted trial and give evidence to which the accused says, "That man is talking a lot of rubbish. I have 40 or 50 witnesses in that country who can prove that he is entirely mistaken". What will then happen in the trial?
Even more important, what system of law will apply to the taking of the evidence? I am given to understand from information I have received that at least in one country no cross-examination is allowed. What will happen if the witness merely gives his or her evidence and no cross-examination to balance that evidence is allowed on the video link? Will the judge then to say to the jury, "You have heard that evidence but forget it because there has been no cross-examination"? Are we to reach the other stage of having what are called trials within a trial? When it is proposed to receive evidence in this manner, either for the defence or for the prosecution, will the court be adjourned for the evidence to be heard and assessed so that the judge can make a ruling as to whether it is fair in all the circumstances to allow the person's evidence to be received?
Another question arises as a matter of practicability. What will happen to the immunity of the lawyer who goes to a foreign country? I give as an example someone who has offended against Russia. If in the course of cross-examination the counsel or lawyer has to make certain propositions about the Russian state which in themselves are an offence against the law of Russia, is the lawyer to carry his immunity with him from Britain to Russia; and if so, how will it be enforced if the lawyer in Russia is taken downstairs for a considerable time? I pose these questions at this stage to indicate why I am unhappy about some of the phraseology.
I am concerned in particular about proposed new Section 32A(l)(c). It states that a live television link will be allowed if,the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness".That poses a problem as to how a judge sitting in Britain will be satisfied as to the manner of giving the evidence. I know that it may be an exaggerated example, but while the witness is appearing on television apparently giving a free account of his history how is the judge to know that someone in the background is not menacing him to give evidence in a certain way? How will the British judge know that short of going to the place and examining where the evidence will be given?
943 The same problem arises ultimately in subsection (3)(b) of New Section 32A where we see the test:The granting of the application is in the interests of justice".I ask whether that is the proper test. Surely the proper test is whether the application is fair in the interests of justice. We come back to the touchstone of fairness. The test is much narrower than the interests of justice.
As I said at the outset, I am not taking up any of the Committee's time on the question of the principle of prosecuting war criminals. That is completely irrelevant at this stage. We must not shrink from the use of modern technology but equally we must be careful about resorting to evidential short-cuts which may lead to injustice and unfairness. That is why I should like to see more consideration given to the wording of the new clause.
It is well recognised that in war crimes—and, perhaps, in other crimes—with so much international movement involved, there will be witnesses who refuse to come to this country. The broad interests of justice require that their evidence should be obtained as quickly and as fairly as possible so as to bring the perpetrators of whatever crime it may be to justice. Those are the observations I wish to make at this stage of the debate. I await with interest the contributions of other Members of the Committee.
§ 5.45 p.m.
§ Lord Soper
This is fundamentally a debate on justice. Therefore, I propose to try to say something about the Christian approach to justice in the light of the particular evidence which has been propounded today of one gate into that very large field. I do not believe that you can separate justice that belongs to the Christian faith from the deliberations of an officially Christian Chamber. I intend briefly to say three things about Christian justice as represented by the Christian Church.
The first does not initially sound too complimentary. It is the doctrine of original sin which most people avoid because it is so disagreeable. But it should be some comfort as well as being in the last analysis, a commendation of humility that those who judge are already guilty to some extent and that this world is contaminated by evil in so far as what our first forefather did has reverberated in all kinds of troubles ever since. We are not in any position to take an absolute position on justice because we are to some extent contaminated by an environment which is soaked with a very great deal of iniquity.
Secondly, the condition of this planet is not the ultimate residence of the children of God. We are beginning to see much more clearly than did our fathers that we have only a temporary lease of this earth. That should remind us of one of the great doctrines of the faith of our Hebrew fathers: there is no ultimate meaning in life, except that that life belongs to a larger area of which we are very largely ignorant but for which we must make some preparation and show care. Therefore, I do not 944 believe that there is any possibility of final and absolute justice on this planet.
Thirdly, I should be desolate in that concept were it not for the fact that I am also encouraged to believe that what we leave undone, because we cannot possibly accomplish it, God will in his good purpose continue to do in a way which has been impossible for us. That leads, of course, to highly undesirable and unpleasant concepts of heaven or hell. Indeed, there is no doubt that the measure of our cognizance of that future life becomes more dim almost daily. As far as I can remember, in my advocacy of the Christian faith I receive very few questions about hell; although I must remind myself and, indeed, dare to remind this Chamber that it is a constituent part of the Christian faith that the element of evil, which is the second strongest element of the universe, is overcome finally in the eternal purpose and love of God.
Members of the Committee will permit these ecclesiastical and theological references because they bear, as I see it, intimately upon the question before this Chamber today. I do not believe that it is possible to provide absolute justice. I take it that we cannot prosecute the Katyn murderers who were not Germans. We cannot escape from the contamination of the world in which we live, however decent and aspirate may be our desires for a better life. We can make partial, humble and compassionate judgments. Those judgments are by no means final; but they contribute to a preparation on this planet for what I believe is an eternal life offered to those who learn here sufficiently to accommodate themselves to the change which will be theirs when they die.
In that light, although this does sound a little like a sermon—and I make no apology for that—I believe that if the bishops were present today they would be in concordance ecumenically with me, or I should be in agreement with them, on this matter. We are now faced with an ultimate question: whether or not to prosecute in a very imperfect context the evils of the past, to shift the soot and the dirt of yesterday and to re-light some of the passions which were then ignited; or rather to light a candle for a future which, whatever may be the imperfections of our judgments, would at least not be a reiteration of their failures and inconsistencies.
I agree that that is not immediately applicable to the kind of argument to which we have been submitted today and which we have enjoyed in many respects. However, I believe that you cannot ignore the wider view if you are even to meet the hazards of one or more of the incidentals of trying to make sense, and above all to make decency, of the world in which we live which is in such dire peril today. I happen to believe that it needs above everything else a recognition of the fact that to let some bygones be bygones is not a confession of failure; it is the only way forward. In that regard I commend to the Committee the observations which I have made.
I believe that ultimately the hope of the future is the compassion of today, rather than the reminiscence—however dreadful or informative it may have been—of past days. That is a plea. I do not make it against the background of condonation of evil. I have been to Auschwitz. I was there almost 945 a fortnight after it had been frozen by the Russians. I saw the various instruments of torture still lying on the tables.
Perhaps I should conclude by saying that whenever I am concerned to say something about the Jewish people—and it is inferential in this particular amendment—I feel that I ought to apologise to them for the continual proclamation by the Christian Church of deicide which has only quite recently been repudiated. It is in that light that I am emotionally disturbed when I find any inference propagated that we should forget the past. I do not want to forget it; but I want to do justice in the future for those who have been so wickedly misused in the past. That is the one contribution I dare to make to this debate.
§ Lord Beloff
This might be an opportunity for a member of the Jewish community to which the noble Lord so generously and feelingly referred to make a few comments. I do not differ from him substantially in that it is always desirable that we should consider the present and the future rather than the past. However, my difference from him and from the movers of the amendment which we are discussing—that is, the amendment moved by my noble friend Lord Campbell of Alloway—may be that we risk confusing ourselves about the present and the future by a too ready acquiescence in the obliteration of the past.
I listened with great care, as I am sure did all Members of the Committee, to the long, complicated and informed speech of my noble friend Lord Campbell of Alloway and also to the supporting speech made by the noble and learned Lord, Lord Morton of Shuna. I may disagree on detail. I have never regarded Mr. Roy Hattersley as a supreme authority on the internal affairs of my party. However, if my noble friend feels differently, that is no reason for disagreement.
During my noble friend's speech I felt that if the argument was, as it largely seemed, a technical and legal one in opposition to the views of the noble and learned Lord the Lord Advocate, it might have come better from someone who had not in our previous debate on war crimes been so emphatic as to the undesirability in principle of proceeding against war criminals. It has been said that we have not yet considered the Bill. That is true. However, we considered in great detail the Hetherington-Chalmers report. Although I agree with my noble friend that most of the speakers were critical of the conclusions reached, I should point out that three or four noble Lords, including my noble friend Lord Jakobovits—who, unfortunately, cannot be with us today—made speeches on the other side.
My chief reason for feeling as I do about the amendment is due to its wording, because it provides:The provisions … shall not apply to any trial involving alleged war crimes".Does that mean that the amendment's proponents do not believe that those crimes took place because the word "alleged" is affixed to the word "crimes"? I should have thought that only the lunatic fringe of the neo-Nazis—
§ Lord Morton of Shuna
Perhaps the noble Lord will allow me to intervene. The reason for the wording is that it is that of Clause 1 of the War Crimes Bill which refers to alleged offences.
§ Lord Beloff
Alleged offences refers to the possibility of the prosecution of alleged offenders. It is true that until persons have been prosecuted, and conceivably found guilty, what is against them is the allegation that they have committed offences. To use the words "alleged war crimes", particularly in the light of some speeches made when the Hetherington-Chalmers Report was debated in this place, seems to me to call into question the veracity of those crimes as detailed at considerable length by Sir Thomas Hetherington and Mr. Chalmers.
§ Lord Campbell of Alloway
If the noble Lord will give way for one moment: no, we do not call into question the veracity of those terrible crimes. No one but a heartless lunatic would do so. All we are saying is that no man is assumed to be guilty until he has been convicted of having committed the offence.
§ Lord Beloff
I am delighted to hear, and I hope that the Committee is delighted to hear, that statement. The question then arises: would it not have been better to put the amendment in that form or to have made the amendment refer specifically to the procedures to which the noble Lord objects? I do not wish this afternoon to return to or prolong the debate about those crimes. It may be more appropriate to so do if and when we have a Second Reading. To have tabled the amendment in those words today prejudices the issue, and I hope that the Commitee will agree with my noble and learned friend the Lord Advocate and reject it.
§ The Earl of Longford
It is entirely appropriate that a Jewish Member of the Committee of the utmost distinction and eloquence should contribute to the discussion. I wish to say a few words only from the point of view of Christian forgiveness. If anyone wishes to know what are my qualifications, I at least have written a book on forgiveness which was published last year. I cannot see anyone else in the Chamber who can claim that peculiar distinction.
I submitted in that book—I do not say that it was widely reviewed, but those who reviewed it did not dispute my submission—that forgiveness in the modern sense is a Christian contribution to civilisation. I agree that a large part—some people would say the larger part—of Christian ethics derives from the Old Testament, but not forgiveness of man by man. There is a chapter in my book about the Jewish approach to forgiveness. I have discussed the matter with various rabbis. No one would claim—at least, I do not believe that any rabbis would claim—that one can find forgiveness of man by man in the Old Testament. One can find the forgiveness of man by God, but not the forgiveness of man by man. That concept was introduced by Jesus Christ. Rabbis would tell us that it was introduced into the Jewish religion soon afterwards in the Talmud. It is a distinctive Christian virtue. Most of the Christian ethics derive from the Old Testament.
947 Wherever forgiveness started, most of us would today regard it as a virtue to be a forgiving person. If one was to say that someone was an unforgiving person that would be regarded as insulting and almost libellous. We regard the capacity to forgive as a virtue, but there is one problem. If anyone studies the matter theoretically he soon runs into that problem: no one can forgive someone who has not injured oneself.
§ The Earl of Longford
My noble friend says "Hear, hear", but she may not have considered all the implications. If one says that no one can forgive anyone unless one has been injured by that person, murderers can never be forgiven because the men that they have murdered are dead. One must realise the limitations in the idea that one can only forgive those who have injured oneself. No community could ever forgive another community. The Germans could never be forgiven. Some parties—I will not say which—in the long history of Anglo-Irish relations would never be able to forgive the others, and so forth; and so I am afraid I take my stand on the idea that forgiveness must not be limited to injuries one has suffered oneself. We must approach this whole matter in the spirit of forgiveness and I therefore support the noble Lord, Lord Campbell.
Jews all over the world are undoubtedly a people of a unique religious culture and inspiration. It does no service to them to stir up feelings and inflame them at present. It does them much more of a service to treat them as having the same idea of forgiveness as Christians. In that spirit I hope that not just Christians but Jews, and atheists for that matter, will support the noble Lord, Lord Campbell.
§ Lord Hailsham of Saint Marylebone
I wonder whether we are doing ourselves justice in this debate. We are discussing a change in the law of Scotland on Amendment No. 292. I am interested in original sin, and I hope that I may be forgiven, whether or not I am a forgiving person. However, I hope that we can get down to the kind of argument advanced by the noble and learned Lord, Lord Morton of Shuna, in support of the amendment or go in the other direction and destroy his argument. To use the amendment as a curtain raiser for the Second Reading of the Bill which is before this place is abusing the time of this place. We have now been discussing the amendment for nearly 90 minutes, and I believe that we should return to its merits.
§ Lord Wilberforce
I wish to say just one or two words of a strictly prosaic character. There is, first, a procedural difficulty. Many Members of the Committee feel that it would have been easier if we had been discussing that matter in the context of the War Crimes Bill, but unfortunately we cannot do that—it is not our fault—because that Bill has been passed by the other place and sent to us in the form in which it is.
It is a simple, three-clause Bill which merely says that the courts should have jurisdiction to try certain 948 matters. It does not enter into procedure except with regard to committal procedures which are not relevant here. It has nothing in it which would enable this place to deal with the procedure, the evidence and the mode of trial in relation to war crimes, and so this place has no alternative but to take the opportunity which is available on the Scottish Bill to deal with the procedure in the way that it believes to be appropriate, on the assumption no doubt that there will be the passage of something like the War Crimes Bill and that trials will take place.
The Committee has to consider whether the changes proposed in Amendment No. 292 are appropriate to be made in the context of a war crimes trial. The Committee will have to decide that matter on the basis of two simple considerations. First, there is the argument about changing the rules after the offence has been committed, which is undoubtedly what has been done. It has been admitted that those provisions are included in order to deal with war crimes. Many Members of the Committee may feel that it is not right to change the rules at this time. These criminals should be tried under the rules which existed at the time when they committed their offence. I say no more about it, because if noble Lords are not impressed by that argument, they are not impressed. If they are, they will decide accordingly.
The other point that requires a few more words is whether the changes are appropriate to be made in the context in which we are considering them. One starts from a simple point of principle which the noble Lord, Lord Macaulay, has already stated to the Committee. It is that in principle under English and Scottish law a man has a right to be tried in the presence of his accusers and of his witnesses. He has the right to have his witnesses there and to confront them; the right for the jury to be confronted with them and for them to be confronted with the jury.
If that is not done, the accused loses an important right which may be vital to his defence. It is that as the witness gives his evidence the accused is able to say to his counsel, "This witness is lying; that witness is confused. Put this question to the witness; his memory is totally wrong". He has the right to suggest any matter which can be put to the witness that may effect his credibility. That is a fundamental right in any trial, civil or criminal. If we are to have a television link instead of an actual presence in court, that right is likely to be removed.
As regards the television link, let us discuss it rather than confusing it with references to video links. I am sure that the Committee appreciates that it is not possible to pass a general provision saying that evidence by television links is to be admissible in a court of justice. That cannot be done. We must consider the possibility, the relevance and the justice in relation to certain kinds of proceedings. That is the way in which the English law has dealt with the matter—through a general section in the Criminal Justice Act 1988 which is similar to the clause proposed here. It was left to the Government, to the Secretary of State, to bring that provision into force at different times as he thought fit in relation to different subjects.
949 There is a similar clause in this Bill, Clause 49. I think I am right in saying that it has been brought into force in England only as regards children and the possibility of children under 14 suffering from abuse or sexual assault giving evidence by television link. This was done after careful consideration and research. Evidence was taken from psychiatrists. There was much consultation. Finally, it was decided to introduce it. The provision is now working very well and has proved to be a worthwhile change in the law. It enables better evidence to be obtained from the child and can be devised without injustice to the accused person's right. That concerns children and no doubt Scotland will follow the same line, if it has not already done so.
Then there is fraud, and a clause was introduced, as the Committee has been told, to enable complicated charges of fraud to be dealt with otherwise than by lengthy trials lasting years. This is being investigated, controlled experiments are being carried out and at some time sooner or later, no doubt under strict conditions and controls, the provision may be extended to cases of fraud. In other words, we can only move from step to step when we consider it appropriate in the interests of justice.
Compare with those cases the case of an alleged war criminal regarding whom there are witnesses all over the world. The Committee will have in mind that in almost all these cases there is not just one witness, as with a child, and not even several, as in the case of accountants. There are probably dozens of witnesses. In one example referred to in the Hetherington Report 40 people were interviewed in about five different countries. The Demjenjak trial lasted 14 months, with witness after witness. In a recent libel action in the courts here, witness after witness was called from different countries with different regulations.
To think of applying the television link to that situation causes one's imagination to boggle, simply considering the logistics. I do not wish to put this from the logistical or the practical point of view, but simply on justice. We cannot do justice to an accused charged with a war crime committed 50 years ago in a remote country by permitting evidence to be given in distance countries, possibly under the control of a foreign official, possibly of a foreign judge, simply because it is relayed by way of television to the court.
I put it to the Committee as a matter of elementary justice that this ought not to be done, quite apart from the logistical or the retrospective argument. I apologise for not taking longer and being more expansive. This is a simple point of principle on which the Committee must decide. I commend Amendment No. 293ZA to its consideration.
§ 6 p.m.
§ Lord Callaghan of Cardiff
I shall be brief as I am neither a lawyer nor an ecclesiastic but someone who merely tries to apply a modicum of common sense to what has been put to us. I was not able to be present at the last debate. But I feel that this is one of the most important questions which your Lordships will have to decide. For that reason I 950 have read very carefully the Hetherington-Chalmers Report. I have read the debates in the House of Commons. With all respect to the noble Lord, Lord Beloff, even the House of Commons can sometimes produce something of wisdom, of merit and worthy of consideration. Of course I read your Lordships' report.
I must say that I find the arguments on both sides extremely cogent and evenly balanced. For the reason that the noble and learned Lord, Lord Hailsham, gave this afternoon, I do not intend to say how my mind is moving on the matter. I am glad that I gave way to the noble and learned Lord. Lord Wilberforce. I think that his argument is absolutely irrefutable. I simply do not see how a provision which was introduced in relation to children and fraud at that time and which should be introduced stage by stage can now be used for a crime of a totally different quality in every respect from those to which the legislation was intended to apply initially. This dreadful crime requires the most detailed consideration if we are to be just not only to those who will be tried for the offence but to those who suffered by it.
I have no doubt in the light of what I have seen and heard that, although it may cause difficulty to the Government, they would be wise to think again about the matter and to accept the amendment from the noble Lord, Lord Campbell. If they do not, I shall certainly follow him into the Lobby tonight.
§ Lord Grimond
I very much support what has been said by the last two speakers. We are on a narrow but extremely important point. I wish to return to what the noble and learned Lord the Lord Advocate said. He moved a new clause to the Bill which he said was chiefly necessary in the case of homicide and serious fraud. Since then we have had other examples where it might be useful.
It is noticeable that the new clause was not in the original Bill. It cannot therefore be a matter of great urgency that it should be introduced. Nor can it be said, as I think the noble and learned Lord the Lord Advocate said, that the law of Scotland must in all respects be brought into line with that of England. The law of evidence in Scotland is already different from that in England and the fact that it may remain so for a time in a small but important matter cannot be sufficient reason for pressing this new clause.
I am opposed to re-opening the question of war criminals and holding war trials. I think it is repugnant in law and in common sense and it may set an undesirable precedent throughout the world. What will happen in Israel, in Russia and other such countries?
Even if I were in favour of war trials, I should be deeply concerned about the distortions of our law which are apparently entailed. I hope they would be limited to a minimum. It is quite clear that if the new clause is applied to war trials, as has been said by previous speakers, it will open up a whole range of difficulties which were pointed out by the noble and learned Lord, Lord Morton, and many others. It would be a range which it was never intended should be dealt with by this type of provision.
951 If the Committee were to pass the amendment to the new clause it would not thwart the noble and learned Lord the Lord Advocate in his object of bringing new technology to bear upon crimes such as serious fraud and capital offences. All of that would still stand. As I understand it, it would simply exclude from the new provisions this very peculiar type of legal proceedings called war trials. It seems to me that whatever happens to the War Crimes Bill the Committee would be very well advised to take that step in regard to this Bill and to ensure that nothing is altered in the trial of war crimes by provisions which have apparently been brought in, rather belatedly and possibly not solely with war trials in mind, at a time when they will be extremely relevant to this very doubtful new form of justice.
§ 6.15 p.m.
§ Lord Donaldson of Lymington
As a judge I have been brought up on a number of principles, two of which I venture to think may be relevant to the debate today. The first is that neither the judges nor the courts, not I believe the citizens of this country, are in the least concerned with the motives of government in introducing legislation or particular clauses in legislation. The noble Lord, Lord Campbell of Alloway, seems to attach great importance to the Government's motives in introducing the amendment. For my part I know that the judges, and I should have thought most people concerned, would look simply at the wording of the statute as it emerges from Parliament. We are not concerned with the views of judges, or even, with great respect, with the views of Members of this Chamber as individuals. We are concerned with the will of Parliament, and that will be found purely in the legislation.
The second principle is that judges must never anticipate changes in the law in the sense of taking action in anticipation of them. I was made very well aware of that in 1974 with the election of a Labour Government when I was president of the Industrial Relations Court. It was as clear as daylight to me that the new Parliament would repeal the 1971 Act. Nevertheless it was my duty to go on administering that Act without the slightest regard to the likely changes in the law until the moment when the Act received Royal Assent. I do not claim credit for that. It is merely the way in which judges are expected to behave.
That principle does not apply to this Chamber, but it is a salutary rule that this Chamber should not legislate for a situation with which it is not yet faced. If the Bill were to receive Royal Assent tonight with this amendment, we should have the astonishing position of this Chamber saying that the provision shall not apply to a war crimes trial, knowing full well that it is impossible to hold a war crimes trial either in England or in Scotland as the law stands at the moment.
Surely the right time and place to debate the matter is in the context of a war crimes Bill when it comes before this Chamber. Whether or not it is appropriate for it to be dealt with on Second Reading is not a matter about which I know anything or on which I express a view. However, I assume that it 952 will be possible to put down an amendment in Committee which would have precisely the effect of this amendment. It would have the great advantage that it would apply to England and Wales as well as to Scotland.
My noble and learned friends Lord Morton of Shuna and Lord Wilberforce have raised wider issues which apply to the amendment. It has been said, for example, that the impact of television evidence may be very different from the impact of evidence given by somebody who is present at the trial. That I would entirely accept. It is a point which deserves consideration. I would hope that the judge would be able to protect the accused in that respect. I would also hope that there would be power for the appropriate Minister to bring the law in by stages and perhaps confine it to particular types of trial for which there is existing jurisdiction.
One has only to think of the situation, for example, of the foreign bank manager—a Middle Eastern or Swiss bank manager—who does not wish to come to this country. One wants details of accounts of which he is in charge. Why should he not give evidence on a video link? On the other hand, if one was asking for identification evidence to be given on a video link, I for my part would be extremely wary. If I were exercising the powers which a judge would have under this clause I should hesitate for a very long time before I was prepared to give leave.
It has been said that under the law of Scotland, about which I know absolutely nothing and on which I express no view one way or the other, the trial judge in a criminal trial has no copy of the depositions—namely, the evidence that the prosecution witnesses in front of an examining magistrate or in other ways have said that they will give. It may be that the Scottish system works better. However, I can see a problem if a witness is to give evidence via a video link and one does not know what he is going to say. But I do not believe that that is a problem to be solved by primary legislation. Why cannot the judge say that he is not prepared to agree to video evidence being given unless he is furnished in advance with a statement of what the witness will say?
I have taken points rather at random as I jotted them down. I come now to the point that it is said that there may be a problem regarding immunity for counsel. I have every sympathy with counsel having immunity. I have even more sympathy with the judge having immunity. I shall not be in a position to conduct any trial—a criminal trial involving war crimes or any other criminal trial—because it is the tradition of my office that one does not try criminal cases, quite apart from the fact that I am an appellate judge in any case. It did not occur to me before this debate but I am now acutely aware that if in court I used my absolute immunity to criticise the secret police of Ruritania and was foolish enough to visit Ruritania afterwards, my immunity would not get me very far. That does not seem to me to be an objection to introducing such evidence.
Then it is said that we must ensure that remote witnesses are free of pressure. I agree. However, do not imagine that that is not also true of British 953 courts. I have a strong recollection of sitting in the divisional court and having an interesting argument as to whether a wife could withdraw the plea of guilty which she had entered in the magistrates' court when she and her husband stood in the dock together. The husband had told her before they entered the dock that if she did not plead guilty he would kill her. It struck me that that was an extremely good reason for the wife to withdraw her unequivocal plea of guilty.
I remember thinking at the time that one could have a situation in which there were two accused standing next to each other and one covertly holding a knife against the other. There can certainly be pressure in an English court. Obviously one has to watch for it, and if one has been deceived by it one has to put it right afterwards.
If people are worried about pressures in the foreign studio that could be met by some representative being present. I also suggest that pressure is not likely to be exerted in the foreign studio; it will be exerted outside the studio. There is probably no way of dealing with that, but it has to be taken into account as a possibility.
Some noble and learned Lords suggested that there were great problems as to what law of evidence would apply. I do not think that there is any problem about that. Scottish law or English law would apply. The video would merely be an extension of the trial court, so I cannot see the problem there.
Although the proposed provision to be imported into Scottish law would have to be used with great care and would put a considerable burden on judges in the first instance, the Scottish courts should have that power available to them. We should not discuss war crimes at this stage when there is no jurisdiction anywhere in the United Kingdom to try a case for a war crime.
§ Lord Hutchinson of Lullington
Perhaps I may have five minutes of the Committee's time to beseech the Committee to support Amendment No. 293ZA. I should like to speak for five minutes as an advocate and to ask the Committee to realise what the situation with regard to war crimes will be if it accepts the provisions of the proposed Government amendment.
I should like to support every word that the noble and learned Lord, Lord Wilberforce, said about the reality. What will happen when I, as an advocate, sit at my desk and an accused person comes in and says, "I have been charged with a war crime"? I shall say, "What is your defence?" and the person will say, "I was not there. I am not the person who has been identified. I have reason to believe that the witness who gave evidence did so under threat. I was somewhere else. I have an alibi to which 20 people can speak and I remember signing at least 50 documents 50 years ago at the town and in the building where I was". What will the advocate do?
The situation is totally grotesque. The advocate must first deal with the identification. Presumably, the trials will take place under the rules of British justice or, in this context, Scottish justice. Will there be a parade? Will a dock identification be allowed?
954 With regard to the alibi, how do you find those 40 witnesses? How do you set about it? Having read the Hetherington Report, the noble Lord, Lord Callaghan, will know perfectly well that it is the most astonishing document regarding the preparation of evidence for the prosecution. There is not one word in that report as to how you prepare the case for the defence. How can an advocate sitting in Scotland set out to establish an alibi involving 40 witnesses 50 years ago in Poland and German-occupied Russia? The situation is grotesque.
You apply for legal aid. You travel with your solicitor and look for the 40 people. When you find them, you ask them to give evidence on a television link at an astronomical cost. It is ludicrous. How can you discover whether the witness is giving his evidence under pressure? How can you discover that on a television link? How can you inquire into the background of how he is giving evidence? The documents in the Hetherington Report are set out in a whole chapter. The people concerned went through a mass of documents. With a translator, they went through whole archives in Freiburg, Berlin, Munich, Koblenz, Israel and the United States. How on earth could anyone be defended on that basis and obtain legal aid to go through all those archives and search out documents from 50 years ago?
I could continue for a long time. I am considering the government amendment as an advocate looking after the interests of a person who has been charged. I have used the word "grotesque" twice and I shall use it for a third time. The situation would be totally grotesque. I ask the Committee to bear that matter in mind and to look at it as a purely practical matter. Is it right and sensible to let the amendment go forward?
§ Lord Mishcon
It has been emphasised that this is a question of conscience and personal belief after trying to weigh up difficult arguments, in an important historic matter, as my noble friend Lord Callaghan said. I merely ask, as did the noble and learned Lord, Lord Hailsham: is this the time, the place or the appropriate debate in which to come to any such decision? Unlike others, I do not speak as a theologian. In this instance, I do not speak as a lawyer. I shall try to introduce what I believe every one of us wishes to protect; namely, the clarity of thought and disciplined business methods of this House.
I know that the noble Lord, Lord Campbell of Alloway, will forgive me—he knows that I have the highest personal regard for him—if I say that I believe he made a great mistake in making a speech of considerable length which was addressed not to the amendment but to the War Crimes Bill, the Second Reading of which is to take place in this House in the future.
What are we considering at this moment? We are not even considering what the noble Lord, Lord Hutchinson of Lullington, or learned judges spoke about. I say that with deep respect. At this moment we are discussing nothing other than the government amendment to introduce into Scots law what is already in a 1988 Act dealing with the law of evidence in England and Wales. I could have 955 understood it if someone—perhaps the noble Lord, Lord Hutchinson of Lullington—had said, "We do not like this as evidence because it does not produce justice and we shall therefore vote against the amendment". I would have understood that and all the arguments about television and technology and the difficulties of defendants, which may apply in any number of cases, would have been completely relevant.
We are not asked to consider such matters in this amendment. Presumably the amendment suggests that all that is perfectly all right. We know about the use of technology in certain types of cases, including those involving children and fraud. It may well be interesting to use it in drug cases. It may be interesting and useful to have that kind of evidence in other cases. That is what we are considering at this moment. Do we accept that it is a useful provision to have in our law of evidence in Scotland, with which, I am sure, the Scots will deal in the same way as we shall in England and Wales; in other words, there will be gradation, as the noble and learned Lord, Lord Wilberforce, said? Shall we see to it that it applies only in cases where we think it proper?
That would be a weird case for the statute book and for history and future generations to look at. They will see that we in this House accepted a provision stating that evidence which could be given by video or television could be given in any number of cases, but that we went down in history as saying that it could not be used for war crimes. What an odd state for our statute book! That is the consideration to which I now turn very quickly. As a lawyer I was taught to be concise and to try to be brief. I intend to follow that lesson.
The noble and learned Lord, Lord Wilberforce, whom we all treat with respect and affection was wrong when he said that this was the only opportunity to deal with this matter if we feel that this method of evidence should not be used in war crimes cases. When the War Crimes Bill comes before this House, there is nothing to stop us from saying that this provision and the relevant section in the Criminal Justice Act 1988 shall not apply in respect of war crimes. There is nothing to stop this Chamber from doing that when we have considered the whole ambit of war crimes at the appropriate time.
For those who are in favour of not having that evidential measure for war crimes, that is the way, the place and the time in which to deal with this matter. I beg this Committee, for more than one reason, not to pass an amendment which states that this is perfectly correct for every type of case one can think of, that it is absolutely right that it should be the law of Scotland and that it is quite fair in every respect except in one case—that of war crimes.
This an ill formulated amendment, whatever our views may be on the issues that we have debated this afternoon.
§ 6.30 p.m.
§ Lord Fraser of Carmyllie
In view of the lengthy and involved contributions that have been made I should like briefly to summarise. In my wildest 956 dreams I never expected that, in promoting a law reform (miscellaneous provisions) Bill, I should be subjected to such a wide theological discussion of issues which are well beyond anything to do with the law in Scotland.
However, I have a much more important concern. The War Crimes Bill was not introduced by this Government because it was in any sense a manifesto commitment or anything of that kind. It followed a clear indication in another place as to the will of that Chamber with regard to the introduction of legislation. When that legislation was then introduced it secured a massive majority. From the voting records at that Second Reading, it is quite impossible to determine in any sense a party political divide on the matter. Furthermore, in that Bill no attempt was made to disapply Section 32 of the Criminal Justice Act 1988, although, as the noble Lord, Lord Campbell of Alloway, appreciates, specific reference was made to it at one time by the Shadow Home Secretary. Against that background I should be extremely concerned to deal with matters relating to war crimes in a Bill such as this.
Section 32 of the 1988 Act was introduced in general terms, although quite clearly it originated from the report of the noble and learned Lord, Lord Roskill. At the time it went through this Chamber, it was dealt with in general terms. In many respects I can speak briefly on this matter. The noble and learned Lord the Master of the Rolls dealt with it very succinctly and accurately indeed. I still consider that it would be bizarre to have this provision excluded for Scotland while the provision remained in place for England. Of course there are differences in our evidential law; nevertheless, this is a matter of such importance that such a move would be quite extraordinary.
I am bound to say that, given the very clear involvement of the trial judge at the centre of this provision, I am a little surprised that there is such distrust of a member of the Scottish judiciary as to the way in which he would be likely to approach this matter and, were there to be major difficulties in the adducing of this evidence, that he would not restrict it.
To consider the separate terms, first he has to allow the arrangements of the television link to be set up. He also has to be satisfied as to the arrangements for giving evidence. If there were any attempt to put pressure on the witness, it would be quite clear that the judge could act. The law is the law of Scotland as it obtains at the moment; it is certainly not the law of the foreign country.
I am in a further difficulty at this point. As is made clear in the Hetherington-Chalmers Report at paragraph 1.7, the report consists of two parts. The first part has been published and the second has not been published, but the Committee will appreciate that I have been privy to its contents. I shall try to answer some of the points that have been raised and in particular those difficulties indicated by the noble and learned Lord, Lord Hutchinson, as an advocate. He is not the only advocate in this Chamber, but I understand what he is driving at. If there were to be difficulties as to identification, for example, I have little doubt but that the trial judge would 957 immediately seize upon them and exclude the evidence altogether or refuse to allow the link to be set up. With respect to the noble and learned Lord, Lord Morton of Shuna, I think that under our law in Scotland it would be perfectly possible for it to be mad; clear in making the original application to the court whether or not identification was at the centre of the evidence to be taken.
I could say much more about this matter but, for reasons that I have already indicated in opening, I am anxious to avoid giving any indication of the type of evidence which might usefully be obtained from a foreign state in the event of the introduction of a war crimes prosecution. I hope that one thing is clear. Whatever the noble Lord, Lord Campbell of Alloway, may have said, I have never sought to disguise the fact—I repeated it in my opening remarks—that I should like to have this provision if there is to be a war crimes prosecution. Beyond that, I want this provision—Amendment No. 292—for the law of Scotland. I am grateful to the noble Lord, Lord Mishcon, for his understanding of why I want it.
I am a little weary of being told that we do not prosecute white collar fraud sufficiently when a very useful evidential tool at my disposal might be whipped away should Amendment No. 292 be rejected by this Committee. Most important of all, it seems to me that the sensible way to approach this issue is to consider the War Crimes Bill and give it a Second Reading. As the noble and learned Lord the Master of the Rolls indicated—and I respectfuly agree with him—if the provision relating to television links is to be disapplied, let it be disapplied in that Bill and in the rest of the United Kingdom as well.
§ Lord Morton of Shuna
Can the noble and learned Lord assure the Committee that if an amendment to do what he suggests is put into the War Crimes Bill, that would be in order, in view of the Long Title of the War Crimes Bill? I understand that the Government intended to table an amendment in connection with licensing and that certain difficulties arose. It seems to me, in view of the Long Title of this Bill, that there might be difficulties about that being in order.
§ Lord Fraser of Carmyllie
I have already indicated that I consider that that is the appropriate place to do it. I certainly do not advocate that anyone should do that, but I believe that that is the appropriate place to do it in relation to both jurisdictions. That is why I think it is inappropriate to deal with it at this stage.
§ Lord Fraser of Carmyllie
As I understand matters, yes, or I should not have suggested it to the Committee. It would have been utterly dishonourable of me to have done otherwise. I hope that the noble Lord would not expect me to suggest an inappropriate way of dealing with the matter. I would not have dealt with it in any other way unless I thought that it was something that should be done.
958 This has been quite an extraordinarily complicated debate and it is unusual that such a point should have occurred during the course of a debate on a law reform (miscellaneous provisions) Bill. I should like to urge the Committee to agree to Amendment No. 293. If Amendment No. 293ZA is pressed to a Division, I shall object to it.
§ Lord Campbell of Alloway
May I first thank all noble Lords, and my noble and learned friend the Lord Advocate, who have spoken in this debate? The key to the reason why this amendment ought to be supported is the refusal or inability of my noble and learned friend the Lord Advocate to meet the request for an undertaking which was just asked for by the noble and learned Lord, Lord Morton. So far as I understand—
§ Lord Mishcon
I am sorry to interrupt the noble Lord, as I did previously, but he will be very keen to see that nobody is misled in the Committee and that any accusation made against an honourable Member of his own Front Bench is made seriously and properly. The noble and learned Lord the Lord Advocate, as I understood him, said that it would be perfectly appropriate, as he saw it, for an amendment to be moved to the War Crimes Bill saying that this evidentiary procedure should not be invoked or be able to be used in the event of war crimes. That was made perfectly clear to the Committee, certainly to me.
§ Lord Campbell of Alloway
First, I made no accusation against anybody. Secondly, I understood that my noble and learned friend the Lord Advocate said that he was unable to meet the request for the undertaking. If my hearing misled me, I shall be so informed and I shall immediately apologise for having misheard. But I make no accusation. I am very surprised that the noble Lord, Lord Mishcon, could imagine that I would make an accusation, even against anyone of his own Front Bench let alone on my own. I do not indulge in accusations.
As I understood, and Hansard will speak for itself, the noble and learned Lord, Lord Morton of Shuna, made a request as to how this matter might be dealt with on the Second Reading of the War Crimes Bill. As I understood the position, that request could not be met. In those circumstances, Amendment No. 293ZA is clearly to be supported and it puts paid to the elegant speech of the noble Lord, Lord Mishcon—perhaps that is why he intervened, but it does if my understanding is correct—because Amendment No. 293ZA keeps the arena of debate wide open and avoids the pre-emption which is inherent in Government Amendment No. 292.
The justification is quite simply that of the noble and learned, Lord, Lord Wilberforce, that justice cannot be done if Amendment No. 292 is used in war crimes—a justification simply put that attracted the support of the noble Lord, Lord Callaghan, the noble Lord, Lord Grimond, and other noble Lords.
According to the Written Answer—and my noble and learned friend the Lord Advocate cannot suppose otherwise because it is the Government's Written Answer on 8th March in Hansard —the 959 intended purpose of Amendment No. 292 is as an aid to conviction in war crimes trials and on that basis it is right that one should exclude this purpose. On that basis, I hope your Lordships think it right that I should take the opinion of the Committee.
§ The Deputy Chairman of Committees (Lord Hayter)
The Committee has been debating Amendment No. 293ZA, which is an amendment to Amendment No. 292. For the sake of clarity, I shall read out the amendment which we have been debating. It reads:("( ) The provisions of subsections (1) and (2) above shall not apply to any trial involving alleged war crimes committed in German-held territory during the Second World War.").
§ 6.45 p.m.
§ On Question, Whether the said amendment (No. 293ZA), as an amendment to Amendment No. 292, shall be agreed to?
§ Their Lordships divided: Contents, 137; Not-Contents, 62.960
|DIVISION NO. 1|
|Ackner, L.||Greenway, L.|
|Ailesbury, M.||Gridley, L.|
|Aldington, L.||Grimond, L.|
|Allenby of Megiddo, V.||Grimston of Westbury, L.|
|Allerton, L.||Grimthorpe, L.|
|Alport, L.||Hailsham of Saint Marylebone, L.|
|Ardwick, L.||Halsbury, E.|
|Astor, V.||Hampton, L.|
|Belhaven and Stenton, L.||Hanworth, V.|
|Blackstone, B.||Harris of Greenwich, L.|
|Blake, L.||Harrowby, E.|
|Boyd-Carpenter, L.||Havers, L.|
|Bridge of Harwich, L.||Hayter, L.|
|Brightman, L.||Henderson of Brompton, L.|
|Broadbridge, L.||Hives, L.|
|Brooks of Tremorfa, L.||Howie of Troon, L.|
|Brougham and Vaux, L.||Hutchinson of Lullington, L.|
|Buckmaster, V.||Hylton-Foster, B.|
|Butterworth, L.||Irvine of Lairg, L.|
|Caccia, L.||Jauncey of Tullichettle, L.|
|Callaghan of Cardiff, L.||Johnston of Rockport, L.|
|Campbell of Alloway, L. [Teller.]||Joseph, L.|
|Cledwyn of Penrhos, L.||Kimball, L.|
|Coleraine, L.||Kirkhill, L.|
|Colnbrook, L.||Kitchener, E.|
|Colwyn, L.||Lauderdale, E.|
|Cork and Orrery, E.||Listowel, E.|
|Craigavon, V.||Lockwood, B.|
|Dacre of Glanton, L.||Longford, E.|
|Darcy (de Knayth), B.||Lucas of Chilworth, L.|
|David, B.||Lurgan, L.|
|Davies of Penrhys, L.||Lyell, L.|
|De L'Isle, V.||Macaulay of Bragar, L.|
|Dean of Beswick, L.||Masham of Ilton, B.|
|Dilhorne, V.||Mersey, V.|
|Donaldson of Kingsbridge, L.||Monson, L.|
|Donegall, M.||Montgomery of Alamein, V.|
|Ellenborough, L.||Morton of Shuna, L. [Teller.]|
|Elles, B.||Mottistone, L.|
|Erne, E.||Munster, E.|
|Falkland, V.||Nicol, B.|
|Foot, L.||Norfolk, D.|
|Fortescue, E.||Ogmore, L.|
|Fraser of Kilmorack, L.||Orkney, E.|
|Gardner of Parkes, B.||Orr-Ewing, L.|
|Glenarthur, L.||Oxfuird, V.|
|Perth, E.||Shaughnessy, L.|
|Platt of Writtle, B.||Sherfield, L.|
|Plummer of St. Marylebone, L.||Simon of Glaisdale. L.|
|Ponsonby of Shulbrede, L.||Soper, L.|
|Prys-Davies, L.||Stodart of Leaston, L.|
|Rea, L.||Stoddart of Swindon, L.|
|Rees, L.||Swinfen, L.|
|Renton, L.||Thomson of Monifieth, L.|
|Renwick, L.||Thorneycroft, L.|
|Rochester, L.||Tordoff, L.|
|Roskill, L.||Tryon, L.|
|Russell, E.||Vaux of Harrowden, L.|
|Sainsbury of Preston Candover, L.||Waldegrave, E.|
|St. John of Bletso, L.||Whitelaw, V.|
|Salisbury, M.||Wilberforce, L.|
|Saltoun of Abernethy, Ly.||Williams of Elvel, L.|
|Seear, B.||Winchilsea and Nottingham, E.|
|Selborne, E.||Winstanley. L.|
|Selkirk, E.||Winterbottom, L.|
|Shannon, E.||Young, B.|
|Addington, L.||Lloyd of Hampstead, L.|
|Alexander of Tunis, E.||Long, V. [Teller.]|
|Auckland, L.||McColl of Dulwich, L.|
|Balfour, E.||Mackay of Clashfern, L.|
|Barnett, L.||Mackie of Benshie, L.|
|Beloff, L.||McNair, L.|
|Belstead, L.||Margadale, L.|
|Blatch, B.||Mishcon, L.|
|Campbell of Croy, L.||Monk Bretton, L.|
|Carmichael of Kelvingrove, L.||Mountevans, L.|
|Carnarvon, E.||Nathan, L.|
|Carnegy of Lour, B.||Nelson, E.|
|Carnock, L.||Newall, L.|
|Carter, L.||Pender, L.|
|Cawley, L.||Phillips, B.|
|Cocks of Hartcliffe, L.||Prior, L.|
|Craigmyle, L.||Quinton, L.|
|Crathorne, L.||Reay, L.|
|Denham, L. [Teller.]||Redesdale, L.|
|Donaldson of Lymington, L.||Sanderson of Bowden, L.|
|Elliot of Harwood, B.||Serota, B.|
|Elliott of Morpeth, L.||Sharpies, B.|
|Erroll, E.||Skelmersdale, L.|
|Faithfull, B.||Stedman, B.|
|Fraser of Carmyllie, L.||Strabolgi, L.|
|Galpern, L.||Taylor of Gryfe, L.|
|Hacking, L.||Thomas of Gwydir, L.|
|Harmar-Nicholls, L.||Tranmire, L.|
|Henley, L.||Ullswater, V.|
|Hughes, L.||Underhill, L.|
§ Resolved in the affirmative, and amendment to the amendment agreed to accordingly.
§ 6.54 p.m.
§ [Amendment No. 293A not moved.]
§ On Question, Amendment No. 292, as amended by Amendment No. 293ZA, agreed to.
The Minister of State, Scottish Office (Lord Sanderson of Bowden) moved Amendment No. 293B:
After Clause 44, insert the following new clause:
("Homeless due to risk of violence
In subsection (3) of section 24 of the Housing (Scotland) Act 1987 (definition of homelessness), after paragraph (b) there shall be inserted—
(BB) it is probable that occupation of it will lead to—
- (i) violence; or
- (ii) threats of violence which are likely to be carried out, from some other person who previously resided with that person, whether in that accommodation or elsewhere, or".").
§ The noble Lord said: I shall be speaking also to Amendment No. 304AB, which is consequential upon Amendment No. 293B. I gather that the amendment is grouped with Amendment No. 297D, which stands in the name of the noble Lord, Lord Macaulay of Bragar.
§ The amendment in my name, together with its consequential amendment, is designed to achieve broadly the same effect as the amendment of the noble Lord, Lord Macaulay of Bragar. Fortuitously, since the noble Lord tabled his amendment, we have had some time to develop a version which should fully meet the concerns that he was addressing.
§ The concern with which the amendments are intended to deal is that a person who is at risk of violence from someone who does not live in the same house, for example from their ex-spouse, would not normally be able to be classified as homeless by the local authority. Two years ago when this Chamber first debated the then Housing (Scotland) Bill a similar amendment was discussed. At that time I indicated that the Government had some sympathy with the aim of the amendment but would like to consider the matter further. On doing so we found broad support for a measure along these lines. It is fortunate that the Law Reform (Miscellaneous Provisions) (Scotland) Bill which deals with several matters relating to matrimonial law offers us the opportunity to address this issue.
§ The amendment will allow someone at risk of violence to be treated as homeless if the violence is threatened by someone else who has lived with the person concerned at some time. In some ways it goes wider than the amendment of the noble Lord, Lord Macaulay, in that it does not specify those other people who might offer violence. However, in another way the amendment I propose is narrower since the persons threatening violence must have lived with the person at risk. I believe that the government amendment draws the line in the right place. I also understand that the Scottish Homeless Group which has played a large part in pursuing this matter is happy with the approach in the government amendment. I therefore commend the amendment and the consequential amendment, Amendment No. 304AB, to the Committee. I beg to move.
§ Lord Carmichael of Kelvingrove
I thank the noble Lord for his amendment. I take his word that it covers all the points that were raised in Amendment No. 279D. Because it is a complicated and rather important amendment, perhaps he will accept that, although my noble friend and I do not move that amendment, we shall wish to take advice at Report stage. I am happy that he has tried to accommodate us.
§ On Question, amendment agreed to.
Lord Fraser of Carmyllie moved Amendment No. 293C:
After Clause 44, insert the following new clause:
("Admission and detention of mental patients Detention under the Mental Health (Scotland) Act 1984
.—(1) After section 26 of the Mental Health (Scotland) Act 1984 there shall be inserted the following section—
26A.—(1) This section applies where—
- (a) a patient is detained in a hospital under section 26 of this Act;
- (b) a change in the condition of the patient makes it necessary in the interests of his own health or safety or with a view to the protection of other persons that the patient continue to be detained after the expiry of the period of 28 days referred to in subsection (3) of that section; and
- (c) no application for admission has been submitted to the sheriff in respect of the patient and it is not reasonably practicable to submit such an application before the expiry of that period.
(2) Where this section applies, a relevant medical practitioner may lodge with the sheriff clerk for a sheriff of the sheriffdom within which the hospital is situated a report on the condition of the patient complying with the following provisions of this section and such report shall, when so lodged, be sufficient authority for the continued detention of the patient in the hospital where he is until the expiry of a period of three days (excluding Saturdays, Sundays and court holidays) from the date when the report was lodged.
(3) In this section "relevant medical practitioner" means a medical practitioner who—
- (a) is approved for the purposes of section 20(1)(b) of this Act; and
- (b) has personally examined the patient.
(4) A report referred to in subsection (2) of this section shall not be lodged unless, where practicable, the consent of the nearest relative of the patient or of a mental health officer has been obtained.
(5) A report referred to in subsection (2) of this section shall include—
- (a) a statement by the relevant medical practitioner that in his opinion—
- (i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for at least a limited period; and
- (ii) the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons;
- (b) a statement that such a consent as is mentioned in subsection (4) of this section has been obtained or, as the case may be, a statement of the reasons for the failure to obtain that consent; and
- (c) a statement as to whether the relevant medical practitioner is related to the patient and of any pecuniary interest that the relevant medical practitioner may have in the admission of the patient to hospital.
(6) Where a patient is detained in a hospital under this section, the relevant medical practitioner shall forthwith so inform—
- (a) the Mental Welfare Commission;
- (b) where practicable, the nearest relative of the patient (except where the nearest relative has consented under subsection (4) of this section); and
- (c) the local authority (except where a mental health officer appointed by that authority has consented under subsection (4) of this section),
and shall inform the patient of his right of appeal under subsection (7) of this section and of the period within which it may be exercised.
(7) A patient who is detained in hospital under this section may, within the period referred to in subsection (2) of this section, appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.
(8) Where a patient is detained in hospital under this section the authority for his detention under section 26 of this Act shall cease.
(9) Subject to section 21 (3B) and (3C) of this Act, a patient who has been detained in a hospital under this section shall 963 not be further detained under this section nor detained under section 24 or 26 of this Act immediately after the expiry of the period of detention under this section.
(2) In section 21 of that Act (approval by sheriff of applications for admission)—
(a) after subsection (3) there shall be inserted the following subsections—
(3A) Within three days (excluding Saturdays, Sundays and court holidays) of an application for admission being submitted, the sheriff shall—
- (a) approve the application; or
- (b) where he decides to hold a hearing before determining the application, hold such hearing.
(3B) An application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act shall, when submitted to the sheriff, be sufficient authority for the continued detention of the patient under that section until the expiry of a period of three days (excluding Saturdays, Sundays and court holidays) from the date when the application was submitted.
(3C) Where a hearing in relation to an application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act is, for whatever reason, adjourned, the authority for the detention of the patient under that section by virtue of subsection (3B) of this section shall continue until the application for admission is finally determined."; and
(b) after subsection (5) there shall be inserted the following subsection—
(6) For the purposes of this section, an application is submitted to the sheriff when it is lodged with his sheriff clerk.
(3) In section 26(7) of this Act (short term detention), at the beginning there shall be inserted the words "Subject to section 21(3B) and (3C) of this Act,".
(4) In section 28(4) of that Act (return and readmission of patients absent without leave: hospital), for the words "24(3), 25(2) or 26(3)" there shall be substituted "21(3B) (subject, where applicable, to section 21(3C)), 24(3), 25(2), 26(3) or 26A(2)".
(5) In section 33 of that Act (discharge of patients: hospital)—
- (a) in each of subsections (2) and (4), after the word "26," there shall be inserted "26A,"; and
- (b) after subsection (6) there shall be inserted the following subsection—
(7) Where an order for discharge is made in respect of a patient in relation to whom an application for admission has been submitted but has not been finally determined, the managers of the hospital shall notify the sheriff to whom the application has been submitted of the making of the order for discharge.
(6) In section 35 of that Act (appeals to the sheriff: hospital), in each of subsections (2) and (3), after the word "sections" there shall be inserted "or under section 26A of this Act".
(7) In section 59 of that Act (Interpretation of Part V), at the end there shall be added the following subsection—
(4) In this Part of this Act, "court holidays" means any day which is a court holiday by virtue of section 10(2) of the Bail Etc. (Scotland) Act 1980.".").
§ The noble and learned Lord said: It might be useful in moving the amendment if I also speak to Amendment No. 294 and Amendment No. 304AC, which is consequential. I do not need to elaborate on Amendment No. 294 as the intention in the new clause that the Government put forward as Amendment No. 293C is to meet exactly the point that the noble and learned Lord, Lord Morton of Shuna, first put forward in this matter.
§ Perhaps I may briefly explain the intention and effect of the Government's proposed new clause, which is designed to correct a lacuna in the Mental 964 Health (Scotland) Act 1984 highlighted in an appeal heard in this House in 1988. Sections 24 and 26 of that Act provide for the detention of mentally disordered persons in case of emergency for three days and 28 days respectively. In cases where it is considered necessary to detain a patient beyond the 28 days allowed in Section 26, an application to the sheriff for admission to hospital has to be submitted under the provisions of Sections 18 and 21 of the Act.
§ That procedure works satisfactorily in the vast majority of cases but very occasionally—and we are only speaking of one or two cases each year at the most—a patient detained under Section 26 may initially make good progress and then suddenly and unexpectedly deteriorate towards the end of the 28-day period. In such cases there may be either insufficient time to complete a full Section 18 application for admission or, where there is time to lodge such an application, insufficient time for a sheriff to consider the application before the authority to detain expires. In either case, the medical practitioner has no choice but to discharge the patient although it may well not be in the best interests of either the patient or the public to do so.
§ The new clause is designed to overcome those problems where there is insufficient time to complete a full Section 18 application for admission. Then, subject to a number of safeguards, the medical practitioner may lodge a report on the patient's condition with the sheriffs clerk to enable the patient to be detained for up to a further three days to allow a full application to be submitted.
§ Where a Section 18 application has been lodged but there has been insufficient time for a sheriff to hear it before the expiry of the 28-day period, the new clause provides that detention can be extended for up to a further three days to enable a hearing to take place. As an important new safeguard for patients, we have provided that the sheriff must hold an initial hearing of all Section 18 applications within three days of their being lodged.
§ As I indicated, this amendment is designed to improve upon the drafting of the amendments tabled by the noble and learned Lord, Lord Morton of Shuna. However, in moving it I should acknowledge his very valuable contribution in bringing the matter before the Committee. It was originally prompted by a suggestion from the Law Society of Scotland. It was also mentioned by the Mental Welfare Commission for Scotland. I beg to move.
§ 7 p.m.
§ Lord Morton of Shuna
I am extremely grateful to the noble and learned Lord the Lord Advocate for moving this amendment and for what he said about my Amendment No. 294. To call it my amendment is perhaps rather presumptuous because it was drafted by the Law Society. However, I must take responsibility for it and I am glad to do so.
This provision is very important although it affects only a few people. It is a missing link which must be put right. I am glad that something that the Law Society and I were able to do has enabled the Government to insert this miscellaneous provision 965 into this miscellaneous provisions Bill. I welcome the amendment.
§ On Question, amendment agreed to.
§ [Amendments Nos. 294 and 295 not moved.]
Lord Morton of Shuna moved Amendment No. 296:
After Clause 44. insert the following new clause:
("Appointment of acting nearest relative
In section 56 of the Mental Health (Scotland) Act 1984, in subsection (3) there shall be added at the end "(d) that the nearest relative is unsuitable to act as such" ").
§ The noble and learned Lord said: Section 56 of the Mental Health (Scotland) Act provides that the sheriff may direct that the function of the nearest relative shall be carried out by somebody else and provides three conditions for that to be done. The three conditions are: first, that there is no nearest relative; secondly, that the nearest relative is himself incapable because of illness or mental disorder; and, thirdly, that the nearest relative is unwilling or considers it undesirable to act.
§ This amendment proposes a fourth condition; namely, that the nearest relative is unsuitable to act. I am sure that Members of the Committee will readily see that there may be somebody who is not mentally ill but is still acting in a manner which everybody considers to be not in the best interests of the patient. Therefore, it would be appropriate that he should not fulfil the function of nearest relative. I beg to move.
§ Lord Fraser of Carmyllie
I fully accept that there may be circumstances in which a nearest relative may be unsuitable to act as such. For example, it may be that in the past the nearest relative has been implicated in the abuse of a patient. It would then be clearly inappropriate for such a person to exercise the nearest relative functions. I am grateful to the noble and learned Lord and to the Law Society of Scotland for bringing this matter to my attention and I accept the amendment.
§ On Question, amendment agreed to.
Lord Morton of Shuna amoved Amendment No. 297:
After Clause 44, insert the following new clause:
("Reservation of minerals
.—(1) A party to any contract for the purchase or lease of heritable property shall not be entitled to resile from such contract by reason only that the title to such heritable property contains a reservation of minerals unless either—
- (a) the contract otherwise provides, or
- (b) the owner of the minerals is entitled to enter the surface of the heritable property.
(2) Any provision in any deed which enables the owner of minerals to work them without liability to pay compensation for damage caused to the surface of the ground or the buildings thereon shall be construed as if any such provision contained an obligation on the part of the owner of the minerals to pay compensation to the owner of the surface and buildings thereon for any such damage caused by any working of minerals carried out after the commencement of this Act.
(3) The provisions of subsection (I) above shall apply to any contract concluded after the commencement of this Act and the provisions of subsection (2) shall apply to any provision in any deed whenever granted.966
(4) The compensation payable under subsection (2) above shall be assessed by a single Arbiter appointed, failing agreement, under the Arbitration (Scotland) Act 1894.
(5) The provisions of this section of this Act shall not apply to any minerals or mineral rights vested in the British Coal Corporation constituted under the Coal Industry Nationalisation Act 1946.
§ The noble and learned Lord said: This amendment is suggested by the Law Society and is designed to meet a difficulty which is relatively common and inappropriate. It arises in two situations: first, where somebody buys a suburban house and then wishes to get out of the transaction and does so because there is no reservation of minerals. That person bought the house to live in and not in order to mine in the land. However, because there is no reservation of minerals he is able to get out of the transaction.
§ The other difficulty arises where there is in the superior a right to work minerals without a right to compensation. That renders the occupier's right to sell his land virtually impossible and it becomes unmarketable. This clause seeks to provide presumptions which apply unless the contract otherwise provides. This is an important area. I beg to move.
§ Lord Fraser of Carmyllie
The purpose of this amendment is to specify circumstances in which it would and would not be acceptable to resile from a contract to purchase heritable property when a title was found to contain a reservation of minerals. The amendment also implies into deeds a compensation clause for the owner of the surface where there is a right to work minerals.
As the noble and learned Lord indicated, conveyancing problems have arisen where minerals may be reserved to their owner but no provision is made to compensate the person who owns land or property on the surface above. This new clause would substantially strengthen the position of the surface owner or lessor but he in turn would no longer enjoy a general right to resile from a contract for purchase or lease in the event of a reservation of minerals being identified after a contract had been agreed.
Where I think the clause falls short is in dealing with the rights of the mineral owner for any loss of rights he may suffer. It is a fundamental principle of Scottish law that rights are not merely confiscated without compensation. It may be a fundamental principle of legal systems to which we are subject that that right should not be confiscated without compensation.
In pointing out that difficulty I do not wish to indicate that I have no sympathy with the problems which exist. However, I believe that the matter could be dealt with more comprehensively as part of the review of property law which the Scottish Law Commission is currently undertaking. With that explanation, I hope that the noble and learned Lord will feel able to withdraw his amendment.
§ Lord Morton of Shuna
In the confident hope that some time before the end of the century the Law Society will come up with something which may enable amendments to be made, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 297A not moved.]
Lord Carmichael of Kelvingrove moved Amendment No. 297B:
After Clause 44, insert the following new clause:
("Intentional homelessness: matrimonial rights
The following subsection is inserted after section 26(2) of the Housing (Scotland) Act 1987—
(2A) It shall not be competent for a housing authority to hold a person to be intentionally homeless solely on the grounds that he or she does not intend to seek to exercise his or her rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as expressed in section 3(1), section 4, section 13 and section 18".").
§ The noble Lord said: I shall speak also to Amendment No. 297C. The purpose of these two amendments is to try to close what has become a loophole in existing legislation for the rehousing of an abused woman. The introduction of the matrimonial homes Act aimed to give women suffering from marital violence additional protection if they wish to remain in the matrimonial home through, for example, exclusion orders. It was never intended to be used as an alternative to rehousing under the homelessness legislation if the latter is what the woman chose, taking into account all relevant factors including the safety of herself and her children. That was made quite clear during the passage of the matrimonial homes Bill through Parliament. In subsequent guidance the Secretary of State made it quite clear that it was not meant to apply in the way that it is now sometimes interpreted.
On 30th June 1981 it was stated in Hansard that the Secretary of State considered,
that a decision by a spouse not to exercise their legal rights against the other spouse should not be regarded as an indication of intentional homelessness".
§ That was also stated in the Scottish Development Department Circular No. 21/1982. The Scottish code of guidance on the homelessness legislation and the Scottish Development Department circular makes it quite clear how local authorities should respond to abused women seeking rehousing. Nevertheless the recently published Scottish Home and Health Department research on the operation of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 confirms that a significant number of Scottish local authorities continue to ignore this and women in many parts of the country may be classified as intentionally homeless or as not homeless at all if they choose not to exercise their rights under the matrimonial homes Act.
§ We believe that legislation is required to ensure uniform practice and that abused women are not forced to endure continued risk of violence. I beg to move.
§ Lord Morton of Shuna
I believe that it was the original intention that Amendment No. 298 should be included in this grouping. It may perhaps be in accordance with practice that I speak to that amendment now rather than later.
Amendment No. 298 tries to amalgamate into one what the noble Lord, Lord Carmichael, has tabled 968 in two amendments. That is perhaps the only merit of my amendment as opposed to his. There is no difference between us as to purpose.
The difficulty arose after a decision of the Court of Session. As we are in a state where apparently we are supposed to confess our sins, I say that it was not my decision but on behalf of the Court of Session I am penitent. The decision arose in the case of MacAlinden v. Bearsden and Milngavie District Council. The trial judge said that the person was not homeless because she had failed to operate Section 18 of the matrimonial property Act and was therefore intentionally homeless.
The amendment seeks to avoid that problem, of which the Secretary of State is aware and with which he has dealt, but which unfortunately local authorities duck because they have to meet the cost. The attempt here is to make the position more clear. I hope that even if our amendments are not properly drafted, at least the principle will be acceptable to the Government.
§ Lord Sanderson of Bowden
I feel as though I were back in 1988; the only difference is that the noble and learned Lord has gone to the Cross-Benches and is now a judge. However, we have all been here before.
The amendments seek to prevent local authorities, in determining whether an applicant is homeless, from taking into account whether he or she has exercised, or intends to exercise, his or her rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. However, I remain of the view which I expressed in 1988 that the 1981 Act provisions should not be bypassed, since they offer a straightforward remedy for those who no longer wish to share the occupancy of their home with their spouse or partner, and have good reason for taking that decision. It seems to me to be entirely right that in most cases an attempt should be made to use the 1981 Act to resolve these kinds of domestic problem.
I agree entirely that, in some circumstances, an applicant under the homelessness legislation will not be able to make use of the 1981 Act rights. There will also be some cases where for an applicant to seek to make use of the rights might increase the risk of violence or harassment taking place. I accept therefore that there will be some cases when a local authority should assess an applicant as unintentionally homeless, even though he or she has not taken all the steps open under the 1981 Act. However, I believe it would be wrong to seek—as the amendments do in essence—to prevent by statute a local authority from taking into account an applicant's failure to make use of those rights. It should be up to the local authority to consider that together with all other matters when carrying out its duty under the homelessness legislation to enquire whether an applicant is homeless or threatened with homelessness. We should not limit the authority's discretion in the way the amendment proposes.
I do, however, recognise the concern expressed by your Lordships that some local authorities may not make allowance for those cases where it is impossible or inappropriate for an applicant to make use of his or her 1981 Act rights. That is a matter which we 969 will bear in mind in our review of the code of guidance on the homelessness legislation which is currently under way and which we hope to publish certainly in the course of this year, probably in the summer or early autumn, with a view to clarifying and tightening the advice we give to authorities.
In view of that explanation, I hope that the noble Lord will agree to withdraw the amendment.
§ Lord Carmichael of Kelvingrove
I thank the Minister for his reply and perhaps I may correct some statements which I made. The noble and learned Lord, Lord Morton of Shuna, was in the same trap of referring to spouses as if they were women only, whereas a spouse is either party to the marriage.
I accept that a local authority must have certain rights in the matter and that there could be abuse. Weighted against the abuse that could be caused to a spouse, I would rather lean on the side of the homeless spouse. But I will look carefully at the Minister's reply and am grateful for the trouble he has taken. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 297C and 297D not moved.]
§ 7.15 p.m.
Lord Carmichael of Kelvingrove moved Amendment No. 297E:
After Clause 44, insert the following new clause:
Section 4(3)(a) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 is omitted.").
§ The noble Lord said: The purpose of this amendment is to prevent the unnecessary confusion which is recognised by the judiciary to complicate conditions for the granting of an exclusion order. Scottish Home and Health Department research points to the possible incompatibility between Section 4(2) and Section 4(3)(a), demonstrating the confusion which can arise regarding the circumstances in which an exclusion order may be granted.
§ The removal of Section 4(3)(a) would mean that, after the court had successfully applied the test in Section 4(2) that an exclusion order was necessary for the protection of the applicant, the only factor which would make it unreasonable to grant the exclusion order would be where the matrimonial home referred to was tied to the man's occupation or livelihood. As the legislation stands it is possible to apply subsequent tests of reasonableness or balance of hardship which can conflict with the already determined necessity for protection for the woman.
§ Those are the basic reasons behind the amendment. I beg to move.
§ Lord Sanderson of Bowden
I am aware that a case for abolishing subsection (3)(a) has been made from time to time. It was a recommendation of a research study undertaken by the University of Strathclyde and published in December 1988. The suggestion has been considered afresh by the Scottish Law Commission in its Discussion Paper No. 85, which 970 was published on 29th March, and the commission came down resolutely for retention of the provision, which it sees as essential to prevent the mandatory requirement in subsection (2) of the Act from operating unreasonably. The commission catalogues at paragraph 6.34 of its paper a number of absurdities that could arise if the subsection were repealed. I shall quote only one: a court would have to grant exclusion orders against both spouses if each applied for an order and proved that his or her health would be injured by the conduct of the other if both remained in the home.
I am sure that with that, and other examples which are contained in the submission from the Scottish Law Commission—a copy of which I shall be happy to provide—the noble Lord might feel well advised to withdraw the amendment.
§ Lord Carmichael of Kelvingrove
With that advice and the promise of more information I have little option but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 297F:
After Clause 44, insert the following new clause:
("Priority need for accommodation: extension to 16 and 17 year olds.
In section 25(1)(c) of the Housing (Scotland) Act 1987, after "physical disability" there shall be inserted "or because he is 16 or 17 years old".").
§ The noble Lord said: The amendment seeks to ensure that in Scotland young people of 16 or 17 years of age are considered vulnerable following the homeless persons legislation contained in Part II of the Housing (Scotland) Act 1987. The effect is that local authorities would have a statutory obligation to house 16 and 17 year-olds who are homeless.
§ The legal rights of 16 and 17 year-olds in Scotland differ from those in England and Wales, especially where young people have been in local authority care. In Scotland social work departments do not have that statutory duty. Young persons of 16 or 17 years of age have the right to make decisions for themselves. In England, the social services department has a statutory duty to care for young people whereas in Scotland there is no such duty.
§ The Government recognised this situation in the Housing (Scotland) Act 1986 when 16 to 17 year-olds in Scotland were given, for the first time, the right to apply, and be considered, for local authority housing. The social security reforms of September 1988 removed the right to income support from 16 to 17 year-olds throughout the United Kingdom. Partly as a result of that, together with a general rise in youth homelessness, the supporting specialist emergency stop-over accommodation in Scotland has been heavily over-subscribed and the chances of young people finding suitable permanent accommodation have diminished.
§ Recent research carried out by a postgraduate student at Heriot-Watt University showed that only 11 out of Scotland's 56 authorities have even a policy of considering 16 to 17 year-olds automatically as vulnerable under the provisions of Part II of the Housing (Scotland) Act. A wide variety of 971 organisations, including National Children's Homes, Barnado's and Shelter, contributed to the homeless persons legislation. The Scottish DSS figures show that one-third of all United Kingdom applications by 16 and 17 year-olds for income support under the severe handicap provisions are from Scotland. There are extremely disturbing reports of an increase in prostitution among young people who are selling their bodies for a place to stay. The Minister will be aware that that problem has been raised many times in this Chamber—the cardboard cities, and so on. I hope that he will give us some encouragement and that there is a possibility of at least keeping some of these young people, who may otherwise move away, in Scotland. I beg to move.
§ Lord Sanderson of Bowden
We are, of course, well aware of concern about 16 and 17 year-olds who become homeless. I do not want to get into too much detail about the steps the Government have taken relating to that group, but I should point out that every 16 or 17 year-old who is neither in full-time education nor in employment is guaranteed a YTS place. That should mean that they all have a right to a certain income. On top of that, 16 and 17 year-olds are entitled to housing benefit to help meet their housing costs. Following concern expressed last year that some young people were falling through the net, the Government made it possible for 16 and 17 year-olds to qualify for income support in certain circumstances.
I recognise that despite these developments some 16 and 17 year-olds will still become homeless and could be at risk of exploitation. In those circumstances I strongly urge local authorities to use their discretion actively to assist those young people to find appropriate accommodation. However, I do not think it is either necessary or desirable to include 16 or 17 year-olds in the category of those with a priority need. Still less do I think it desirable to include families including a 16 or 17 year-old in that category. That would enormously widen the category and would serve, I suggest, to blur the priorities which local authorities might set rather than to clarify them.
However, I can give a crumb of comfort to the noble Lord. As I said earlier, we are currently considering a revision of the code of guidance on the operation of the homelessness legislation. I can assure the Committee that we shall be considering carefully the guidance given in the code to local authorities about young people to ensure that they are dealt with fairly and appropriately. I believe that that is the best way forward. On the basis of the changes we made last year for income support to be available in certain circumstances together with the assurance I have given, I hope that the noble Lord will consider withdrawing the amendment.
Lord Carmichael of Kelvingrove: I am most grateful to the Minister. He said that he personally urged local authorities in this respect and I wondered whether there was not more that the Government could do. He has assisted me by saying that the Government will issue a new code of guidance to local authorities.
972 I accept that local authorities have a very big job to do and must have some discretion in this matter. We do not know the history of everyone who is sleeping rough and looking for accommodation, but I hope that the code of guidance will help take some young people off the streets into better accommodation. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 297G: After Clause 44, insert the following new clause:
("Duty of Rent Officers to keep registers. In section 70(2) of the Housing (Scotland) Act 1988 after paragraph (c) there shall be inserted—
(cc) Rent Officers shall keep and make publicly available a register, in such manner as is prescribed by the Secretary of State, detailing determinations made by them in exercise of functions conferred on them by this section.".").
§ The noble Lord said: The purpose of this amendment is to require rent officers to provide a register, which is to be available for public inspection, detailing market rents determined by them for the purposes of housing benefit and rent allowance subsidy.
§ Section 70 of the Housing (Scotland) Act gives the Secretary of State power to require rent officers to carry out functions in connection with housing benefit and rent allowance subsidy. Orders detailing the role of rent officers in this respect have now come into operation. In essence, they require rent officers to determine the market rent for deregulated tenancies', that is. most new tenancies coming into being after 2nd January 1989, in Scotland specifically, where a claim has been made for housing benefit.
§ The housing benefit regulations prohibit local authorities from paying housing benefit in full where rents are considered to be over-expensive. In looking at this question they can have regard to the market rent figure determined by the rent officer. However, the situation is complicated by the fact that while rent officers determine market rents, that rent does not become the contractual rent payable to the landlord. In other words, whatever the rent officer considers to be a market rent, the tenant, whether or not relying on housing benefit, is duty bound to pay whatever he originally agreed to pay even where that is above the market rent.
§ In certain parts of some cities that situation can be considerably exploited. The current position is that many low income tenants, when entering into a contract with a landlord, do not know—indeed, they have no way of knowing—what is a reasonable market rent for the area and type of accommodation. Thus, if they have to rely on housing benefit payments to assist in meeting the rent they have no way of knowing whether they will be able to meet their obligation to the landlord.
§ The Minister will be aware that in my previous incarnation I had great difficulty because in part of the area I represented rents tended to be high and well above the assistance available from the DHSS. I came across that situation many times and it could be tragic. I should like to have the Minister's views; 973 perhaps he can give me as much assistance as he has on previous amendments. I beg to move.
§ 7.30 p.m.
§ Lord Sanderson of Bowden
I am always grateful to the noble Lord. I shall give him as much help as I possibly can in this matter, which I find a little more difficult than others. The amendment seeks to require the rent registration service to maintain a public register of the determinations rent officers make in their function of determining market rents for tenancies referred to them by local authorities in connection with payments of housing benefit.
Under the arrangements the responsibility for determining the amount of housing benefit paid remains fully with the local authority. The determinations made by the rent officer are there to help the local authority make its decision. It would therefore be wrong in our opinion to make public, as the amendment seeks to do, specific information which is being provided on a kind of agency basis to the local authorities. It seems to me it is for local authorities to decide what information to publish about the matters they have taken into account in assessing housing benefit. There is nothing to prevent them doing that. However, I should perhaps explain that in about two-thirds of the cases referred to their, rent officers can more or less immediately accept the rent being charged as being within market levels. That is not to say that these rents are always at the maximum market level. In many cases they are significantly below. Any register of these rents would therefore not provide an indication of the market level of rents in an area which would be of real use.
On these grounds I do not wish to support the noble Lord's amendment. But I would make a further point. Rents, particularly in certain parts of the private rented sector, can fluctuate fairly widely and frequently. Therefore the value of any historical register of only that section of the private rented sector which accommodates people receiving housing benefit would be extremely limited. It could in fact mislead in some circumstances.
I know that the noble Lord has much more experience than I have. But as far as I am aware enormous problems have not been raised since the Act was passed. For the reasons I have given I hope that he will see that there are difficulties in bringing in rent registration and a register of the kind that he would wish.
§ Lord Carmichael of Kelvingrove
I think I knew the argument that the Minister would put forward before he rose. I wanted some way in which people who were looking for accommodation would know what reasonable rents were in the area. The rent officers and the local authorities, with their much greater powers, can find out what rents are in an area. I know of many people who have secured accommodation and spent money on it only to discover later that they were unable to have the full rent from the DHSS. They were paying rather more, and enough to make life difficult. However, they were not paying sufficient to decide to look for 974 another place. I am disappointed that we cannot get even an anonymous register. Perhaps that is an idea for local authorities. They might begin by issuing a broadsheet, which would be helpful.
§ Lord Sanderson of Bowden
There are ways of obtaining information from many sources similar to the way in which the rent officer obtains information, including advertisements and so on. There is nothing to prevent a local authority publishing whatever it wishes in this connection, as the noble Lord said.
§ Lord Carmichael of Kelvingrove
I thank the noble Lord for that information. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 297H:
After Clause 44, insert the following new clause:
("Classification of homelessness: whether occupation of accommodation is reasonable. In section 24 of the Housing (Scotland) Act 1987 (definition of homeless persons and persons threatened with homelessness), after subsection (2) there shall be inserted the following subsections—
(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
(2B) Regard may be had in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation."").
§ The noble Lord said: The purpose of this amendment is to allow local authorities to consider whether it is reasonable in all the circumstances for a person who has accommodation or who is threatened with homelessness to be classed as homeless. The inclusion of this new clause in Part II of the Housing (Scotland) Act 1987 would bring Scottish legislation for the homeless into line with the English and Welsh legislation. A similar clause was added to the Housing Act 1985 by the Housing and Planning Act 1986. This amendment came as a result of the famous Pulhofer judgment which I believe we discussed at considerable length some years ago.
§ In considering whether a person became homeless intentionally, the current Scottish legislation demands that the question of whether it would have been reasonable for him to continue to occupy the accommodation can be considered. However, the test of intentionality is generally seen as a secondary test in that the first thing that an applicant must prove is that he is homeless or threatened with homelessness.
§ In other words, persons living in accommodation which it is not reasonable for them to continue to occupy must first make themselves homeless before they can apply for assistance. Thereafter, the local authority to which they apply must consider whether it would have been reasonable for them to continue to live in their previous accommodation.975
§ That is very harsh on people who often have no option but to give up their accommodation with no idea of whether the local authority will be under an obligation to rehouse them. It would appear much more sensible to bring the Scottish legislation into line with that applying to England and Wales. In this way the relevant local authority can make a decision on whether an individual's accommodation is so inadequate for his needs as to merit him being considered homeless. That would avoid the necessity of a person first leaving the current accommodation before the question of reasonableness can be considered by the local authority.
§ I believe the question of reasonableness in one decision was so appalling that local authorities did not abide by it. In the Pulhofer case the decision was so wide open that many local authorities ignored it. I would like the case of the homeless to be considered further so that they will be given better consideration by local authorities, whether they are homeless or in totally inadequate accommodation. I beg to move.
§ Lord Sanderson of Bowden
I was genuinely very interested to hear how the noble Lord presented this amendment. I am aware that a similar provision to that set out in the amendment exists in the parallel English legislation. However, Amendment No. 293B, which has been accepted, deals with cases where someone is threatened with violence to their home by someone resident elsewhere. That is a more specific provision than that proposed by this amendment. But I am aware that this amendment potentially affects a wider range of cases than people threatened with violence. Having heard what the noble Lord has said, I should like to consider further how far an amendment along these lines would still be desirable.
I believe that the noble Lord has a good point. I give an undertaking to come back to this matter at a later stage. I wish to consider very carefully what he has said and to look at the various cases that may be affected. The Government's wish would be to bring Scottish legislation into line in this area.
§ Lord Carmichael of Kelvingrove
I am grateful to the Minister. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Davidson
I suggest that this would be a convenient moment for the Committee to adjourn. I suggest that we return to the Committee stage at twenty-five minutes before nine o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.