Lords Sitting of 22 April 1991

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

The Gulf War: Aid to Jordan
Lord Dulverton Lord Dulverton asked Her Majesty's Government:
What support they are prepared to give to Jordan to alleviate the consequences of the Gulf war.
Lord Reay: My Lords, we have a long-standing bilateral aid programme for Jordan and that will continue. We provided close to £11 million in humanitarian aid last year, both bilaterally and through the European Community, and have added over £3 million this year. In addition the European Community is making £105 million available to alleviate the effects of the Gulf crisis, of which the United Kingdom's share will be £20 million.
Lord Dulverton: My Lords, I thank my noble friend on the Front Bench for that Answer. Perhaps I may ask him this supplementary question. Is he aware that evacuees passing through Jordan from August to December 1990 numbered 800,000 and that Jordanians and Palestinians returning to Jordan from Kuwait numbered 200,000, in addition to the enormous number of Palestinian refugees already in Jordan? Is my noble friend also aware that the children among those refugees, who have to be placed in schools and universities within Jordan, number 57,000 and that there is no room for them?
Lord Reay: Yes, my Lords. According to the figures that I have, Jordan received between 700,000 and 800,000 foreign nationals from Iraq and Kuwait during the early days of the Gulf crisis. We greatly appreciated Jordan's efforts to ease their plight.
Lord Hatch of Lusby: My Lords, can the noble Lord say from the figures that he gave the House whether there was an increase in the allocation last year? Is it the case that the United States has reduced its aid since the Gulf war?
Lord Reay: My Lords, I cannot comment on the position of the United States. In the case of the United Kingdom, as I said, Britain has a long-standing bilateral aid programme. That amounted to £4.7 million in 1990-91 and is expected to be £5.23 million in the current financial year. We also urged early disbursement of European Community aid.
Lord Cledwyn of Penrhos: My Lords, we welcome the Government's attitude towards aid to Jordan at this time, recognising that Jordan has suffered a great deal as a result of the war, partly because of the Jordanian Government's stance towards Iraq and towards the coalition. Is it not the case, as my noble friend said, that the United States stopped aid to Jordan on 10th April last, thus depriving Jordan of a very substantial sum of money? Can the Minister say when the Gulf Co-operation Council, which could provide additional aid to Jordan, is meeting next? As the noble Lord is aware, Jordan is in a parlous economic position at the present time. Are the Government supporting aid from the Gulf Co-operation Council?
Lord Reay: My Lords, I am afraid that I do not have the answer to the question which the noble Lord the Leader of the Opposition asks regarding the Gulf Co-operation Council. Nor, as I said, can I answer any question with regard to United States aid. The noble Lord is correct in saying that Jordan has long been a valued friend in the region and that that friendship was under some strain during the Gulf crisis. Jordan remains a force for moderation and stability in the region. We remain in close contact with Jordan and believe that it has an important role to play in the pursuit of peace in the Middle East.
Lord Mayhew: My Lords, while I appreciate what the noble Lord said in his last answer, does he not

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agree that from the start to the finish of the war the King of Jordan was acting under duress and that for nearly 40 years before the Gulf war he was a force for sense and sanity in the Middle East? Does he recall the statement of Mr. Baker on 1st March that the Americans were forgiving and forgetting Jordan's role in the war? Can we take it from the noble Lord's answers that the same goes for the British Government?
Lord Reay: My Lords, I agree with the noble Lord that the Jordanian leadership was placed in a difficult position because of Jordan's dependence on supplies of Iraqi oil and because of the high proportion of Palestinians in Jordan and the high degree of popular support for Saddam Hussein. I repeat that Jordan has long been a valued friend in the region and we believe that it is a force for moderation and stability there.
The Earl of Onslow: My Lords, how long does my noble friend assume that aid to Jordan will go on? Will it be for the foreseeable future and into the next century? Can we go on for ever aiding such countries?
Lord Reay: My Lords, I am afraid that I have no figures for the next century.
Lord Molloy: My Lords, are the Government at least in reasonably close touch with the Jordanian ambassador at the Court of St. James, a situation which makes being an ambassador worthwhile? The Government normally adopt that posture; is it being maintained?
Lord Reay: My Lords, as I said, we remain in close contact with Jordan. My right honourable friend the Secretary of State visited Jordan in January and my honourable friend the Minister of State was there last month. Both of them held talks with King Hussein and contacts at that level will continue.
Lord Mowbray and Stourton: My Lords, although I understand what my noble friend said about the embarrassment of the Jordanian Government in the recent crisis, is it nevertheless sensible to assume that one can continue to give aid, however moderating an influence King Hussein is, if the Jordanian Government continue to break sanctions, assuming that we continue to apply them?
Lord Reay: My Lords, so far as I am aware, Jordan enforced sanctions to the best of her ability. She invited the sanctions committee to monitor her performance by putting observers on the border. There were some violations of the embargo by private businessmen, but we are satisfied that the authorities worked to prevent them.

Vehicle Theft Prevention
2.44 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
What measures they are taking to check vehicle theft in this country.
The Minister of State, Home Office (Earl Ferrers): My Lords, my right honourable friend the Home Secretary is to meet the Society of Motor Manufacturers and Traders and the Association of British Insurers next week and motor manufacturing companies the following week in order to discuss ways of improving car security. We shall discuss further with the Department of Transport how best to secure agreement in Europe to a new European Community directive on vehicle security. Home Office publicity, which is aimed at the prevention of car crime, will continue at a high level. The car theft index, which was published last week, will be widely circulated.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that informative Answer. His round over those jumps dealing with the crime campaign last week was successful. However, is he aware that our record on car theft in this country is second only to that of Denmark, if we take Europe as a whole, and last year amounted to 494,000 car thefts? Is he further aware that there is an epidemic of this kind of prank by youngsters? Will he consider the point that the offence with which these offenders are charged—taking and driving away—is not adequate in the magistrates' courts, where the penalty is normally small, and that it should be graded as a theft, which it certainly is?
Earl Ferrers: My Lords, I agree that the number of thefts that take place of and from cars is alarming. My noble friend referred to 494,000 recorded offences in 1990. That was an increase of 26 per cent. over the previous year. Then there were 773,000 offences of theft from vehicles, which was an increase of 23 per cent. over the previous year. Those offences amounted to 25 per cent. of all recorded crime. A great deal can and should be done by owners themselves. Twenty-three per cent. of car owners admit leaving their car unlocked at some time. The last British crime survey showed that 10 per cent. of those who were interviewed and who had had their car stolen admitted that they had not locked it. It is one thing to penalise people for the crime that they have committed, but it is quite another to prevent them as far as possible from carrying out crimes against property.
Lord Nugent of Guildford: My Lords, is my noble friend aware that he has the golden opportunity, with the Criminal Justice Bill before the House, to consider an amendment which would define the offence as theft, which it is? Will he be so good as to consider that point?
Earl Ferrers: My Lords, I shall certainly consider my noble friend's suggestion.
Lord Ezra: My Lords, does the noble Earl agree that alarm systems fitted in cars would be one deterrent against theft? However, does he further agree that many alarm systems fitted these days go off without any external interference whatsoever and that the point of having an alarm is impaired if it simply disturbs the neighbours? Could it not be made mandatory for alarm systems fitted in cars to work effectively?
Earl Ferrers: My Lords, it is presumably the commercial objective of all manufacturers of car protection equipment to ensure that their items work effectively and do not go off at the wrong time. If the alarms go off at the wrong time and the manufacturers are in competition with others whose products work satisfactorily, they will not sell many pieces of equipment. However, I agree with the noble Lord, Lord Ezra, that it is one of the problems relating to all forms of protection from burglary or theft that instruments go off inadvertently. The car manufacturers are aware of that problem.
Lord Boyd-Carpenter: My Lords, on the point raised by my noble friend Lord Nugent of Guildford, is not taking away someone's car in that way theft and is it riot already open to the Crown Prosecution Service to charge with theft rather than merely with unlawful taking away?
Earl Ferrers: My Lords, my noble friend may well be right.
Lord Stallard: My Lords, is the noble Earl aware that his announcement about the conferences will be welcomed and that we hope that something constrictive will come from them? However, at street level—the level about which we are most concerned—is he aware that it is possible to go into almost any car accessory shop and buy a set of number plates for any number that you care to mention? The shop will simply make it up on the spot and you will walk out with a set of number plates to your order. Surely that could be tightened up for a start. Does the noble Earl agree that there must be something wrong when that can happen so easily?
Earl Ferrers: My Lords, it is difficult to make a law which states that people are physically incapable of making up their own number plates. It is an offence when you display a wrong number plate. It would be difficult to make a law which stated that people may not make up their number plates when the components are available.
Lord Stallard: My Lords, if the noble Earl will forgive me for saying so, I am not talking about people who make up their own number plates. I am speaking of car accessory shops which make up sets of number plates. The number may be totally different from that on a car which the customer may or may not own. Any set of number plates can be supplied. I do not ask the Government to ensure that a person should be stopped from making up his own number plates. I merely say that it ought to be easy to require him to produce evidence that he needs the number plates and that the number is the one applicable to his vehicle. He should not be able to buy any set of number plates to transfer to other vehicles.
Earl Ferrers: My Lords, I am now on the same line as the noble Lord. I misunderstood. I shall certainly look into the point.
Lord Campbell of Alloway: My Lords, as has been suggested by other noble Lords, the problem of the charge of car theft is that one has to establish the
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intention permanently to deprive the owner of it. Is it not for that reason—joy riders account for a large proportion of these offenders—that we have the other offence of taking and driving away?
Earl Ferrers: My Lords, joy riding is a particularly bad name. It invites people to consider that it is fun, whereas in fact it is exceedingly dangerous. It is frequently carried out by young people and can result in injury and death. Often these cars are driven by people without licences.
I welcome the fact that the Association of British Insurers has produced a new anti-joy riding video which was launched during last week's Crime Prevention Week. It is probably not a wholly reliable figure, but in the United States a stolen car is 200 times more likely to be involved in an accident than is a car driven lawfully. Obviously it is a problem which needs to be addressed.
Lord Dean of Beswick: My Lords, the Minister must be aware of the concern expressed by police forces about the number of people killed by those who steal cars and drive them away. They are then involved in a police chase and often crash into some innocent person who is driving in the opposite direction. That is happening on an increasing scale. People are being killed and maimed. Will that be taken into consideration if the Government intend to look into the point put by the noble Lord, Lord Nugent, and consider the offence with which people who do such things ought to be charged?
Earl Ferrers: My Lords, one of the greatest problems is to ensure that people do not get into the cars in order to use them for a joy ride. That comes back to the point that people can do much more to prevent that happening by taking their own security measures with their cars.
Lord Richard: My Lords, it is obviously true that people can do more to prevent their cars being broken into. I urge yet again upon the Minister, for the fourth time now, that the only answer to this problem is that policemen should be more visible and that there should be more men on the beat. Does he agree that to spend £4.5 million on a somewhat glossy advertising campaign, the main purpose of which seems to be to persuade people that they are the victims of crimes for which they are primarily responsible, is no substitute for a uniform?
Earl Ferrers: My Lords, the noble Lord knows perfectly well that I was not suggesting that spending money in that way is a substitute for a uniform. I am quite sure that he has not forgotten—because I reminded him of the fact last Friday—that there are now 15,600 more police officers than there were 12 years ago. There will be another 700 this year. There are also another 11,300 civilian staff. That has allowed for an extra 4,700 police officers to go on the beat or elsewhere. I cannot guarantee that every single one of them has gone on the beat but corporately and collectively they aim to work against crime.

Mr. Edward Robinson: Death in Prison
2.55 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
Whether they will make a statement on the death of Mr. Edward Robinson at HM Prison, Brixton.
Earl Ferrers: My Lords, the coroner's inquest found that Mr. Robinson killed himself in circumstances brought about by lack of care. I greatly regret that in this case mistakes were made which meant that a vulnerable man did not receive the care which he needed. The recommendations which were made by the coroner are being addressed by the Prison Service and other agencies as a matter of urgency.
Lord Harris of Greenwich: My Lords, is the noble Earl aware that the Southwark coroner, Sir Montague Levine, described the circumstances of this case as involving a series of administrative blunders that at times belied credulity? Will the Minister indicate that when there is, as indeed there will be, a thorough inquiry into the circumstances, the Chief Inspector of Prisons, who has recently published a report on suicide in prisons, will be involved in it?
Can the Minister say why this man was in prison in the first place? Is he aware that he was known to be a paranoid psychotic? Is it not obvious that he should have been in a mental hospital? If he had been in a mental hospital he would probably be alive today. Can the Minister explain why he was not sent to a mental hospital?
Earl Ferrers: My Lords, I fully accept that this is a distressing case. Sir Montague Levine finished the inquest only on 5th April. We have already implemented plans for improving communication between the court and the prison and between two prisons. Even before the coroner made his report we took steps to investigate the circumstances of this case and take action upon it.
The noble Lord asked about Her Majesty's Chief Inspector of Prisons. I cannot tell him whether he will be immediately and personally involved in the inquiry but I am quite certain that he will be interested. As to why the gentleman concerned found himself in a prison and not in a mental hospital, the circumstances are these. He was arrested on 20th November for possession of an offensive weapon. He was remanded in Wormwood Scrubs and went next day to Clerkenwell magistrates. The doctor in Wormwood Scrubs did not find anything wrong with him. He was returned to court on 28th November where he was seen by the duty psychiatrist who, as the noble Lord rightly says, diagnosed paranoid psychosis. He could have been admitted to a mental institution under Section 2 of the Mental Health Act, which is a civil power. However that needs a psychiatrist and a social worker to apply to a hospital to take the mentally disordered patient for assessment. There was no social worker available. Therefore the only thing that could be done was to apply Section 37 of the Mental Health
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Act, which enables a court to send a person to a mental hospital for treatment within 28 days. That in fact was the course that was taken.
Lord Richard: My Lords, will the Minister confirm that after this man had been for the second time at court, when by then he had already been diagnosed as a paranoid psychotic and a considerable suicide risk, no notes or records about his mental state were given to prison medical officers at Brixton and his condition was not assessed by staff at the reception unit? Does he agree that that underlines the recommendation made in the Woolf report to the effect that reception procedures for prisoners who are suicide risks need looking into and indeed tightening up?
Earl Ferrers: My Lords, the noble Lord is quite right about that. The medical papers from the court did not arrive with the individual at the prison. He only had his Section 37 warrant, which itself would have alerted people to the fact that there might have been a problem, but it would not have alerted them to the fact that he had a paranoid psychosis. Medical reports are confidential. We have now taken steps to ensure that medical reports go with the police for the person when he goes to prison. The man was placed in hospital in prison. I am bound to tell the noble Lord that it is not known whether he was seen by a doctor at the prison. The instructions are that he should be seen by a doctor within 24 hours. The doctor does not recall having seen him and there are no records about it. That matter is also being addressed, as are the matters concerning reception to which the noble Lord referred.
Baroness Faithfull: My Lords, does the Minister agree that the case is representative of the amendments moved to the Criminal Justice Bill, and that those amendments are strongly shown to be necessary?
Earl Ferrers: I understand and know full well my noble friend's anxiety. However, I do not agree with her entirely. Before a person can go to a mental hospital under the present rules he has to be seen by a person in the mental hospital. If there were not a bed available, that might have been difficult to achieve even if the amendments had gone through. On the day in question, whether or not he had been seen by a doctor or a nurse, no bed was available.
The amendments in the names of the noble Lords, Lord Richard and Lord Harris, would have reduced the number of days by which a Section 37 order could have come into effect from 28 days to seven. In the case cited they would also not have had effect because by the time the seven days were up the gentleman had committed suicide.
Lord Harris of Greenwich: My Lords, I return to the point raised by the noble Earl's noble friend Lady Faithfull. This is not the first example. We have discussed at least a dozen cases in the past two years of tragic people who have either killed themselves or tried to kill themselves while in custody because they have been in prison rather than in a mental hospital. Is it not clear that it is most desirable to consider the

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matter again during the later stages of the Criminal Justice Bill to see whether we cannot improve the law and avoid such tragedies occurring?
Earl Ferrers: My Lords, I understand the concern of the noble Lord, Lord Harris. It is one which I share. My feeling is that it is probably the administrative arrangements which need to be addressed rather than the law. However, I shall certainly take that factor into account.

Municipal Airports: Future
3.1 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What are their plans for the future of municipal owned airports.
Viscount Davidson: My Lords, the Government wish to see the local authority airports grow, but the public sector cannot afford all the resources which are necessary to achieve this. The answer is for local authorities to structure their development so that the private sector will take the major share in both the opportunities and the risks of expansion.
Lord Dean of Beswick: My Lords, are not local authority airports public companies with councillors on the boards as directors? Does that not make it more difficult to privatise the airports? If privatisation is carried out, will the noble Viscount give an undertaking that the local authorities involved and therefore the ratepayers will receive full market compensation and will not have the goods stolen from them without compensation as occurred with water privatisation?
Viscount Davidson: My Lords, I am not in a position to give any guarantee. However, as my right honourable friend the Secretary of State said last week, he is looking at privatising local authority airports. No decisions have been taken. It would be foolish not to examine the options.
Baroness Hollis of Heigham: My Lords, given that some municipal airports receive local authority subsidy in order to provide an essential service for local industry and commerce, especially in regions of the country where communications are poor, what assurances will the Minister give that once privatised such airports will not be asset stripped and closed down to the detriment of the local economy?
Viscount Davidson: My Lords, as long ago as the 1985 White Paper on airports policy, the Government stated that private ownership and management would have major advantages at least for the largest local authority airports. They also said that they would encourage them to introduce private capital. There has been no secret about what the Government have been trying to achieve since then.
For the current financial year, the Government will be making £87 million available in credit approvals for investment in local authority airports. That is on top
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of profits that the airports reinvest. Over the past 10 years we have made £310 million available for investment.
Baroness Hollis of Heigham: My Lords, will the Minister be kind enough to answer the second part of my question? What assurances will he give that such airports will not be asset stripped and closed down should building land prices rise again?
Viscount Davidson: My Lords, I can give no assurance to the noble Baroness. As I said, the matter is still speculation.
Baroness Hollis of Heigham: My Lords, that is precisely what we fear.
Viscount Davidson: My Lords, I cannot speculate on speculation.
Lord Underhill: My Lords, from the noble Viscount's reply, may we assume that there will not only be encouragement for local authority airports to take up private capital on a long-term basis but also the removal of present restrictions? That seems to be an important matter. Since the Government are considering options may we assume that they will not follow any doctrinaire policy on privatisation?
Viscount Davidson: My Lords, local authorities already have the power to dispose voluntarily of all or any of their interests in public airport companies and to sell their non-company airports and airfields. Disposal does not require the Secretary of State's consent. The private sector can be involved by the sale of a controlling interest in an airport company or by a variety of joint individual projects. The new terminal which is nearing completion at Birmingham is an excellent example of constructive co-operation between the public and private sectors.
Lord Sefton of Garston: My Lords, does the noble Viscount agree that the siting and running of airports in this country are of great international significance? How does he reconcile the ownership of those airports and the Government being responsible for a strategic plan in regard to our international transportation?
Viscount Davidson: My Lords, the civil aviation authorities advise that traffic at regional airports will continue to grow strongly irrespective of whether further South-East capacity is built. We welcome that because we wish to see regional airports handling all the traffic they can.
Lord Underhill: My Lords, the latter part of the noble Viscount's reply to my previous question did not answer the point that I raised. I do not refer to disposal of assets or of the controlling interest. Local authority airports should have the freedom to go into the private capital market.
Viscount Davidson: My Lords, that is one of the options being considered.
Lord Dean of Beswick: My Lords, if local authorities wish to deal with property or land in their area, they have to go through the processes of the CPO. Such valuation is decided by the district valuer.

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Will the district valuer value those airports or will it be the duty of the Secretary of State, who will give them a knock-down price as has occurred with other public assets that have been sold off?
Viscount Davidson: My Lords, I shall pass on the noble Lord's comment to my right honourable friend.

Business
3.7 p.m.
Viscount Long: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Reay will, with the leave of the House, repeat a Statement that is to be made in another place on Iraqi refugees.
It may be for the convenience of the House to know that subject to the progress of business, the Committee stage of the Criminal Justice Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment the Second Reading of the Foreign Corporations Bill, the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991, the Advice and Assistance (Scotland) (Prospective Cost) Regulations 1991 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991 will be taken.

Representation of the People Bill
Read a third time, and passed.
Tay Road Bridge Order Confirmation Bill
Considered on Report.

Criminal Justice Bill
3.10 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 28 [Power to release long-term and life prisoners]:
Lord Richard Lord Richard moved Amendment No. 77:
Page 21, line 18, leave out ("may") and insert ("shall").
The noble Lord said: The amendment would abolish the Home Secretary's current power to veto the release of prisoners on parole. The proposal was made by the committee chaired by the noble Lord, Lord Carlisle, which examined the parole system and published its report in 1988. The argument is best set out in the report. It recommended:
"The Home Secretary's responsibility for releasing determinate sentence prisoners on licence should cease. The decision to release people on parole should be taken by the Parole Board alone".
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The committee's report explained the reason for that recommendation as follows:
"The present arrangements are cumbersome and conduce to delay. They work in a way which ensures that the inmate is kept in the dark for the longest possible period. They also tend in practice to blur the responsibility for decisions: although the Home Secretary is, in theory, answerable for anything that goes wrong, the substantive consideration and risk assessment will in fact have been undertaken either by the LRC or by the Parole Board and the LRC. It seems to us much more satisfactory for responsibility to lie clearly and unambiguously with a single body".
The committee concluded that the only answer to the problem was for the Home Secretary to cease to be responsible for individual parole decisions.
The Government accepted most of the recommendations of the Carlisle Committee and have incorporated them into Part II of the Bill. However, in respect of this issue the White Paper, Crime, Justice and Protecting the Public, stated that the Government could not wholly accept this recommendation. It further stated:
"The Government believes that some offenders have been convicted of crimes which are so serious that the Home Secretary should keep the final responsibility for the decision whether or not to accept the recommendation from the Parole Board to release them on parole, as part of his wider responsibilities for maintaining the Queen's Peace … The Home Secretary's present intention is that he should continue to consider the release of those serving very long determinate sentences of 7 years or more. They will have committed very serious crimes and may be a serious risk to public safety".
Since then the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell has made it clear that the Home Secretary's involvement in decisions on the release of offenders serving discretionary life sentences contravenes the European Convention on Human Rights. The Government are still considering what to do about that decision but must take action. In order to comply with the decision they must establish a judicial tribunal of some kind to make decisions on the release of such prisoners. That will eliminate the Home Secretary's involvement in release decisions for prisoners serving discretionary life sentences.
Prisoners serving discretionary life sentences have usually committed more serious offences and are potentially a greater risk to the public than those given determinate sentences. In my view it would be illogical to eliminate the Home Secretary's veto in respect of release decisions for discretionary life prisoners yet retain it for prisoners given fixed sentences of seven years or more. We on these Benches submit that the Government should accept the recommendations of the Carlisle Committee and end the Home Secretary's veto in respect of recommendations of parole for all prisoners serving determinate sentences.
If the Government are unwilling to consider ending the Home Secretary's veto in respect of parole decisions, we hope that they will explain to the Committee the logic of choosing a cut-off point of seven-year sentences as opposed to 10-year sentences. It is unlikely that when reviewing cases put forward the Home Secretary, with all his other responsibilities, can give deep personal consideration to all those concerning prisoners serving seven years or more. Can the Government tell the Committee, if not now before the next stage of the Bill, how many prisoners serving

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seven years or more and 10 years or more are reviewed for pa role each year by the Home Secretary? I beg to move.
Lord Boyd-Carpenter: I hope that the Committee will not accept the amendment. It would undermine to a considerable extent the responsibility of the Home Secretary for the maintenance of law and order. If when the Parole Board has made a recommendation he is to be deprived of his veto, he will be unable to discharge that responsibility.
Moreover the provision would eliminate the authority of Parliament in such issues. While the Home Secretary has a responsibility he is answerable to both Houses of Parliament. There may well be cases in which a released prisoner with a bad record has subsequently committed serious offences injuring innocent people. Either House of Parliament may wish to investigate such cases. If the amendment is carried the Home Secretary will have no option but to stand at the Dispatch Box and say, "I am afraid that it is nothing to do with me. I have no power in the matter". That would be a most unsatisfactory outcome and I hope that the Committee will not accept the amendment.
Lord Hunt: I have some reservations about the amendment moved by the noble Lord, Lord Richard. In response to a question that I asked the noble Earl on Second Reading, I was delighted to hear him say in winding up that the Government propose to give effective powers to the Parole Board in regard to prisoners serving between four and seven years. However, I have reservations about the power to do so in respect of those serving longer sentences for more serious offences.
Several thousand prisoners are serving up to seven years, and that accords with the reality that the Parole Board's decisions are accepted by Ministers. They cannot see all the cases due to the large number of prisoners. However, the number of prisoners serving seven years or more is less. Therefore it is acceptable and possible for an appointed Minister to see those cases and to make the decisions. I believe that Parliament will expect the Home Secretary personally to scrutinise and give authority for the early release on parole of those serving the longer sentences of seven years or more.
Earl Ferrers: I am grateful to the noble Lord, Lord Richard, for explaining his amendment. Its effect would be to give the Parole Board the final say in the decision to release on parole any prisoner serving a determinate sentence of four years or more. The amendment reflects the view of the Carlisle Committee, which we have carefully considered. There are arguments in favour of that view. It is right that in general Ministers should concentrate on policy rather than on individual casework. It is desirable to have a system which is simple and straightforward and avoids any unnecessarily complex decision-making process. In practice it is unusual for the Home Secretary to reject a recommendation for release by the Parole Board.
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The noble Lord asked me to give the rejection figures relating to those serving seven years and those serving 10 years. I cannot give those figures but I shall inquire whether they are available. However, in 1989, 30 recommendations for parole were rejected by my right honourable friend and more than 13,000 prisoners received parole. The number not given parole against the advice of the Parole Board is therefore small.
The Home Secretary has a particular and important responsibility for public safety. It was referred to by my noble friend Lord Boyd-Carpenter and is extremely important. The responsibility that is most evident in relation to those convicted of the most serious offences cannot be taken lightly. Those who have committed the worst offences must be taken seriously. It is right that the public should understand that the Home Secretary has a say in whether a person who has committed a very serious offence should be allowed back into the community.
That must be balanced against any arguments in favour of an administratively simpler system. I hope that the privileges in the Bill achieve that. For short-term prisoners—those who serve sentences of up to four years—release will be automatic at the half-way point. For long-term prisoners—those serving sentences of four years or more—as the noble Lord, Lord Hunt, mentioned, where the sentence is between four and seven years, it is our intention under Clause 41 that the Home Secretary should delegate to the Parole Board the power to make the decision about release. For those serving sentences of seven years or longer, we believe it is right for the Secretary of State to make the final decision and for the Parole Board to retain its advisory role and to continue to advise my right honourable friend.
The provisions in the Bill already move a good way towards a delegated system which should minimise the involvement of the Secretary of State so far as it is acceptable to do so. Some may argue that we have not moved far enough and that we have been too cautious, but I do not believe that. When the new system is tried and has been tested, Parliament may consider it right for a greater degree of delegation to the Parole Board. In that case another order could be made under Clause 41 to extend the categories of case in which the decision was delegated.
I realise that some Members of the Committee think that we should go further. For the reasons I have given, I believe it is right for the Secretary of State to have the final power. If it transpires that that power could be given eventually to the Parole Board, then the mechanism exists in the Bill to allow that to be done.
Lord Richard: Before the noble Earl sits down, perhaps he can explain why seven years is chosen as the cut-off point. What is the magic about a seven-year sentence as opposed to a nine or 10-year sentence? I do not know why that cut-off point was chosen nor, indeed, whether that is suitable. Perhaps the noble Earl can help the Committee.
Earl Ferrers: One must choose a cut-off point and that was the point considered to be reasonable. Those

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serving sentences of four to seven years have committed fairly serious offences but are not in the same category as those serving sentences of over seven years.
Lord Henderson of Brompton: On a point of information, if an amendment such as that moved by the noble Lord, Lord Richard, is not agreed to, will the Government not be in breach of the European Court of Human Rights in the face of the recent judgment in the case of Thynne, Wilson and Gunnell in 1990?
Earl Ferrers: The short answer is that the Government will not be in contravention. As we have explained, we are considering that judgment to see how best it can fit into our existing system.
The Earl of Longford: Does the noble Earl believe, in the situation which he envisages, that the Home Secretary will have more information before him which is not available to the Parole Board? On the face of it, he will not.
Earl Ferrers: It may be that he will not have more information, but the Home Secretary has responsibility for public safety. He is advised by the Parole Board but there are occasions—and, as I explained, very few occasions—when the Home Secretary's judgment may require that the decision to release should not be taken.
Lord Richard: I thank the noble Earl for his response. It was not very informative as to my question about why seven years was chosen as a cut-off point. I shall not test the opinion of the Committee on this matter, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 77A not moved.]
Clause 28 agreed to.
Clause 29 agreed to.
Clause 30 [Duration and conditions of licences]:
[Amendment No. 77B not moved.]
Clause 30 agreed to.
Clause 31 agreed to.
Clause 32 [Recall of long-term and life prisoners while on licence]:
[Amendment No. 77C not moved.]
Clause 32 agreed to.
Clauses 33 and 34 agreed to.
Lord Thomas of Gwydir Lord Thomas of Gwydir moved Amendment No. 78:
After Clause 34, insert the following new clause:
("Custody abroad
. After subsection (1A) of section 67 of the Criminal Justice Act 1967 there shall be inserted the following subsection—
"(1B) In subsection (1) above "relevant period" includes any period served in custody in connection solely with charges relating to the offence in any foreign jurisdiction awaiting extradition to this country where there is in existence at that time a treaty obligation for extradition between that country and the United Kingdom; and for the purpose of this subsection
16
"custody" means continuous detention by order of a court in an establishment provided for the purpose of restricting liberty."").
The noble Lord said: The purpose of this amendment is to remove an anomaly in one of our sentencing procedures. The anomaly is between the sentencing of prisoners detained on remand in this country and the sentencing here of prisoners detained abroad while awaiting extradition.
The case for the change proposed by this new clause can be put quite briefly. Before the Criminal Justice Act 1967 a judge imposing a custodial sentence on a prisoner who, prior to sentence, had been remanded in custody for the offence charged could take the period of custody into account and, usually with explanation, would reduce the appropriate sentence accordingly.
Section 67 of the 1967 Act made a change. Thereafter, the judge was not concerned with the computation of the remand time spent in custody or on bail and passed in full the appropriate sentence for the offence charged. Section 67 transferred the computation to the Home Office administration with the statutory duty to reduce the period of imprisonment following the court's sentence by the relevant time spent in custody on remand.
Therefore, the position was that the length of imprisonment but not the sentence was reduced. However, no similar provision was made for a prisoner who had been arrested abroad and who had spent time in custody awaiting extradition. That time in custody abroad could not be counted towards a sentence subsequently imposed by a court here. The Committee may think that in many cases that would be manifestly unfair and, indeed, some years later the Court of Appeal held that justice required that custody abroad in those circumstances should be reflected in the sentence imposed here.
Following that and other judicial precedents, judges today consider reducing a sentence in order to give credit for time spent in foreign custody. Of course, there is no statutory obligation for that credit to be given. Therefore, we now have two sentencing procedures which the Committee may think are quite anomalous and indeed undesirable.
Perhaps I may give a hypothetical example. Two men jointly commit a crime and both are arrested roughly at the same time. One is arrested in this country and the other is arrested abroad, in perhaps Canada or the United States, and is subject to an extradition order. Both are remanded in custody: one in England for a year; the one abroad also in custody for a year. When they come up to be sentenced, by precedent the judge is required to take into account the time spent in custody abroad; that is, one year. Therefore, he reduces the appropriate sentence by one year. However, with regard to the prisoner who was arrested and remanded in custody in Britain, he passes the appropriate sentence.
One therefore has the ridiculous situation where, for the same offence, with each man equally culpable, one man receives five years and the other four years. The public may find that difficult to understand. It is manifestly wrong that one man should have on his criminal record a sentence of five years and the other a sentence of four years.
I mention that example to indicate what the anomaly means. Amendment No. 78 was tabled on the initiative of that splendid organisation, Prisoners Abroad. An amendment was moved in the other place. It was not in precisely the same terms as this one. The Minister in the other place found certain objections. One was with regard to the difficulty of defining "custody abroad". A person could be in a prison cell or a house with restricted movement. For that reason the new clause contains the definition that custody means,
"continuous detention by order of a court in an establishment provided for the purpose of restricting liberty".
Another objection raised by the government spokes man in the other place was that custody abroad must be directly connected with the proceedings relating to the sentence. He said that it may be difficult to be certain about that. For that reason the new clause includes the words,
"any period served in custody in connection solely with charges relating to the offence"
Those two objections therefore have been met by Amendment No. 78. In the circumstances it is quite wrong that there should be two systems of sentence. It was regarded as being right in relation to a person on remand in this country that the Home Office administration should do the arithmetic and say by what amount the period of imprisonment should be reduced. In my submission the case for this matter to be determined administratively by the Home Office rather than by the trial judge is overwhelming. I beg to move.
3.30 p.m.
Lord Richard: On behalf of these Benches I am happy to support Amendment No. 78. The position at the moment is bizarre. One has the anomaly pointed out by the noble Lord, Lord Thomas—a situation that can clearly arise in practice.
As I understand it the Court of Appeal said that justice requires that the amount of time spent in custody abroad should be reflected in the sentence imposed in this country. If it is not reflected in the sentence imposed in this country, then the royal prerogative is wheeled out—if that is not too inappropriate a phrase—and it is the royal prerogative that is used to remedy what prima facie is an injustice. If it were not an injustice then presumably the royal prerogative would not be thought applicable.
I believe that the then Home Secretary, now Leader of this House, wrote to Mr. Keith Best, the director of that excellent organisation, Prisoners Abroad, in March last year. He said,
"You are right about the position of the offender who has spent time in custody abroad awaiting extradition. Where it appears that time spent in custody abroad relating to the charge on which the prisoner was convicted has not been taken into account by the court in fixing the terms of the sentence, it is thought right to consider giving credit for that time. When justified, this is done by recommending the exercise of the Royal Prerogative to grant an appropriate period of special remission of the prisoner's sentence".
It is absurd that in a situation where the courts and the Government are saying that the time spent abroad should be reflected in the sentence, the only way of remedying the injustice is to use the royal prerogative. Further inquiries to the Home Office regarding how
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many times the royal prerogative has been exercised to grant special remission in those circumstances revealed that over the past five years 12 applications had been granted and no more.
When the matter was raised in the other place two points were taken by the Government. One was that custody could not be sufficiently defined so as to make it capable of administrative decision in this country. Secondly, the definition of the offence had to be related to the time spent in custody abroad. Both those points have now been taken care of in the clause before the Committee. The clause says,
"for the purpose of this subsection 'custody' means continuous detention by order of a court in an establishment provided for the purpose of restricting liberty".
In our submission it is wrong that somebody who has spent time in custody abroad within the meaning of the definition of that subsection should find himself in front of the courts in this country deprived of credit—if one may use that phrase—for the time he spent in custody abroad and thus relying upon the exercise of the royal prerogative. As we all know, that is uncertain, at least in its inception. It is an injustice which may be remedied by the Government accepting the clause.
Baroness Faithfull: I rise briefly to support my noble friend Lord Thomas from a different point of view; that is, the welfare of the families involved. When one man is in custody abroad for a time, his family and children do not see him during that period. If he then returns to this country and must serve a sentence—perhaps longer than his co-defendant's—further difficulties arise. Therefore, while I agree with the noble Lord, Lord Richard, and my noble friend Lord Thomas, I support the amendment from a welfare point of view.
Lord Hutchinson of Lullington: I too support the amendment. One further objection was taken by the Government in the other place regarding the difficulty of discovering what was the exact length of custody abroad. In all extradition cases there is a great deal of diplomatic communication between governments under the extradition Acts and treaties. I should not have thought it would be in any way difficult to have reciprocal arrangements whereby each government, where the extradition of one of their nationals is involved, always indicate the length of custody in which that person had been held.
Baroness Phillips: Before we go any further perhaps I can ask whether I am the only person in the Chamber who does not understand what we are discussing. It is not infrequently that I have to listen to legal people explaining things. However, I am attempting to envisage the situation given, and I invite Members of the Committee to interrupt if I have not understood correctly. Two men have committed the same crime. One man is arrested in this country and the other abroad. I am not clear how that could be if both committed the crime in this country. Has one perhaps been clever enough to skip off to another country and been caught there? If so, it seems to me that he deserves to receive the extra sentence. Perhaps

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somebody could explain precisely what we are talking about. Why is one person awaiting extradition if both people committed the crime in this country?
Lord Harmar-Nicholls: In the interests of coherent parliamentary government I hope that the Minister will look at the amendment with sympathy. By "coherent" I mean that the facts as explained by my noble friend Lord Thomas indicate that when a similar amendment was presented in another place two clear reasons—which he accepted as having a base—were given for not accepting it. It may be that those two objections have now been answered. Unless my noble friend on the Front Bench can say that an answer has not been provided to the two reasons given in another place, I do not feel that we should play cat-and-mouse. As I see it, the strength of Parliament lies in having two Houses. That gives one time, during the various proceedings on a Bill, to arrive at as near a correct conclusion as possible by listening and meeting each other along lines which have been clearly established. Having listened to my noble friend Lord Thomas, it appears that the reasons for not accepting the amendment in another place have been answered. It would be sad if the coherence of that procedure had been properly followed but not accepted through approval of the amendment itself.
Earl Ferrers: We all have sympathy with the point of view which my noble friend has put forward in his amendment. Its purpose is perfectly clear. It is to put the prisoner who has spent time in custody abroad awaiting extradition in the same position as a prisoner who has spent time in custody on remand in this country. Therefore, from that point of view, it is eminently fair. Like the offender who has spent time on remand, the period which the offender is to spend in custody under sentence would be reduced automatically and administratively by a period equal to the time that has been spent in custody abroad during extradition proceedings, if my noble friend's amendment were accepted.
The noble Baroness, Lady Phillips, was worried about the kind of cases where this situation can come about. I shall give one example concerning fraud where a number of different countries are concerned with the same case. It may be that people are taken into custody in one country and then extradited to another for sentencing. The positions of the respective offenders are not always comparable. Different arrangements are needed to take account of the different circumstances. Section 67 of the Criminal Justice Act 1967, to which my noble friend Lord Thomas referred, makes it clear that remand time is relevant only when it is directly connected with any proceedings relating to the sentence which it affects.
That is an important principle and one that should also be reflected in the way in which foreign custody is treated. It is much more difficult to determine whether foreign custody is relevant in this way. It may, for example, have been intermittent or custody may have taken place in more than one jurisdiction. Some of it may have been in connection with charges faced by the offender in, or a sentence imposed by, the host
20
country. Therefore, it may be difficult to determine exactly how much of that custody related to the offence with which he was charged in this country.
This new clause attempts to overcome these objections, but it would be limited to cases where detention was continuous and not intermittent, and where remand time was related to the proceedings for this particular offence. It is also limited in that it extends only to those countries with which extradition is conducted on the basis of an extradition treaty. There are many offenders who would not benefit from it. Indeed, no prisoner who is extradited from a Commonwealth country would benefit because extradition arrangements with those countries are not based on treaties.
There is a great variety of factors which may need to be considered before a decision could properly be made to reduce the sentence which is to be served in this country. It requires an exercise of sentencing discretion which I suggest to the Committee is more appropriately exercised by a judge than by a civil servant in a prison or in the Home Office. The Court of Appeal has made it clear that judges should consider reducing the sentence in order to give credit for time which has been spent in foreign custody. That seems to be the most sensible and practical arrangement. The sentencing judge has all the facts of the case before him at the time of sentence and he can make the appropriate allowance for time which has been spent in custody abroad. As the noble Lord, Lord Richard, said, there is the safety net of the royal prerogative of mercy being, as he graphically put it, "wheeled out" on these occasions in the odd case where proper allowance has not been made. We are not saying that that will be the usual way of dealing with the matter because usually the judge will reduce the sentence. If that does not happen, only then will the royal prerogative be used. That is why the numbers are small.
We have taken steps in the Bill to ensure that sentencers can continue to reduce a sentence to take account of time which has been spent in custody. The Committee may recall that a new government clause was inserted after Clause 23 which makes general provision for the mitigation of sentence. That includes a reduction in the sentence to take account of time served abroad awaiting extradition. That may go some way towards meeting my noble friend's concerns. I understand his concerns. I hope he will agree that the way in which it is proposed to deal with the matter is better than that proposed in the amendment.
3.45 p.m.
Lord Hutchinson of Lullington: Can the noble Earl say what the objection is to asking the foreign government to certify the time spent in custody? If that were done, all the problems raised by the noble Earl would be resolved. What is the objection to taking that course?
Earl Ferrers: I am not sure whether that would be the right thing for a foreign government to do. It is a matter which should be dealt with through the legal

21
processes. The principal objection would be that it is very difficult to fuse one form of jurisdiction with another on a legal basis as proposed by this amendment. We propose to deal with the matter by the judge understanding the circumstances of the case and making due allowance.
Lord Donaldson of Kingsbridge: I do not understand why the absence of an extradition treaty with Commonwealth countries makes it impossible to behave as though there were one.
Earl Ferrers: My noble friend's amendment refers to "awaiting extradition to this country" where there is a treaty obligation. With Commonwealth countries there ire no extradition treaties and therefore they would not he affected by this amendment.
Lord Donaldson of Kingsbridge: Prisoners are sent here from the Commonwealth to be tried in cases of this kind, are they not?
Earl Ferrers: That may be so. I was trying to point out that my noble friend's amendment refers to extradition treaties and the obligations which this country has. Therefore, from the point of view of my noble friend's amendment, that would exclude people from Commonwealth countries. I shall certainly take my noble friend's concern on board.
Lord Harris of Greenwich: My noble friend Lord Hutchinson of Lullington made a very sensible suggestion. He said that a foreign government should certify the number of days in which an alleged offender has been held in custody. The noble Earl explained the problems associated with that. Unless the foreign government does so certify, how can anyone in this county know the truth of the matter? The noble Earl said that the matter should be left to the judge, but how will he know how many days the offender spent in custody unless there is some certification process? I should be very grateful if the noble Earl can help me.
Earl Ferrers: The best thing I can do is to find out exactly what the process is by which one country informs another of the number of days an offender spends in custody. I see that there is a real problem. Judges have to know the amount of time that a person has spent in custody as opposed simply to having the prisoner say how long he has spent in custody in another country. We do not sentence on the basis of certificates from a foreign government. I shall look into the point made by noble Lords.
Lord Renton: Is it not the invariable practice for the police, before sentence is passed by the judge, to be called to give the facts known to them about the antecedents of the accused? That would invariably contain information about the time spent in custody, whether in this country or abroad. The defence have the right to cross-examine the officer if he has not given such evidence in examination-in-chief.
Earl Ferrers: My noble friend, with his considerable experience of the law, is probably quite correct over that. It is important though that whoever determines how many days a person has spent in prison should do
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so on the basis of the facts; and the courts should be aware that those facts are correct. I shall certainly look into the matter.
Baroness Phillips: I am still not clear about this. Are we talking about someone who has committed an offence in another country or about someone who has committed an offence in this country and then skipped over to Nice to have a holiday? I really do not quite understand what we are talking about.
Earl Ferrers: I do not blame the noble Baroness. I often find difficulties in that direction as well. She has a fairly vivid imagination and I think that both the examples which she gave would obtain. If a person has committed an offence in this country and then escapes, say, to France, one might get hold of the French police and say, "Look, here is this person who has done something terrible. We want him". The police then go and arrest that person and put him into custody. Then of course this particular aspect of the amendment would bite. Equally, a person may have committed an offence, such as a drug offence, in England. In the course of inquiries it may be found that one of those people involved in this drug offence, be he an Englishman or Frenchman, is sitting in Nice. Therefore, this person who has also been part of the crime for which the person in England is responsible may also require to be put into custody, and that is why again the person may be put into custody, in, say, France and be required to be extradited to this country.
Lord Thomas of Gwydir: I thank my noble friend the Minister for the answers that he gave to this amendment. However, I must confess—and I do so with all humility—that I am very disappointed indeed. I do not think that his answer was in any way relevant to the points which were made in support of this amendment. My noble friend referred to the question of custody, to the relevance of custody abroad and to the sentence passed. All that is covered in the amendment. What my noble friend has said is that he thinks the status quo should be maintained and that a judge should be the one obliged by precedents to reduce an appropriate sentence by the amount that he assesses to be the amount spent in custody abroad prior to extradition. That is the whole point which those who have spoken in favour of the amendment think is the anomaly.
Do my noble friend and his advisers think that a judge who is in the process of sentencing and is told that a defendant has been in custody abroad should take an immediate decision as to the length of that custody? Does my noble friend not think that the administrative side of the Home Office is better equipped to look into the matter to see exactly what the length of the custodial sentence abroad had been and to reach a decision? The judge can then give the appropriate sentence for the offence, and the amount spent in prison as a result of that sentence would be reduced, as it is reduced in a normal case by Home Office administration. That is all that this amendment means.

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I am bitterly disappointed that my noble friend and those who advise him have not seen that there is a very strong case for this amendment. I do not intend to press it to a Division. However, I ask my noble friend and his advisers to look into this matter because there is clearly a case for a change. If he wishes the anomaly to remain it is going to bring into disrespect the procedure of sentencing.
Earl Ferrers: Before my noble friend decides whether to withdraw his amendment, I am of course distressed that he should feel bitterly disappointed by anything that I have said. I realise that he feels very strongly about this. Indeed a number of noble Lords have spoken in favour of the amendment. I should certainly like to consider what my noble friend and other Members of the Committee have said. Obviously, we are all trying to get the right answer. Just because I happen to have taken a view slightly contrary to that of my noble friend, I would not wish him to think that we were not, as it were, running down the same lines. I shall certainly take into account all that he and the Committee have said.
Lord Thomas of Gwydir: I am very much obliged to my noble friend. If he had said that in the course of his address to the Committee I should not have demonstrated such disappointment. I am most grateful to him for his undertaking and I hope that he and his advisers can look into the matter and consider what has been said in this debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Iraqi Refugees
3.55 p.m.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Minister for Overseas Development, Mrs. Chalker, on her recent visit to Turkey and Iran to assess the needs of Iraqi refugees. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement following my visit to Turkey and Iran to assess the needs of Iraqi refugees and what more Britain intends to do further to relieve their tragic suffering.
"Last Wednesday I reported to the Foreign Affairs Committee on the first days of immediate help we have provided to Iraqi refugees in both countries. On Thursday I left for Turkey and Iran with ODA and Diplomatic Wing officials and representatives of the British Red Cross, Save the Children Fund and Oxfam, all experts in the provision of humanitarian relief. Our objective was
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to assess the current situation of refugees in the Turkey-Iraq and Iran-Iraq border areas, to stimulate improved communication and coordination of all aid donors on the ground and to plan our further relief to the refugees with the governments and aid agencies of all involved.
"The generosity of Her Majesty in allowing us to use an aircraft and crew of the Queen's Flight and the helpful attitude of both the Turkish and Iranian Governments and the Iranian Air Force enabled my team and me to see a number of camps and have detailed discussions with Ministers, officials and aid personnel in both countries. I was also able to meet senior American and German military personnel to gain a clearer picture of both their immediate and future aid plans.
"The plight of the Iraqi refugees is truly harrowing. Assistance is further advanced for those on the Turkish border than for those in Iran. The Turkish system has developed considerably over the past week but needs continuing supplies. I shall return to Turkey's work for the refugees in a moment; but first Iran, where the situation is changing hour by hour.
"For those in Iran, the rate of delivery of supplies from all sources must be at least doubled and donors must co-ordinate through the Iranian Red Crescent and with the Government of Iran, as well as with the UN and international aid agencies. There are now more than 1.2 million Iraqi refugees in Iran, with many thousands more over the border seeking entry through the three crossing points.
"The Iranian authorities told me that they are allowing several thousand in a day as they establish more camps and places in them and provided the refugees will give up their arms at the border. Around a million people, mainly Kurds but also Turkomans, Assyrians and Arabs, have come to the northern border provinces of West Azerbaijan and Bakhtaran, another 200,000 plus have moved on to East Azerbaijan and there are more than 50,000 Shi'ites in Khuzestan in southern Iran across the border from Basra.
"Within the northern provinces, the response of the Iranian Red Crescent organisation and its provincial governors is growing daily with help from donors through the Ministry of Foreign Affairs and the Iranian military. Britain was one of the first to supply directly to Orumieh in West Azerbaijan, 160 tonnes so far having been delivered plus 3 million water purifying tablets. The Iranian Red Crescent works through the provincial governors to secure supplies, distribute them and maintain order in the camps. Fifty-five camps have been established in Azerbaijan and Bakhtaran. The Iranian Red Crescent and local officials discussed their difficulties openly and welcomed our suggestions to help improve the organisation of supplies and health care.
"Our visit to two of the 22 camps near Orumieh, in the foothills of the mountains north of Piranshahr, confirmed that existing facilities are overwhelmed by numbers entering. The queues to cross the border at Tamarcheen are still three to

25
four kilometres long and there are little or no facilities along the road at all. On the road and in many camps conditions of shelter, health, food and water are horrendous and urgently need improve-me at. The health of women and children is particularly at risk because of unclean water, no sanitation, limited health care and irregular food distribution. In the mosque at one camp, the first point of arrival, whole families lie huddled together in row upon row with no facilities at all. They move on into tents, where they have little more space but where ground dampness makes the problem of extreme cold at night much worse. The Iranian authorities are setting up new camps continuously, but need more assistance to do so. The ICRC is helping, but the Iranian Red Crescent needs our help in West Azerbaijan.
"After discussion with Iranian Government officials, the Iranian Red Crescent, our own British Red Cross, the Tehran representative of the Save the Children Fund and local officials in Orumieh, I have set up under British Red Cross supervision the supply of tents, blankets and ground sheets through Orumieh to the West Azerbaijan camps. This supply operation starts tomorrow morning and will access the area by air either to Yusekova in Turkey or to Orumieh, with onward ground transport to the Iranian camps. To achieve this, we shall double the number of relief flights to Iran to four flights a week. The ground transport will be organised by the Red Cross and the Iranian Red Crescent with a resident British Red Cross official working with the British Embassy in Tehran to ensure co-ordination of supplies and personnel in this massive effort. We were advised by the Iranian Red Crescent that it needs many more trucks, and this is being examined urgently. We shall purchase food locally wherever possible, as we are already doing in Turkey through the local Red Crescent.
"To meet the health needs, I have agreed with the British Red Cross to co-ordinate with the Save the Children Fund to set up camp health centres in West Azerbaijan, where we know there is a very great need. We will start immediately with one centre for up to 150,000 refugees with satellite unit. This will be managed by the SCF and will run initially for a period of three months. I expect to extend this and to establish further centres through the British Red Cross.
"As a result of our visit I can also announce today an initial contribution of £2 million from the £20 million pledged by my right honourable friend the Prime Minister for the ICRC's excellent programme to help refugees in Iran. In addition to the £12 million we have already committed to the European Community for its assistance to NGOs, and the European Community's contributions to the ICRC and UN appeals, I will be considering further contributions to the UN appeals. We need to know the UN agencies' plans in order to judge how best we can help. I hope this will be soon. There will be further help to British NGOs as plans firm up and are agreed. I shall be seeing the UN
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Secretary General tomorrow and my right honourable friend the Member for Grantham will be meeting Prince Sadruddin Khan in Geneva.
"In Turkey we are continuing the airlift of relief supplies from this country and the airdrops to the refugees by RAF Hercules aircraft and Chinook helicopters. Meanwhile, urgent action is being taken to establish protected refugee camps in northern Iraq near Zakhu and to persuade the refugees to come down from the mountains as quickly as possible. The United Nations involvement in taking over responsibility for these camps is crucial, as is our overall objective of getting the refugees to return to their homes in peace and security.
"As I said earlier, the plan is unfolding hour by hour. There are regular meetings with the British Red Cross and other agencies, with colleagues in government and links with our European partners, the US military and the international agencies. I am most grateful to Michael Whitlam of the British Red Cross and all the agencies and to our troops working in Turkey for the excellent work they are doing.
"The message I want to leave with the House this afternoon is that, following our visit, we are stepping up our relief operations to respond to the urgent needs in Iran through our own NGOs and the international agencies. We shall continue our operations on the Turkish border as we establish the protected refugee centres under Operation Haven inside Iraq."
My Lords, that concludes the Statement.
4.5 p.m.
Baroness Ewart-Biggs: My Lords, we are grateful to the Minister for repeating the Statement which was made in another place. We on these Benches, as indeed must many people in this country, very much welcome news about what is going on in that tragic part of the world. The Statement was a lengthy one and we only had the opportunity to look at it for a few moments beforehand. Therefore, perhaps I may ask the Minister a few questions.
I should say first that we are heartened by the fact that further information has been given about what is occurring on the Iraq-Iran border. I say that because, until the visit of the Minister for Overseas Development to the area, very little was known about what was happening to the large number of refugees arriving at the border. Although we were congratulating the Iranians upon their efforts in trying to deal with those refugees, the support coming from the international community seemed to be insufficient.
I note that the Minister said that the assistance to Iran must be doubled. However, perhaps he can give us some idea about the source of this extra assistance. The noble Earl gave many statistics as regards the number of refugees. But, as we all know, once people leave their homes and villages it is very difficult to monitor their movements and their numbers. Therefore, perhaps he can tell us what international agency is responsible for monitoring the actual

27
numbers involved and for locating these refugees. If such information is not known, it will be most difficult to help them.
We welcome the fact that Her Majesty's Government are making an initial contribution of £2 million and they are considering making further contributions to the UN appeals. I hope that the Minister will be able to tell us as soon as possible when those further contributions will be made to the United Nations to assist in the efforts which it is making.
As regards the refugee camps which are being set up on the Iran-Iraq border, does the Minister know—although I suppose it may be impossible to tell—what is their total capacity? According to his description, it would seem that there are still a huge number of refugees moving down from the mountains towards the camps. Can he say how many people those camps will be able to accommodate?
From the point of view of the safe havens on the Turkish-Iraqi border, clearly there must be a very great health risk from unclean water. If there is unclean water, food provision and so on is of little use. Can the Minister tell us who is in charge of providing clean water? I know that water purifying tablets have been sent to the area, but I understand that there is no way of setting up a supply of clean water. Can the noble Earl tell us what organisation is responsible for the provision of clean water to the camps? Further, can he tell us what is the total capacity of those camps and how many refugees are in them at present?
I am aware of the aid which has been pledged by Her Majesty's Government, but can the noble Earl tell us what quantity of aid has been pledged by the EC? That figure was not mentioned in the Statement. Further, from the point of view of supplies such as blankets, food and medical supplies which have been sent to the refugees in the camps, is there any way of knowing how much of this material has actually been received? We know how much is being sent, but the amount which is actually getting through to the refugees is another matter.
In conclusion, can the noble Earl tell us whether allied representatives have had the opportunity to discuss with their Iraqi counterparts the movement of Iraqi security police into the haven town of Zakhu? That is something about which we have read in our newspapers. Also, if he can, will the Minister say something about the long-term safety and security of the Iraqi refugees in southern Iraq on the Kuwaiti border?
We are grateful for the information that the Minister has given. The heartrending situation occurring in that part of the world has touched the hearts of everyone in this country, and so the greater the effort and contribution that Her Majesty's Government can make towards alleviating the plight of those refugees the more welcome that will be to the people of this country.
Lord Bonham-Carter: My Lords, I too thank the Minister for repeating the Statement made in another place by his right honourable friend the Minister for Overseas Development. We express our thanks to the Red Crescent, the Red Cross and the other voluntary
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agencies whose work in delivering the supplies to the refugees is crucial. They deserve our support as well as our thanks. Like the noble Baroness, I note that the supplies required are double those already being delivered. That gives us some indication of the enormous problem facing all those trying to relieve the situation of the refugees in Iran, Iraq and elsewhere.
There are three short-term issues about which I should like further information from the Minister. First, one of the most worrying aspects of his right honourable friend's report was the description of the queues at the border three to four miles long, where no supplies, facilities or help are available. I should like to know what steps are being taken, first, to reduce the length of those queues, and, secondly, to ameliorate the conditions of those queueing. We had no hesitation in entering Iraqi territory on the Turkish border, and I should have thought that we should consider entering Iraqi territory on the Iranian border to relieve the situation of those people queueing in harsh conditions. I should also like to know what success we are having in getting people on the Turkish border down from the mountains, which is the whole purpose of the operation. We continue to say that that is what we are trying to do, and I am interested to know whether we are having any success.
Thirdly, I should like to know what steps are being taken to help the Shi'ites in the south, whose situation seems in some ways to be the most tragic of all. We have an obligation towards them. I have been shocked by the reports that the Kuwaitis and the Saudis are not participating in helping those people. Are those reports true? If so, what steps are Her Majesty's Government and the other members of the coalition taking to bring pressure to bear on those two countries for whom the whole operation was initiated in the first instance?
There are three longer-term matters upon which we should like some information. When will the United Nations take responsibility for the operation? The sooner responsibility for organising the whole operation is undertaken by the United Nations the better. Secondly, I hope that we have taken account of the fact that it is essential that in any peace treaty with Iraq and in any settlement of the Middle East problems, the rights of minorities in all countries are safeguarded. Unless that is done, the war that we have fought will be a war only half won.
Finally, what steps have Her Majesty's Government in mind for the longer-term future? To have more than 1 million refugees from Iraq settle in Iran without any idea of what will happen to them is to reproduce once more the tragedy of the Palestinians. We know that that is a precedent we do not wish to follow.
The Earl of Caithness: My Lords, I am grateful to the noble Baroness and the noble Lord for the welcome they gave to the Statement. I shall also ensure that the congratulations given to the Red Cross and the Red Crescent are passed on. They are obviously doing sterling work in difficult circumstances.
The noble Baroness asked about numbers. In a situation as complicated, wide-ranging and rapidly changing as this, it is difficult to be precise about

29
numbers—the numbers we can get into the camps and the numbers of refugees who will go down to them. The sooner we can encourage people to return to their own homes in security, the less need for camps there will be. We see the camps as being temporary. To the best of our ability, we and our allies will ensure that there is enough space in the camps to accommodate the refugees. However, that is a short-term solution only. The noble Lord is right; the last thing we want is to have large numbers of refugees settled in an adjacent country. We have seen enough of that in the past.
I return to what my right honourable friend the Prime Minister said initially: this is a temporary operation while we encourage those who have left their homes to return in peace and security in the knowledge that they can live there quietly in accordance with normal laws. That is the long-term step about which the noble Lord asked.
With regard to our aid contributions, over 440 tonnes of equipment have so far been dispatched to Turkey; over 200 tonnes has been dropped by C.130s into Turkey and northern Iraq; aircraft are flying daily to Turkey with further supplies; and nine British helicopters have joined the airlift. There are at present 20 German helicopters on the Iran-Iraq border. There are also a large number of American troops and a large amount of equipment there. A massive relief effort is being made on the Iraq-Turkey and Iraq-Iran borders.
The noble Baroness rightly asked about the water supply. That is of course a key item. My right honourable friend the Minister of State took out water purification tablets to the Iranian side of the border. The noble Baroness asked about what is happening in northern Iraq. That is basically where the troops are at present. The troops are responsible for trying to clean up the water supply as quickly as possible and for encouraging the Kurds to leave the hilltops and move down to the warmer weather where it is easier to get supplies and clean water to them.
The noble Lord asked about the Shi'ites in the south. I repeat that we are concerned about the humanitarian needs of all the Iraqis. The UNHCR has made it clear that it will accept responsibility for the Iraqi refugees sheltering in areas at present occupied by the coalition forces. I confirm that we are pressing Kuwait and Saudi Arabia to take humanitarian measures in respect of this one-off difficult situation. Finally, the noble Baroness asked what the European Community is doing. It has pledged 150 mecus of aid.
4.18 p.m.
Lord Hylton: My Lords, can the Minister give us any information about the negotiations which have been reported to be taking place in Baghdad between the Kurdish leaders and the Iraqi government—they must be extremely important—with a view to getting people back into their houses? Finally, does he accept that in May and June there will be a need for troops who are acclimatised to the Iraqi summer?
The Earl of Caithness: My Lords, the noble Lord raises two important points. First, he is right to say
30
that the negotiations going on between the Americans and the Iraqis in the north and with the Kurds in Baghdad are extremely relevant to the situation. Unfortunately, I cannot give him an update on either of the discussions at the moment.
On the second point, the noble Lord again raises the difficulty that at the moment there is extremely severe weather; sometimes it is not even possible for the Chinooks to fly in, let alone the Hercules aircraft. Yet in a few short months the weather will be extremely hot, creating difficulty. I assure the noble Lord that we have the best possible troops available to look after people under those conditions.
Lord Cledwyn of Penrhos: My Lords, there are no words adequate to describe the appalling tragedy which is unfolding in Iraq on its borders with Turkey, Iran and, in the south, Kuwait. We are grateful to the Government for the efforts that they have made, although we all feel that not only our Government but all governments in the coalition and in the world should have foreseen the possibility of this tragedy some weeks earlier than they did. Are the Government satisfied that the immense efforts called for in order to begin to deal with the tragedy are properly co-ordinated? I ask that because this morning I received a report from the United Nations which referred to the appeal which that organisation made for 400 million dollars on 9th April, out of which 238.5 million dollars was for the United Nations High Commission for Refugees. That was to cover the most urgent needs of the estimated 1.5 million refugees in Iran and Turkey over a period of only three months.
The United Nations report states:
"So far, about 26 million dollars has been pledged"—
out of the total which is required.
"On 11 April the Executive Delegate of the Secretary-General"—
that is Sadruddin Aga Khan—
"… appealed for 423 million dollars to cover new financial requirements for the emergency programme for refugees in Iran and Turkey".
The report mentions the governments of Greece, Japan, Korea and Romania having announced contributions for humanitarian relief for the displaced Iraqi population. There is no reference to the United Kingdom, the United States or France. It is difficult to understand what co-ordination is taking place. I welcome what the noble Earl said about the meeting that he and his right honourable friend are to have tomorrow. Given the immensity of the problem, is he able to tell the House at this stage that the co-ordination between responsible governments is adequate?
The Earl of Caithness: My Lords, in such a case it is extremely difficult to get matters right at day one. As the situation has unfolded the numbers have increased regularly; it has changed hour by hour. Therefore, with hindsight, the co-ordination was not as good as we would have liked. However, considering what has happened, the way in which it has happened and the conditions, the co-ordination has been remarkable. The co-ordination of the NGOs, the very helpful attitude of the Iranian Government recently towards my right honourable friend the Minister of State, Mrs.

31
Chalker, and the help that the Turkish Government have given means that everything is beginning to come together. The past few days have seen much closer co-ordination.
The noble Lord is absolutely right that, in order to make this effective, we need to know what the UN plans to do. That is the key, because we would like the UN to take over the operation. As the House knows, I have already reported that Mr. Suy, the UN representative and his team were in Iraq. He is now in Brussels, having travelled there via Paris where he briefed the UN Secretary General. The Sadruddin Aga Khan has appointed an executive delegate to the UN Inter-Agency Humanitarian Programme for Iraq, Kuwait and the border areas. He will co-ordinate the relief effort. It is not I but my honourable friend, Mr. Hogg, the Member of Parliament for Grantham who will speak to him tomorrow. We shall make it plain to the UN that any money that we give must be used effectively and quickly. We do not wish to give money that just sits in a bank account in Geneva.
Baroness Phillips: My Lords, I wish to repeat a question I asked previously, as did the noble Lord on the Liberal Front Bench. What pressure is being brought to bear by Her Majesty's Government and the American Government on the Saudi Arabian, Bahreini, and Jordanian Governments? These countries are geographically much nearer to the refugees. If they can so quickly supply armaments, I cannot understand why they cannot help with food, tents and clothing.
To my mind, we are striking our breasts and saying, "Mea culpa", as though it were the fault of the West. Surely those countries have an obligation towards their Moslem brothers. It is up to our Government to make that clear to them.
The Earl of Caithness: My Lords, we are making it clear to all the neighbours of Iraq. I have already said this afternoon that we are raising the matter on a consistent and forceful basis with both the Saudi and Kuwaiti Governments.
Lord Murray of Epping Forest: My Lords, I am sure that the noble Earl will agree that donations by individuals or voluntary organisations cannot begin to match the scale of the need and can at best merely complement what governments are doing. Nevertheless, it is desirable for all reasons that we should encourage people and organisations such as churches to give freely. Does the noble Earl agree that too often when an appeal is made, rightly or wrongly—often to hide selfishness—the benefits do not reach people?
Can the noble Earl give us an assurance that everything will be done to ensure that provision of services, whether by governments or voluntary organisations, will reach the people who want and need them? Will he ensure that our own representatives, including the armed forces personnel, will be used to make sure that aid reaches people, that they receive it freely and that they are not exploited by middle men?
The Earl of Caithness: My Lords, the noble Lord, Lord Murray of Epping Forest, raises an important point. That is precisely why we have taken care to see that our aid is channelled through the UN and other agencies, not the Government of Iraq. We wish to see any aid we give go straight to the people who need it and that it is not held by middle men on the way.
Lord Tordoff: My Lords, the Minister will be aware that I am a fully paid up member of the Lynda Chalker fan club, particularly on matters like this. I am extremely glad to hear what has been said about her visit, which has been useful. To a certain extent, it answers the question from the noble Lord, Lord Murray, suggesting that the Government were perhaps a little slow in the first place in sending resources. They wished to be sure that the aid was properly targeted. I support that.
Can the noble Earl assist us by telling us what the Americans are doing about the situation in Iran? It seems that on the face of it they are reluctant to involve themselves in what might be described as the Iranian front. I suppose that that stems from the political difficulties in the past. Are they playing their part on that front? After all, it is a much bigger problem than the one in Turkey.
The Earl of Caithness: My Lords, the noble Lord is right to say that the problem of the refugees in Iran is bigger numerically. This is a matter for the American Government. I do not have up-to-date figures on their dispositions. This is where a united international appeal and co-ordination are required. It is not a matter necessarily of Britain, America or France acting in every area but wherever the aid can best be used with the host country.

Criminal Justice Bill
4.28 p.m.
House again in Committee.
Clauses 35 and 36 agreed to.
Clause 37 [Sexual offenders]:
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 80:
Page 25, line 18, at end insert:
("(1A) A court shall not make a direction under paragraph (b) of subsection (1) above unless it does so for the purpose of extending the period during which the offender is required to participate in treatment or therapy designed to reduce the likelihood of further sexual offences.").
The noble Baroness said: This amendment was discussed earlier in the debate. It is therefore not moved.
[Amendment No. 80 not moved.]
Clause 37 agreed to.
Clauses 38 to 44 agreed to.
Schedule 5 [Notices of transfer: procedure in lieu of committal]:
Lord Mottistone Lord Mottistone moved Amendment No. 81:
Page 76, line 38, at end insert:
("(5A) Sub-paragraph (5) above shall not have the effect in a case involving a child witness as defined in section 44(6) of this Act.").
The noble Lord said: This is a small probing amendment. It is an amendment together with all those up to and including Amendment No. 90 in my name On which I have been advised by the NSPCC and the Children's Legal Centre. Some of the principal advice has come from one or other of those bodies, and I do not propose to delay the Committee by identifying which at any particular time.
Amendment No. 81 seeks to clarify the position of a child witness in cases where an application has been made for a dismissal as provided for in paragraph 5 of Schedule 5. As the paragraph stands, it appears that a child witness could be required to give oral evidence under sub-paragraph (5) of the paragraph.
Although the provision is likely to be very little used, it seems contrary to the spirit of Part III of the Bill, and indeed of the Bill as a whole. Part III is very much about recognising the needs of vulnerable child witnesses and of meeting those needs, not only for the benefit of the child but for the benefit of a court in that a child who is properly handled is more likely to give evidence of value to the court. So it would seem unfortunate if the situation as described in Schedule 5 were to come about.
I should be most grateful if my noble friend the Minister can clarify whether I have interpreted this aright and, if not, what the situation is as he sees it. Perhaps he can say whether he considers that the amendment might be usefully accepted, not necessarily in its present form but achieving a similar purpose. I beg to move.
Lord Hutchinson of Lullington: Clause 44 and Schedule 5 set out a mechanism whereby the Director of Public Prosecutions may direct that committal proceedings can be bypassed. It gives him the unappealable and unilateral power to issue such a direction to the relevant magistrates' court, and he may choose the place where the trial shall be held.
The evidence against the accused person at that stage will consist either of an unsworn statement by the child or a video recording made to a police officer or, to use the words of the clause, to some other adult. The schedule sets out a procedure for an accused person to apply to have the case dismissed before arraignment by submitting to the Crown Court judge that there is not sufficient evidence on which the person should be committed. If the judge considers—these are the vital words—that the interest of justice requires any oral evidence to be given to assist him to make that decision, he can order any witness to attend for that purpose. If the person fails to attend, the judge may disregard the written or the video evidence which, in his view, is evidence which is so equivocal that he would find it impossible to decide at that stage whether the case ought to be dismissed or not.
This provision replaces the safeguard of committal proceedings, which can be a very important safeguard indeed for the citizen, in the normal process. Committal proceedings entitle an accused person to test the prosecution evidence, to establish its inadequacy, its irrelevance, its unreliability, its admissibility, or indeed often its dishonesty, thereby saving an enormous amount of expense and trauma to
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the accused. It can also be used to clarify and pin down witnesses to facts and not to opinions or to inadmissible evidence.
This provision applies not only to the alleged victim but to any witness in the proceedings who is a child. Therefore, the amendment would effectively remove the only safeguard which is left for the accused person at that stage. Under the Bill—it is important to appreciate where we have put an accused person—the evidence against that person will not have been given on oath. It will not have been given before a magistrate, nor will it have been subject to cross-examination. There will have been no committal proceedings enabling him to dispute the evidence. A video recording will have been taken in his absence before someone who is not a judicial officer. That is the position. To deprive that person further by means of this amendment might lead to great injustice.
Perhaps I may give a simple example. Let us suppose that it appears on the statement of the child that there is a real doubt as to whether the child is referring to the person who has been charged. Let us suppose that the evidence is equivocal on that absolutely central point in the case. If this amendment were passed the judge would be unable to ask for the child to appear in order to clear up the problem and for him to make up his mind whether there is a proper prima facie case in which the child identifies the person who has been charged, or whether the child is or may be referring to somebody else. Such a situation is totally central to the whole matter.
The amendment would make the situation very dangerous indeed. I shall certainly resist it.
Lady Kinloss: I support the amendment. As Schedule 5 stands a child can be called in to give oral evidence to a judge in chambers which means that the child would have to give evidence twice. Although the provision is likely to be very little used, surely it is contrary to the spirit of Part III of the Bill which, as the noble Lord, Lord Mottistone, said, very much concerns recognising the needs of vulnerable child witnesses.
Earl Ferrers: My noble friend has drawn attention to what is arguably a small but not insignificant loophole in the Bill. He rightly said that the whole thrust of the Pigot clause is to minimise the need for child witnesses to make courtroom appearances and so, on the face of it, there is a potential anomaly in Schedule 5.
Under the procedure in lieu of committal in Schedule 5 to the Bill, the judge must not order a child witness to be called to give oral evidence unless he is satisfied that it would be in the interests of justice. It is not easy to foresee the circumstances in which those interests would require it, given the prevailing attitude that child witnesses should be spared courtroom appearances and the existence of a video recording of the child's evidence which the judge can view. It is also relevant that, if the committal proceedings had taken place, by virtue of Section 103 of the Magistrates' Court Act 1980 the child could not have been required to give oral evidence at those proceedings.

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I do not imagine that the situation would arise very often, but I agree that the possibility, remote though it may be, should not exist at all. I am at present examining ways in which the loophole identified by my noble friend might effectively be closed, with the intention of bringing forward an amendment at Report stage.
The noble Lord, Lord Hutchinson, was afraid that the amendment would remove the only safeguard for the accused. Under the Bill the committal proceedings will be bypassed only where the Director of Public Prosecutions is satisfied that there is sufficient evidence to justify committal for trial if a violent or sexual offence has been committed against a child or has been witnessed by a child and the Director of Public Prosecutions is of the view that the case should go to the Crown Court and be proceeded with without delay. The safeguard, which is set out in detail in Schedule 5 of the Bill, is that the defence can apply to the Crown Court judge for the case to be dismissed if it believes that there is insufficient evidence.
Judge Pigot's group considered, and we agree, that, in cases which involve children, existing committal procedures are irredeemably flawed. They enable defendants to subject child witnesses to all of the burdens of delay, appearance in open court and face-to-face confrontation with the accused. In that respect they seek to frustrate the very objectives which the Bill seeks to achieve.
I am grateful to my noble friend for putting down the amendment. As I said, I am considering whether we can effectively close the loophole to which my noble friend has drawn attention.
Lord Mottistone: I am grateful to my noble friend the Minister for his encouraging remarks and for the fact that he recognises that there is a loophole. I shall look forward to an amendment from him at a later stage of the Bill. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 agreed to
Clause 45 [Video recordings of testimony from child witnesses]:
4.45 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 82:
Page 29, line 35, at end insert:
("() In any proceeding under subsection (1)—

(a) the Crown may seek leave of the court for a child witness to be examined and cross-examined at a pre-trial hearing at which only—

(i) the judge;

(ii) lawyers for the parties; and

(iii) an appropriate adult to accompany the child as set out in the Code of Practice

shall be present in the same room as the child.

(b) The pre-trial hearing of the evidence of a child witness shall be video-recorded and the video-recording shall, with the leave of the court, be tendered in evidence before the jury.

(c) In deciding whether to ask the leave of the court to tender the evidence of a child witness in the form of a video-recording of a pre-trial hearing the Crown shall ascertain, and be guided by, the wishes and feelings of the child.").

The noble Lord said: In moving Amendment No. 82 I should like to speak also to Amendments Nos. 83 and 84, which are consequential upon it.
Clause 45 of the Bill makes video recordings of the testimony of child witnesses admissible but only where the child is available for cross-examination at a trial if required. The Bill does not make provision for cross-examination to be carried out at a pre-trial hearing. The report of the Advisory Group on Video Evidence, generally referred to as the Pigot Report, recommended that child witnesses:
"ought never to be required to appear in public as witnesses in the Crown Court".
It also suggested that the prosecution should be able as of right to apply for a child witness to be examined and cross-examined at a pre-trial out-of-court hearing which would be video recorded and later shown to the trial jury. The report also recommended that the prosecution should always be guided by the child's own wishes in deciding whether to apply for a child to give evidence in that way.
In those cases where further cross-examination of the child witness after the pre-trial hearing was deemed necessary the Pigot Committee envisaged such cross-examination taking place at a further out-of-court hearing. The Government have expressed concern that such an arrangement might lead to repeated recalls of child witnesses and to practical problems in ensuring that the same judge presided over all aspects of the trial.
The amendments seek to bring about an arrangement which would embody the spirit of the Pigot Committee's recommendations while taking into account the practical difficulties which might arise if the possibility of cross-examining child witnesses at trial were removed altogether. It makes provision for the hearing of evidence in chief and cross-examination to take place at a pre-trial hearing. At the same time it makes provision for cross-examination at trial in those cases where evidence comes to light after the pre-trial hearing which in the opinion of the court could have a significant bearing on the outcome of the case.
Amendment No. 82 would enable all children to be cross-examined immediately after giving evidence in chief, when events are generally clearer in their minds than at a later stage, and would prevent children being called to give evidence at a trial unnecessarily. It would also allow for those cases in which the interests of justice would be served by further cross-examination of the child during the trial.
At present the recall of child witnesses after cross-examination has taken place seems to be rare. Provision allowing for cross-examination to take place at an out-of-court hearing need not increase the number of such recalls provided they are allowed only for the purpose of examining new evidence which could potentially have significant effect on the outcome of the case.
My amendments would provide a framework within which judges would be enabled to exercise appropriate vigilance in ensuring that child witnesses are not recalled unnecessarily. Within that framework many children could be spared the ordeal of giving

37
evidence during a trial while the degree of flexibility necessary to provide practical means of ensuring a fair hearing in all cases would be retained.
In addition to the NSPCC and the children's legal body I have also received a letter of support from the President of the Royal College of Psychiatrists, who makes some of the points that I have just mentioned. The Committee may be interested in the additional points that he made. It is pointed out that a child's recall of events has been shown to be much more full and accurate at an early stage after the crime and in sympathetic surroundings than at the trial some months later. Furthermore, the need to appear in open court, with its great disadvantages for children in terms of further psychological trauma and their inability to help the court and provide full evidence, can be reduced.
In summary, not only is it important, as the Pigot Committee made so clear, that the child should be spared the trauma and that the child's evidence is of value to justice in the widest sense, but, if there has to be a long delay, a very young child or one who has been brought up in sheltered surroundings may easily forget what has happened or invent things that might have happened but which did not happen. Not only are we seeking to protect the child in such cases but we are trying to ensure that justice is improved. That is an important factor that needs to be considered at all times. I beg to move.
Lord Renton: This is an amendment which should be very seriously considered by my noble friend on the Front Bench. As we are in effect embarking upon a new and important development in criminal procedure we need to make quite sure that we get it right. The idea that the evidence of the child should be taken by video and not in the presence of the public at large is one that should be given very serious consideration. It is a principle of natural justice that all trials should be conducted publicly; but here we should acknowledge that there should be a justifiable exception to that general rule of natural justice.
For the most part, I feel sympathetic at the moment—naturally, I want to hear what my noble friend on the Front Bench has to say—to what is proposed, but with one exception. It is unthinkable to me that we should include paragraph (c) in Amendment No. 82, because that would in effect give the child a veto on whether his or her evidence should be called. I must remind the Committee that when, for example, evidence is taken abroad on commission or is given in a deposition or—more rarely in a criminal case—by affidavit, the person who has given such evidence, whatever the manner in which it is given, has no right to say, "I do not want my evidence used at the trial". It is unthinkable to me that we should allow a child of immature years, who may have valuable evidence on which the result of the trial can depend, in effect a veto.
The only other point that I wish to add is that I very much agree with Amendment No. 83. I do not think that we should leave out subsection (5) on page 30, as proposed by my noble friend Lord Mottistone. I do not think that the Government have that quite right. Certainly, looked at in its rather bare bones method of
38
expression, it does not read at all well. I shall quote from the beginning of the subsection to paragraph (b), which is not quite right:
"Where a video recording is admitted under this section…that witness shall not be examined in chief on any matter which, in the opinion of the court, has been dealt with in his recorded testimony".
If we are to have that provision, there should be a reference to the evidence being dealt with adequately because it may have been dealt with in a cursory manner.
Lord Mottistone: I think that my noble friend is talking about Amendment No. 84, although he has told me that he is talking about Amendment No. 83. I missed a great deal of what he said because I was trying to find my way about.
Lord Renton: I am so sorry. I thought that I was dealing with Amendment No. 83, but it is Amendment No. 84. I am much obliged. I seek the Committee's pardon.
It is quite right to leave out those lines, but the mistake to which I referred has, alas, been repeated in the alternative phraseology proposed in Amendment No. 84. The words,
"has already been dealt with in his recorded testimony",
do not go far enough. It is essential that the matter should be dealt with adequately, and the word "adequately" should therefore be inserted, both in Amendment No. 84 and in the words which it is proposed should be left out.
This is not an easy issue. We are breaking new ground. However, a constructive way of dealing with the matter has been proposed which we should consider carefully and sympathetically, subject to those two matters which I find difficult.
Lord Campbell of Alloway: Perhaps I may briefly support my noble friend Lord Renton when he says that neither the Bill as it stands nor the proposed amendment has the matter quite right. We are breaking new ground, and further and earnest consideration should be given to the subject. To save time, I support without qualification everything that my noble friend Lord Renton said about the veto. However, I am also worried about another aspect of the amendment. It seems wrong that, in a jury trial, evidence at the trial should not be heard before the jury. As I understand it, the amendment would preclude that.
Lady Kinloss: I should like to speak to Amendment Nos. 82, 83 and 84. As I said on Second Reading, and as the noble Lord, Lord Mottistone, has already said, the Pigot Report recommended that child witnesses
"ought never to be required to appear in public as witnesses in the Crown court"
and suggested that the prosecution should be able, as of right, to apply for the child witness to be examined and cross-examined at a pre-trial, out-of-court hearing which would be video-recorded and later shown to the trial jury. The amendments have been put down in recognition of how traumatic it is for a child to appear in open court and the number of cases

39
that collapse because the child witness has broken down. That is a huge waste of public money; not only that, but justice is not done.
Lord Hutchinson of Lullington: I should like to echo the approach of the noble Lord, Lord Renton, and I emphasise that we are breaking new ground, and that it is essential to get this matter right. It is an extremely difficult area and I am sure that the Committee will not grudge any time spent now because the amendment is of great importance.
I am unable to support the amendment, although I sympathise wholly with the feelings behind it. I say that not as an old dinosaur of a lawyer, but as someone who has wrestled with the problem of how to achieve justice in child abuse cases or cases in which children give evidence within our adversarial system, both as an advocate and as a judge over a great many years; indeed, many years before Miss Esther Rantzen hit our television screens.
All judges have prejudices. My prejudice centred on the abuse of children. I found it extremely hard to forgive anyone whose sexual feelings were aroused by contact with children for taking on work which involved positions of trust in relation to children. Before sentencing persons who betrayed such trust, I would often adjourn a case until the next day in order to ensure that a calm and detached disposal was arrived at. In earlier years, as an advocate, I made it a special point to attend juvenile courts in many capacities, starting with, as some of the older Members of the Committee may remember, the juvenile court at Toynbee Hall, presided over by Basil Henriques, who was a very remarkable man. I learnt a great deal there. It is impossible to do justice in many of those cases because young children's evidence is so often simply not open to the normal tests of veracity or reliability. Yet child abuse quite rightly arouses such feelings of condemnation that jury trial is of paramount importance in those cases.
I have often asked a child witness—I hope in the most gentle way—whether he or she understands what it means to tell the truth, and whether he or she understands what telling a lie means. The child will solemnly say, "Yes". I then say to the child, "When you said what happened happened because of Mr. X, you were telling a lie, weren't you?". In many cases the child will answer, "Yes". In those circumstances, why is that so? The child may say that because it wants to agree with the person asking the question; it may be said through fear or lack of comprehension, or it may be said because it is true. It is incredibly difficult to know which of those reasons is the one giving rise to that very simple answer. That makes it impossible for a judge to allow the case to go any further on the basis that the case has to be proved beyond reasonable doubt. But no one in the court would feel my cross-examination showed that the child was a liar. It would merely mean that the child's evidence was not reliable according to our system.
I have always taken the view that every conceivable effort should be made in an abuse case to divert it from court and not deal with it in the adversarial atmosphere of a criminal trial. Of course where the
40
offence is a horrible one, the matter has to go to court. However, in many cases more harm is done by taking the case to court than trying to deal with it out of court. I know that the noble Baroness, Lady Faithfull, has in the past had enormous success in taking that particular course. I wish that the more strident members of the child abuse lobby (if I may call them that) would put more effort into trying to find some way of not bringing such a matter to court than arousing a great deal of fuss about what happens in court.
It seems to me to be extraordinary that people say children do not fantasise. Anyone who has brought up children knows that they do fantasise; it is part of their fascination and absorption in fairy tales, nonsense poems and so on. Children not only fantasise, but sometimes lie. They often do so for a thousand different reasons which adults find difficult to understand. But lie they do. They often tell the truth. It is very difficult to find out which it is. There are the gravest difficulties in ensuring justice is achieved.
I must point out to some of those who have put their names to this amendment and to others that in the criminal courts it is the interests of justice not the interests of the child which are paramount. In considering the present amendment, I do not know whether the Committee appreciates the work which has to be done when a charge of child abuse is made. Maybe the defendant is a father, a teacher or whatever, and says to his legal representative that the allegation is simply not true. That is the end of it so far as he is concerned if he is innocent. Consequently, every channel has to be explored. First, is the evidence of abuse clear? Is it the evidence of other children? What is the background? Has somebody put them up to it? Is there any motive for doing so? Is there scientific, forensic evidence and, if so, does it require an expert to analyse it? Secondly, is it possible that somebody else has done it and, if so, who could it be? Could it be a babysitter, another member of the family, a visitor, or another member of staff in the school? Thirdly, is there a motive for putting the blame on the accused? For instance, one sometimes hears a rumour that the babysitter is the lover of the mother, that the headmaster is a homosexual, or that a brother of the child concerned has interfered with someone else's child. Has the child been coached? Is the child in fear of someone? All of those possibilities may arise. As an advocate, one may reach the trial with hard evidence or one may get it only by the most careful and persistent questioning of other witnesses in the case, particularly if they are children.
It is wholly unrealistic to think that justice can be done by any representative of an accused person to cross-examine a child witness weeks or months before the trial takes place. The advocate has a professional duty to put the whole of his case to the witness at the time of his cross-examination. He must not hold back things for later speech or cross-examination. It would be quite impossible months before a trial for someone appearing in these dire circumstances to put the whole case to a child witness. If I may say so, the Government was quite right to say in the other place that the amendment would mean repeated recalls of

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the child witness as the trial went along. In addition, after a long cross-examination by an advocate in those circumstances the accused might plead guilty at the trial, in which case the whole cross-examination would have been pointless and the child put through trauma to no purpose. Supposing a number of children were giving evidence in the same case (as so often happens), how could the answer by one child then be put to another without that other child being recalled and the others being recalled in due course when certain further children gave evidence? I suggest that the idea of cross-examining all of them weeks or months before the trial is wholly impracticable. The amendment is well-meant, but I suggest it will simply result in possible injustice and probably add further trauma to the child in the end.
Referring to Amendment No. 84, what it amounts to is that there should be no cross-examination of the child in front of the jury except when new evidence is tendered. Suppose new information becomes available to the defence. It cannot be limited to just new evidence. It would be on the basis of new information which comes in which may not in itself be evidence at all. Indeed, information may come during the trial and not at earlier stage. I do not know what the words, "already been dealt with" mean. If the child says, "That was the person who abused me", has that "been dealt with"? Can one not suggest that it was somebody else? Is that a matter which has already been dealt with? The child may say, "I was not coached to give my evidence". If it appears during the trial that clearly the chili has been coached, as appeared in the Orkney case (all the things in that case being precisely the sorts of matters one feared might happen), is that a matter which has "already been dealt with"? Is one not able to suggest that the child was coached? Again, it does not seem to me to be a very practical situation, although it is a situation which should have all our sympathies.
5.15 p.m.
Baroness Faithfull: I rise to support my noble friend Lord Mottistone. Like the noble Lord, Lord Hutchinson, I too wish that we could prevent such cases coming to court. I must tell the Committee that in all the 18 years that I was a children's officer and then a director of social services, only one case came to court. I personally always saw the alleged abuser, the child and the mother. I shall not go into the way in which I dealt with the matter. However, I would always hope that, if possible and practicable, we could keep such cases out of court. But that is not always possible.
My noble friend Lord Renton said that we were breaking new ground and so we are. Cases have multiplied—or have come to light. They were always going on. We simply did not know about them. When the Cleveland situation broke I had an enormous number of calls from people involved in previous cases of children who had been in care whom I had taken before the courts for juvenile delinquency. They were now women of 35 or 40. They rang up and said, "We never told you that our real problem was that we were
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abused in our home". I asked, "Why did you not tell me?" They replied that it was not done in those days ever to talk of it. Such cases have been going on.
I shall not rehearse the arguments which were so clearly put by previous speakers supporting the amendments. Perhaps I may mention a few further points which may be quite distasteful to some members of the Bar. As has been stated, Amendment No. 82 makes provision for cross-examination at a pre-trial hearing in protected surroundings. Present at a pre-trial hearing would be the judge, counsel for the defence, counsel for the prosecution and of course the child. It is envisaged that the alleged abuser would be in an adjoining room behind double glass so that he could see the proceedings but the child could not see him. The alleged abuser could hear the proceedings by means of an auditory receiver by which he could communicate and hear his counsel for the defence.
I know that that is a most extraordinary recommendation to make and that it is unacceptable to many people. But in a different context the method is used in both health and education. A video would be made of the proceedings with the permission of the judge and presented to the court. My noble friend Lord Campbell of Alloway made the point that the jury must hear the evidence. The jury would see the video recording of the cross-examination. I know that some members of the Bar react with instant aversion to the new procedure supplied by this amendment. I understand their anxiety. Over many years they have been used to employing the adversarial system before the jury. That has been their stock in trade and they can envisage no other method.
I hesitate to disagree with the noble Lord, Lord Hutchinson, because he is so good at coming back at me. However, research has shown that so long as it is as near as possible to the event, young children do not lie. I have with me details of an extraordinary case. I shall not read it out to the Committee because it is four pages long. In the case of a child called Susie, the court ordered that a video deposition conducted 61 months later was not so detailed or realistic as an earlier interview. The nearer to the event, the more truth the child tells. Further away from the event, the child becomes confused and muddled. Therefore it is in the interests not only of the child but also of the accused, the alleged abuser, to ensure that as soon as possible the pre-trial hearing takes place. One then is much more likely to discover the truth.
It is only in the past few years that we have had so many child abuse cases before the courts. I repeat that new, strange cases demand a new court structure to deal with them. I should point out that some years ago the Home Office and the Bar reacted unfavourably to the idea of the television link method allowing the allegedly abused child to be in a separate room from the court. That is now common practice throughout the land. However, there was a great deal of adverse criticism before that method was tried.
Why therefore do we not try this method, perhaps in three areas? Many Members of the Committee spoke, worryingly perhaps, against the amendment. In the case of the television link, when there was adverse criticism, we tried it, experimented and finally

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accepted it. Why do we not in this case have a trial in perhaps three areas? I am bound to point out that the amendment is based on the recommendations of Judge Pigot in the quite extraordinary report of the Advisory Group on Video Evidence. Judge Pigot and his committee, one of whom I must point out was a detective chief superintendent in the Metropolitan Police, and another a barrister, agreed with the recommendation. The judge had wide experience. He was a circuit judge from 1972 to 1990. He practised in Liverpool on the northern circuit until 1977. He was appointed as Common Serjeant in the City of London. He had had wide experience and we pay tribute to his wisdom and work.
If the Home Office and the Bar will not accept this amendment, perhaps I may suggest that, as with the television link process, the method of a pre-trial hearing should be tried experimentally. A conference was organised in Leeds University at the Department of Psychiatry. The big hall was full. The conference was attended by the West Yorkshire Police, social workers, teachers and lawyers. The recommendations of the Pigot committee were reported, discussed, debated and accepted 100 per cent. by all those people.
Furthermore, the principle of the Pigot recommendation is not new. Sections 42 and 43 of the Children and Young Persons Act 1933 already provides that where a court appearance would endanger a child's life or health, he or she can be questioned before a magistrate provided that the defence is able to put questions and a written transcript of the interview can replace the child's live evidence at the trial. If the Minister finds himself quite unable to accept the amendment, perhaps he would think of looking at Sections 42 and 43 of the Children and Young Persons Act and possibly widening them.
Perhaps I may gently chide the noble Lord, Lord Hutchinson. On 16th April—in a completely different context, I admit—the noble Lord chided the noble and learned Lord, Lord Ackner, for resisting a new idea. He said:
"For … years the noble and learned Lord was teaching the old culture of sentencing"—[official Report, 16/4/91; col. 1372.]
At col. 1386 he said:
"He is clearly stuck in the old … culture".
Are those who speak strongly for the amendment "stuck in the old culture"? We have new circumstances which must be met in a new way.
On the question of justice, naturally the children's organisations support the amendment, as the noble Lord, Lord Mottistone, said. Therefore it could be said that we are biased. As the noble Lord, Lord Hutchinson, said, we must agree with justice. It is in the interests of the child that an alleged abuser—in particular if the allegation involves the father—should be found not guilty and should receive justice if he has not committed the offence, as indeed should any other man. I am conscious of that situation as last year I had to deal with a man who was wrongly accused of having had sexual dealings with a foster child. The case never came to court. However, justice should be done to the child, to the alleged abuser and to the community.
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On justice for the community, have any Members of the Committee ever taken a child into a court? One takes the child the day before the hearing and says, "The judge will sit here. The jury will sit here. You will sit here and you will just answer the questions that you are asked". The child says, "Yes". The next day one takes the child to court; he does not answer anything and the case has to be discharged. Is that justice for the community? Is that justice for the alleged abuser who has neither been found guilty nor not guilty? That seems a very serious situation.
I turn to the issue of justice for the child. The case which I cited involved a child of three. I shall not go into the horrible things that were done to her but at an early stage the child was able to say exactly what happened and was able to choose from a number of men the man who in fact committed the offence. Research at the Park Hospital in Oxford and from overseas, in particular in Colorado, has shown that the younger a child is, the clearer the truth when the account is given nearer the event. I therefore consider that with these provisions justice would be done. I support the amendment. If the Minister cannot accept it, I hope that he will at least reconsider the position, because new and terrible cases such as the one to which I have referred need to be dealt with by a different method.
Lord Ackner: I rise, first, to give the Committee an assurance that it is not the inevitable stimulation of the oft-repeated Hutchinson refrain that has at last brought me to my feet. As a matter of ordinary tactics, I had waited to hear the noble Lord speak first before I rose to disagree with him.
I start by at least showing this degree of harmony. I entirely accept that it is a very sensitive area of criminal law in which one must be particularly on the qui vive to ensure that justice is done. We are concerned with the provision of a fair trial. However, a fair trial, as is so often said to be the case, means fairness to the prosecution as well as to the defence. The fairness must be within the context of the adversarial system because there is currently no intention to change it. Therefore there is little to be gained by saying, "If only we had another system". We have not; and we must make the best use of the system that we have.
In order that the trial is as fair as it can be, one of the essentials is to ensure that the quality of the evidence to be given against the accused is at its best. In regard to children, one achieves that—as to an extent one does with adults—by two very clear principles. First, one tries to reduce the ordeal in which the evidence is given. The greater the ordeal, the greater the difficulty of any witness to give evidence which properly records what in fact happened.
As a Queen's Bench judge over a period of nine years, I have tried a number of children cases. One has seen the harrowing experience which the child inevitably has to undergo in describing in detail, and even more so under cross-examination, the abuse which is alleged. Quite obviously there are a number of occasions when the child gives evidence which is inaccurate. The noble Lord, Lord Hutchinson, referred to a child who, under his or someone else's

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cross-examination, admits almost with the first answer, "It's a lie". That may be a truthful answer. It may have been in order to bring to an end an ordeal which the child finds quite intolerable. So much then for trying to reduce the ordeal.
The other feature of any reliable evidence is to get the evidence on record as soon as one possibly can. A policeman writes a contemporaneous note in order that he has a record of what happened; and indeed any layman who is involved in an accident is well advised—assuming that he is in a fit state to do so—himself to write a contemporaneous record of exactly what has happened. One must bear in mind that, if one leaves the child for months before he or she gives his or her evidence, one may well find what I expect the more technical people would refer to as protective amnesia: a forgetfulness which has been brought about by the sheer overwhelming desire to put out of the mind what he or she has found so horrible. The nearer one brings the account to the event, the more likely it is to be reliable. In an informal situation such as the pre-trial suggestion, the material will come out in a much more natural way and is therefore likely to be that degree more reliable.
Crass-examination is available. No one suggests that such material should not be challenged. But it is being challenged, on the suggestion made in the amendment, at the earliest possible practical stage; and that is when the challenge may be most effective. No one seeks to shut out the defence who subsequently find relevant material which should have been put to the child. I accept that those occasions will occur but they are likely to be rare. When they occur the child is obviously subjected to the trauma of having, on a second occasion, to re-live the events. But the r umber of occasions on which that will not occur surely justify the two-stage situation.
Tie noble Lord, Lord Hutchinson, said that having gone through this process one may end up with a plea. The process may stimulate the pleas because the defence will have the majority of the material well in advance, subject to any new matters that may arise. That can be considered between solicitor, counsel and the client in deciding whether his account remains the same. I venture to suggest that the number of pleas that should have been made in the first case will increase significantly.
I do not wish the Committee to believe that I have merely surrendered to the irresistible persuasiveness of the noble Baroness, Lady Faithfull. I have a recent letter written on behalf of the Council of Her Majesty's Circuit Judges. The last paragraph states:
"May I raise one fresh matter. In our response to the proposals of the Pigot Committee on Children's Evidence, which we very much welcomed, we envisaged a scheme whereby the child's evidence—certainly that of a child victim—would be completed by cross-examination and reexamination in an informal setting before the actual trial began and would be video'd for the Jury.
This is at present not contemplated by the Bill and we urge further consideration to be given to this".
As I mentioned in this Chamber last week, the circuit judges carry out by far the bulk of criminal work in the Crown Courts and certainly in this category of case.
Reference was made to His Honour Judge Pigot. He was the Common Serjeant, the second senior judge
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at the Old Bailey, until his illness. There is no doubt that he would have been the Recorder of London but for that illness. Not only was he a highly experienced practitioner in the criminal field but he was the most respected of circuit judges who has sat in the past 10 years. I do not believe that the dangers pointed out by the noble Lord, Lord Hutchinson, were likely to have escaped him, let alone his committee. I firmly support the amendment.
5.30 p.m.
Lord Renton: Before the noble and learned Lord concludes his interesting speech will he deal with a point that has not yet been raised in the debate? Consideration of it follows naturally from what he said about the way to obtain the best evidence. The noble and learned Lord will have noticed that Amendment No. 82 provides that the accused will not be among the people present. Until now it has been fundamental that the accused should always be present. How does the noble and learned Lord view that proposal? Does the absence of the accused mean that the evidence is more likely to be obtained truthfully, as I believe to be the case?
Lord Ackner: That is probably the case. One can envisage a situation in which the child, to use a lawyer's phrase, cannot come up to proof in the presence of a father, stepfather, uncle or whomever. However, the accused will not be debarred from hearing and seeing through the video what is going on. He will be able to communicate with his counsel and give his comments about the evidence as it emerges so as to ensure that the cross-examiner has any additional material that he requires arising out of the answers that are given.
Lord Hutchinson of Lullington: Does the noble and learned Lord really consider it practical to cross-examine five or six children weeks before the trial in the absence of the other evidence which will be given in the court; for instance, that of the social workers and the police who took the statements? As an ex-advocate who perhaps did not often appear for the defence in such cases, does he really consider that to be a practical proposition?
Lord Ackner: Since my noble friend retired from active practice, increased impetus and pressure have been put upon the advocate and his instructing solicitors to prepare their cases a great deal earlier than used to be the case. The obligation to submit, for instance, a skeleton argument and to attend pre-trial reviews and conferences has added—and I sympathise—to the burdens placed on the busy practitioner. He must now work faster and obtain from his solicitor, whose burdens are also thus increased, the information that he would have waited for leisurely. That can be done but, as are most professions, we are resistant to learning new tricks. We must do so.
Lord Henderson of Brompton: I wish to speak immediately after the noble and learned Lord, Lord Ackner, because I strongly agree with what he said. I wish to tell a short story. I do not possess the expertise of Members of the Committee who are learned in the

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law, nor that of the noble Baroness, Lady Faithfull. However I have personal experience which confirms the wise words spoken by the noble and learned Lord, Lord Ackner.
Long ago one of my children was sexually assaulted by a stranger. He was not a member of our household; he was totally unknown to us. At the time the child was aged six and there was one independent witness aged four. I wish to endorse what was said by the noble and learned Lord and the noble Baroness. The further away one gets from the event the more muddled and confused the child becomes. The noble and learned Lord said that the quality of a child's evidence is at its best when given as soon as possible after the event.
Our experience was that the child was able to make a composed statement before a kindly police constable about two hours after the incident. The child was able to give a sufficiently accurate description of the offender and his car to enable the police to apprehend him. I should have welcomed the Pigot proposals at that time so that the child would have been able to give as clear an account to a trained examiner, following a code of practice, as it was possible to give to the police constable.
I shall say little more because fortunately the accurate deposition of the child was such that the man admitted his crime. Therefore the child did not have to appear before the court to which the offender was sent for sentence, which was an immense bonus for my family. That was the most distressing event which has ever occurred to me or to the child.
Anything which can be done in consideration of the child should be done and the Pigot proposals should be treated with the utmost seriousness by the Government. All the points which have been raised by a number of most respected Members of the Committee who are learned in the law—from the noble Lord, Lord Renton, the noble Lord, Lord Campbell of Alloway, and the noble Lord, Lord Hutchinson of Lullington—should be examined with great care. However, those are Committee points which should not be allowed to get in the way of this most important amendment.
Earl Russell: This is an intensely difficult matter. It is a clash between right and right. The noble Baroness, Lady Faithfull, and my noble friend Lord Hutchinson of Lullington both made extremely powerful cases.
It is not only a clash between right and right but also between two cultures: those concerned with child welfare, with an immense amount of knowledge and experience behind them, and those concerned with the administration of justice. Where there is a culture clash in the drafting of legislation, we must accept that we shall never get it right because there is no such thing as a draft which is entirely right.
On the one hand, those concerned with child welfare are clearly right that children are more likely to tell the truth when not in the presence of the person being accused, in a reasonably friendly environment and as near to the time of the alleged incident as possible. In those ways, their case is powerful. On the other hand, the legal profession is concerned that all
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the arguments should be heard in public, all the issues should be heard together and that there should be a right to challenge whatever is said against an accused person.
The resolution of this matter must be to choose the path which is most likely to get at the truth. That is the line pursued by the noble and learned Lord, Lord Ackner. If he is right that accepting this amendment would mean that we should be more likely to get at the truth, that would be the end of the matter. The question is: is it?
I shall not pursue the question of how far children can lie. On this, on the whole, my sympathies are with my noble friend Lord Hutchinson, but that is a long argument and I do not believe that we need go into it now. I cannot see that the law in its official capacity can ever presume that any category of people cannot lie because once the law presumes that, then it is not conducting a trial. The first time I ever heard a case in court, which was a long time ago now, the judge was explaining to one of the accused, in effect, that policemen cannot lie. I do not believe that any judge would say that today.
There must be the possibility of challenge. For that reason, I am not entirely comfortable about the provision of cross-examination before trial. I understand entirely the arguments upon which that is put forward. The case put by the noble and learned Lord, Lord Ackner, is sound as far as it goes.
The question is: which is the most powerful case? I cannot make up my mind about that. A cross-examination before trial seems to me rather like conducting a Committee stage before the publication of a Bill. In some cases it may assist to get at the truth but I can think of a great many in which it may not.
The other point on which we seem to be stuck is the problem of recall. Here I shall ask the noble Lord, Lord Mottistone, and the drafter of the amendment whether they will consider a slightly wider drafting of the circumstances in which recall would be permitted. Should the emergence of new information be the only circumstance? As far as I can see, recalls are most likely to be needed when a new question arises and a new issue emerges, which often happens in the course of cross-examination. Because the court wishes to be satisfied on a new question, it needs to ask some more questions.
I agree with the noble Lord, Lord Renton, about paragraph (c) of the amendment. I am glad that he made that point. I do not believe that the Bill has it quite right although it is very near to it; I do not believe that the amendment has it quite right although it is very near to it. I have a great respect for the adversarial system but on this issue I do not believe that we shall make progress by adversarial methods. Perhaps the Minister will agree that before Report stage there is a case for a quiet round-the-table discussion among some of the interested parties to this issue to see whether we can produce a slightly better form of words, with a slightly larger area of general agreement.
5.45 p.m.
Lord Richard: For a member of the Bar prudence and self-preservation always mean that one sits down when a judge is about to speak. In this case I was delighted to sit down when the noble and learned Lord, Lord Ackner, rose. When he sat down I found that I agreed with almost 80 per cent. of what he said. Therefore, not only was it a pleasure but it was a surprise.
I listened very carefully to everything which has been said in the debate. As a practising lawyer, at first blush I found the provisions of the amendment difficult to swallow. The proposition that there should be an examination and cross-examination way in advance of the trial and that that should be the evidence received at the trial is a difficult one for those of us who practise in the courts. We are inevitably faced with an adversarial system in which the witnesses from one side give evidence and are cross-examined there and then and the other side's witnesses also give evidence and are cross-examined there and then.
However, on reflection the amendment is rather more acceptable, even to a lawyer used to the adversarial system, than are the original terms of the Bill. I find it impressive in the amendment that the examination and cross-examination will take place at approximately the same time. In other words, it is not a case of the witness giving evidence, as in the framework set out in the Bill, which is video recorded and is shown; then perhaps months later the witness is taken into court and is cross-examined on the basis of what he or she said in the video recording months before. That is more unsatisfactory than a situation in which evidence is given, cross-examination takes place with the safeguards set out in the amendment moved by the noble Lord, Lord Mottistone, and both are recorded and shown to the jury at the trial. I find the system proposed in the amendment rather more impressive than the original terms of the Bill.
The difficulty is—and it is a genuine difficulty however one looks at the matter—that at some stage cross-examination must take place on the basis of information collated, collected and investigated by instructing solicitors on behalf of the accused. The danger of the amendment as it stands is that if the pre-trial hearing and cross-examination is contemporary with the offence—and many of the speeches this afternoon have made the point that there is a more accurate recollection the nearer it is to the time of the offence—it will be impossible at that stage to conduct a sensible cross-examination.
In the moving case referred to by the noble Lord, Lord Henderson, it would have been quite impossible for a solicitor acting for the accused, who by then had probably only been charged, to cross-examine in anything other than a most perfunctory and non-detailed way.
Lord Mottistone: Of course the hearing should take place as soon as possible after the event—the sooner the better from the child's point of view. However, does not the noble Lord agree that it will be difficult to get people together as quickly as we would like
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within the terms of Amendment No. 82? It is more likely to be three or even four weeks before one can have the judge, both counsel and the hearing arranged than it is to be three days, as one would like. I should have thought that that—although hopefully it would be as soon as possible—must give time for all the bits to come together.
Lord Richard: It may. However, perhaps I may suggest an alternative which the noble Lord may find acceptable. It is clearly right that immediately after the incident a tape recording should be taken of the initial interview with a trained police officer and possibly a social worker present, and that that should be video recorded. In that way there will be an immediate account by the child of what is alleged to have happened.
The pre-trial hearing can take place at a convenient time between the taking of that video recording and the trial, at a time when the defence are in a position, because the investigation has taken place, to cross-examine and make sense of that cross-examination. In effect, the child would have to give two versions, one in the first video of the immediate complaint. In many police stations that is now done automatically. It is not done in the presence of judge or counsel; nobody cross-examines the child; it is merely the complainant telling his or her story in front of a camera. In many cases that becomes admissible evidence. I shall not go into the technicalities of how it becomes admissible but certainly in many cases in which I have been involved that video recording has been shown to the jury.
The pre-trial hearing referred to in the amendments could take place at a convenient time to be agreed with the court, the parties, the police and, indeed, the child or the child's guardian or parents. At that hearing, which is not in secret and which is protective, evidence can be given and cross-examination can take place. If the noble Lord sees that as a sensible way forward I have no problem in supporting the thrust of the amendment.
Lord Hutchinson of Lullington: Perhaps the noble Lord would give way. Does the noble Lord, Lord Richard, mean that the child will give evidence a second time? Is that the implication of what he is saying?
Lord Richard: Yes. I thought I had made that clear. What is important also is that the child will never give evidence in court. After all, I understand that that is what Pigot is designed to avoid: the intention is to spare the child from going into court facing people dressed in funny clothes using language that perhaps he or she does not understand, though I may say that many people do not understand it. The child then is not faced with an atmosphere and ambience which is totally foreign and alien. If we can at the same time protect the child and the rights of the accused as best possible, perhaps we are beginning to square the circle.
Finally, I agree with the noble Earl, Lord Russell. Two principles clearly conflict. One is the right principle, the inevitable desire to protect the child from being put through the ordeal of what is normally

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an adversarial trial. The other is the undoubted rights of an accused person, particularly in the kind of case where sentences and penalties may be high.
I believe that those principles can be reconciled in the way I suggested. If the noble Lord and those who appended their names to the amendment can accept that, I have no difficulty in supporting the amendment.
Earl Ferrers: In moving the amendment my noble friend put his finger upon an extremely important point. The speeches to the amendment indicate how concerned Members of the Committee are to find the correct solution to the problem. I agreed with my noble friend Lady Faithfull when she paid tribute to His Honour Judge Pigot that he produced an enormously helpful report. As my noble friend Lord Renton said, it is breaking new ground. It is important that we do the best we can to get the legislation right, as the noble Lord, Lord Hutchinson, said. He said that whenever he asked children a question he did so in gentle tones. I am sure he did. I have had the privilege of sitting opposite the noble Lord, Lord Hutchinson, for three years and I find his questioning formidable. I wish he would use his child's approach when he asks questions of me in the Chamber.
This is a matter upon which everyone is concerned to reach the right balance. Perhaps I may indicate the Government's view and how we came to the conclusions we have on what is a very vexed question regarding cross-examination. It is an issue which raises a genuine dilemma for all who are anxious to spare the child while preserving the rights of the accused.
There is general agreement that the defence must have the opportunity of testing the evidence. The question posed by the amendment is not whether that should be done but when and how it should take place. My noble friend favours out-of-court cross-examination before the trial begins. He emphasised that children do not remember for very long. Of course that is important. The noble and learned Lord, Lord Ackner, said virtually the same thing when he stated—I paraphrase—that the sooner one gets the matter dealt with the more likely one is to get the facts correct. I am sure that that is so, and it is a substantial reason for video recording the child's evidence immediately.
I understand and entirely share the concern that the child should not be caused any unnecessary suffering or delay. The possibility of delaying treatment or therapy is also often mentioned. I agree that traumatised children must be given appropriate treatment as soon as possible. At the moment that is sometimes delayed because the prosecution is concerned that the child's performance as a witness may be adversely affected by the treatment or that he may be tainted in some way.
I hope that the Committee agree that early video recording should overcome a good deal of that objection. In theory, moving the cross-examination to a preliminary hearing may help. Our view is that the theory tends to fall down in practice if there is any risk of a recall. The point is that, if one does not want
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treatment until after cross-examination, then that treatment must be delayed until any possibility of cross-examination has passed. Recall for cross-examination can happen at any time during the trial proper, even under my noble friend's amendment.
We are all concerned with the need to avoid delays in court proceedings in child abuse cases. The Pigot clauses help a great deal by ruling out the necessity of committal proceedings and imposing a clear duty on the courts regarding avoidance of unnecessary delay. Those concerned with the operation of the criminal courts are fully aware of the problem. However, it should be remembered that some of the delay occurs before the case reaches the court. In the interests of justice, particularly in serious cases, time must be allowed for the case to be prepared properly.
The noble Lord, Lord Hutchinson of Lullington, said that it was unrealistic to expect the defence to be in a position to do the necessary work months before the trial. Of course the noble Lord makes the point far better than I could, that with the best will in the world conducting cross-examination months before the trial is impractical. The danger is that we shall then end up with more recalls and therefore more rather than less stress for the child.
Perhaps I could say a little in regard to my noble friend's point on recalls. The Government's view is that the pre-trial cross-examination makes the child witness more vulnerable to recalls, adjournments and further delays. That is something which the noble Lord, Lord Hutchinson, was worried about. Recalls may be comparatively rare now, but that could well change with the advent of video evidence. It may be that that is why my noble friend tabled Amendment No. 84; namely, that a special device should be inserted to try to limit the recalls taking place. He said that they should take place only if the defence has produced fresh evidence which in the judgment of the court,
"may have a significant bearing on the outcome of the trial".
Therein lies the problem. There can always be an element of doubt as to whether the evidence is or is not new or whether it might or might not have a significant bearing on the outcome of the trial.
We are talking here of the evidence of what is likely to be the principal prosecution witness. Attempts to discourage recalls of that witness would be difficult to defend. I believe that the judge would want to give the benefit of the doubt to the defence where the principal prosecution witness is involved. My noble friend Lord Renton criticised the expression "dealt with" contained in Clause 45, at page 30, line 22. He criticised it on the ground that the Bill should have said "dealt with adequately". That is exactly what "dealt with" means. I do not see how one can deal with a matter without dealing with it adequately.
6 p.m.
Lord Renton: Perhaps I did not make the matter plain enough. It is possible for a matter to be said to be dealt with when it has been merely touched on in a rather cursory way. It is important that the matter should be dealt with adequately.
Earl Ferrers: I had in mind the strictures which my noble friend addressed to me last week. He congratulated the Government and said that he would always do so when they left out words instead of putting them in. That is what the parliamentary draftsman had in mind when he drafted the clause in the way that he did. My advice is that "dealt with" means "dealt with adequately".
My noble friend Lady Faithfull said that children would be too afraid to speak in court. Under the Government's proposals the child's evidence would in almost every case be given by a pre-recorded video. Further evidence would be given by a live video link from another room. In effect, the child should not have to appear in the courtroom itself.
We come to the important point that the amendment may well give rise to trials within trials in order to determine whether the evidence is truly new. The effect of that would be to delay the proceedings further. I do not think that that would be in the interests of the child witness, who would not only suffer from the delay but from the stress of appearing at a whole series of mini-trials. The defence might unfairly exploit the child's confusion at being questioned on several occasions.
The noble and learned Lord, Lord Ackner, referred to the circuit judges' letter of support for this amendment. It is perfectly true that the Council of Her Majesty's Circuit Judges supported the idea of a pre-trial cross-examination system. With respect to the noble and learned Lord and to that distinguished body, that does not represent the view of all Her Majesty's judges. After publication of the Pigot Report we consulted very carefully. Of the six responses from what might be called judicial interests, only one was firmly and unequivocally in favour of the proposal. At least two presiding circuit judges warned that pre-trial cross-examination could end up by duplicating the trial.
My noble friend Lady Faithfull asked whether we could try three trial areas. The short answer is that we could not support the idea of an experimental pre-trial system in three areas of the country because we could not experiment with procedures where the liberty of a man or woman was at stake. We weighed these considerations very carefully indeed. The Government concluded that they could not pursue the idea of pre-trial cross-examination. After very careful consideration we decided that it was better not to have it. In these clauses we propose a regime which should spare the child examination-in-chief, allowing a video to serve instead.
It may well be that the existence of a video which is made admissible in proceedings will lead to a guilty plea and thereby obviate the need for further evidence from the child. If the defence wishes to test a prosecution case which rests mainly on the child's evidence, we see no alternative to cross-examination, albeit with the child out of the courtroom and giving evidence via a television link. That is the view which Her Majesty's Government have taken. I accept that this matter concerns the Committee, and doubtless will continue to do so, in order to get the position right. I appreciate that there are conflicting views on
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the subject. But for the reasons that I have given it is better to try to pursue the course I have suggested and to see how we continue with it.
Lord Mottistone: I am grateful to all Members of the Committee who have spoken who have given immense care to this problem. I agree with the noble Earl, Lord Russell, in one respect only, in that there are two conflicting basic approaches—namely, care for the child and care for justice. However, I do not agree with him in his support of the noble Lord, Lord Hutchinson. I do not want to appear unfair, but the contribution from the noble Lord, Lord Hutchinson, appeared to demonstrate that he had not appreciated the new possibilities of the video approach. Obviously his experience was in the past rather than the present. That view also applies to my noble friends who are also eminent counsel. They were talking in the past rather than in the future.
As my noble friend the Minister said, we are cutting fresh ground. He said that we are making some move on the Bill as it stands now and that we should try that out and return for further legislation if we need to improve it. There is a great deal to be said for that. However, it misses one terribly important point which my noble friend Lady Faithfull made so well. I also quoted the views of the President of the Royal College of Psychiatrists. In order to get the best justice, one wants the newest evidence from the child. One has the immediate recording which the noble Lord, Lord Richard, spoke about. That is equivalent to the recommendation made to us all by the noble and learned Lord, Lord Ackner; namely, that when we are involved in any kind of accident we should write down the details quickly before we have forgotten. I am not saying that as a joke. That goes some way towards getting the child's view.
My friends in the NSPCC would say that that is all very well, but over a longer period, particularly if one wishes to have other persons asking questions, one finds that something on the lines of this specially structured pre-trial service will bring out a better chance of accurate evidence from the child than if one relies purely on producing a first recording in court some months later. What we are after, and what the noble Earl, Lord Russell, said we must not forget, is that we must have justice in the sense that the accused has presented against him the most accurate information that we can arrive at. The best solution is that put forward by the noble Lord, Lord Richard. He said that we should use the immediate recording, but with the specially structured pre-trial procedure.
What I found disappointing in my noble friend's reply was his view that it would not be right to have, as my noble friend Lady Faithfull suggested, two or three experiments in regard to this process. Perhaps he would care to think again about that. I concede that it is all very well to say, "We will have an experiment in area X". However, it may then be discovered that there are no particularly relevant cases in area X but that there are some in area Z in another part of the country. Therefore I can see that there are difficulties. However, I should like my noble friend to give further thought to having an experiment on the lines of what

55
I call the Richard solution. We could then get some sort of a measure without having to wait for years before there is another Criminal Justice Bill.
My noble friend may say that experiments are not fair to the accused or are not fair to the conduct of good justice, or whatever was the phrase that he used. I recall that only recently certain magistrates' benches were invited to conduct trials with regard to traffic offences. I forget the detail and I have not had time to look it up. Trials are conducted in the magistrates' courts. I should be very surprised if the Crown Courts do not carry out experiments too. If they have not done so, perhaps there is a first time for everything. We are doing something new.
It was heartening that the noble and learned Lord, Lord Ackner, with all his experience, was so strongly behind not only the Pigot Report, which again came from a very experienced judicial background, but also my amendment. That was to me most encouraging. I certainly do not think that my noble friend the Minister can come to a conclusion at this stage of the game. In the weeks before Report stage I shall certainly read with immense care all that has been said, including what the noble Lord, Lord Hutchinson, has said, with a view to seeing whether I can come back with something which is an improvement on these amendments.
I hope, however, that my noble friend the Minister might direct his thoughts to a possible change—indeed he might come forward with an amendment rather on the lines that I suggest—and give very serious consideration somehow to arranging trials of what I call the Richard solution; that is, of having immediate evidence recorded under the care of an experienced practitioner or a policeman, with the subsequent pre-trial hearing on the lines suggested in my Amendment No. 72 and Amendments Nos. 73 and 74 as far as they are relevant. That would be very helpful. Perhaps my noble friend can give me some hope that he may think that my proposal is worth looking at.
Lord Renton: Before my noble friend on the Front Bench replies to that invitation, perhaps I may make so bold as to say that the crux of the matter is that examination-in-chief and cross-examination should not be separated by a long distance of time.
6.15 p.m.
Earl Ferrers: My noble friend has asked me whether I will consider the point that he made. Of course I shall. I shall consider most carefully all that has been said in the debate. The noble Earl, Lord Russell, suggested a round-table discussion before Report. I am happy to meet the wishes of the Committee if I can help over this in any way. We must try to get this as right as possible, and there are different views on it. If any noble Lord wishes to come to see me and discuss it with those of my officials who are far more experienced than I am in the technicalities of the issues, I should be delighted for that to happen. I cannot give a guarantee that as a result everything will be different. However, I undertake to consider
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everything that has been said and everything that anyone cares to say to me about this. We want to get it right. It is breaking new ground.
My noble friend Lord Mottistone paraphrased by saying that we were taking a small step and leaving other measures until later. I would not wish him to underestimate what we are doing in this Bill. It is not just a tentative step forward; it is a set of very major reforms indeed. They sweep away barriers to children giving evidence; they ensure that video evidence can be admitted; they ban cross-examination in person by the accused; and they speed up the whole process by bypassing committal proceedings. These are enormous steps forward. If noble Lords wish to discuss this matter with me between now and Report stage I shall of course be happy to do so.
Lord Campbell of Alloway: Perhaps I may try to make a constructive suggestion. We are concerned with a new area and with an area of new procedures which will have to be tried and which will be a matter of experiment. Would it be a solution provisionally, so to speak, to take the Bill as it stands but to enact an enabling provision for the Lord Chancellor and the Lord Chief Justice to produce procedural rules for this particular type of case? In other words, they could, as a matter of discretion, be operated, tried in various areas for a limited period of time and withdrawn. I put the suggestion forward as perhaps a way through which could, by experiment, produce the right answer. If the right answer be the approach of the noble Lord, Lord Richard, so be it.
Lord Hutchinson of Lullington: We must be careful about carrying out experiments when people are charged with criminal offences. There might be a problem in the Court of Appeal. Someone might say "There was an experiment in my case: I did not get proper justice".
Lord Richard: The noble Lord is quite right about blanket experiments. One should not experiment in cases where a person's life or liberty is involved. On the other hand, if the accused consented to this procedure then I see no reason at all why it should not be tried. Again, there is no reason at all why defendants who are going to be faced with this offence should not be given the choice of whether they wish to be tried in accordance with the new procedure or in accordance with the procedure in the Bill. I do not think that that is insuperable.
Lord Campbell of Alloway: I was not suggesting that it should be proposed without assent. I took it rather shortly, but I accept that.
Earl Russell: What the noble Lord, Lord Campbell of Alloway, proposes sounds remarkably like a Henry VIII clause, allowing the Minister to vary primary legislation by regulation. We ought to view that with some misgiving.
Earl Ferrers: I do not know quite whom one will satisfy or not in reply to those observations. I am most grateful to the noble Lord, Lord Hutchinson, for already using his childlike approach to questioning when he suggests that I should be very careful about

57
accepting such advice. Of course I shall be careful. I think it would be the best thing if we considered all the matters that have been mentioned this afternoon. The offer that I have given remains. If any noble Lord wishes to come to see me about a particular point—I suggest it is not the whole Committee, because that would make the object rather purposeless—I am there to help.
Lord Mottistone: I thank all those who have conducted what is the second debate on the subject. I thank my noble friend for considering the matter further. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 83 and 84 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 85:
Page 30, line 47, at end insert:
("()Where an application is made under—

(a) section 32(1) above; or

(b) section 42(2) of the Criminal Justice Act 1991

and leave is refused, the court shall record in writing the reasons for such an opinion.").
The noble Lord said: A similar amendment to the one now before the Committee was moved in another place. However, I understand that it was resisted by the Government in that place on the basis that judges do not have to record the reasons for refusing to allow the use of a live television link. My amendment therefore seeks to cover that point.
The insertion of this subsection would require courts to record in writing the reasons for the inadmissibility of all or part of a video recording or the reasons for refusing to give leave to use the live TV link. The effect and benefits of such a requirement would include the ability to use the body of information collected in that way to review and improve standards and practice and would help to ensure that the number being rejected remains small. It would also assist the Secretary of State to perform his proposed duty to carry out regular reviews and make recommendations for improvement in the use of video technology. The amendment would be of long-term benefit in the development and appropriate use of pre-recorded video technology, and the use of a live television link.
Although judges do not have to record the reasons for refusing to allow the use of a live television link—the argument put forward by the Government in another place—I understand that judges do have to record their opinions in other circumstances, such as refusal to give bail under the Bail Act 1976. That has the effect of focusing the court's mind. Given the radical and innovatory nature of Part III of the Bill, similar provision would be most useful. I have received support for the amendment from the president of the Royal College of Psychiatrists. I have also received other support for it, but I shall not trouble the Committee with such details. I beg to move.
Lord Hailsham of Saint Marylebone: Given the following facts, I wonder whether this amendment is really necessary. Before an application is made to the court on the trial or on any judicial proceeding,
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argument must be heard from both sides. I believe that a shorthand note is taken of such an application in all courts. Under the wording of the amendment, the court is expected to give reasons which would then be recorded. Therefore, I wonder what it would add to the existing procedures.
Earl Ferrers: The Government have considered very carefully the suggestion that the courts should be required to give reasons, and in writing, for excluding a videotaped interview submitted under Clause 45. Our view is, as it was with the power to refuse an application for a live television link, that it is not necessary to require a formal record by statute and that such a requirement is not justified.
Our reasons are these. First, judges and magistrates already give reasons for their decisions when they believe that it would be helpful. They do not need to be told to do so. But, in the case of Clause 45, the Bill makes it clear that video evidence should be allowed unless it is contrary to the interests of justice. Such decisions will need to be taken looking at the case in the round. We do not require written explanations from the courts in the many other circumstances where they are required to consider granting leave for a particular facility. I do not believe that we could justify including an exceptional requirement for a formal record here.
The Government appreciate the need to keep new provisions under review. In the case of live television links, we have been monitoring carefully the impact of the new provisions and, although the review is not yet complete, we are aware that it has been rare—indeed, very rare—to date for the courts to refuse an application. Moreover, if it were refused the reasons do not have to be given. Therefore, I suggest it is reasonable that the same should apply in these circumstances.
I can assure my noble friend that we shall be monitoring equally closely the new provisions under Clause 45. However, I do not think it would be helpful to impose a rigid rule on the courts in the context of either Act.
Lord Mottistone: I thank my noble friend for that reply. As regards the point made by my noble and learned friend Lord Hailsham, I believe the recordings that are made on television links are rather different from the ordinary records of court proceedings. In fact, they reveal much more and one can learn a great deal more from them as regards how best to use the television facility.
However, I note what my noble friend said. I do not intend to press the amendment to a Division at this stage. I shall, however, read carefully my noble friend's response and, if I feel that anything more needs to be done, I reserve the right to return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 86:
After Clause 45, insert the following new clause:
("Questions by a third party for child witnesses
—(1) At a pre-trial hearing and any subsequent hearing where the child witness—

(i) is very young,

(ii) has professionally diagnosed communication or learning difficulties, or

(iii) has been professionally assessed as having emotional and behavioural difficulties,

questions from the parties may, with the leave of the court, be relayed through such an appropriate third party as is laid down in the Code of Practice, and
(2) No person other than the third party shall be in the room with, or visible to, the child witness.").
The noble Lord said: As the heading to the proposed new clause states, this amendment deals with:
"Questions by a third party for child witnesses".
It leads into another amendment which is tabled in my name which seeks to achieve a code of practice. However, I do not wish to discuss that aspect at present.
A majority of the Advisory Group on Video Evidence recommended that the trial judge should be able to make special arrangements for the examination of very young or disturbed children at a pre-trial hearing where appropriate. It was proposed that the judge's discretion should extend where necessary to:
"allowing the relaying of questions from counsel through a paediatrician, child psychiatrist, social worker or person who enjoys the child's confidence. In these circumstances nobody except for the trusted party would be visible to the child, although everyone with an interest would be able to communicate, indirectly, through the interlocutor".
The amendment seeks to enact those recommendations and to extend them to children who have professionally diagnosed communication or learning difficulties which may make it particularly difficult for them to communicate effectively with unfamiliar adults. One example of the latter category of child witness would be children with certain forms of autism which make communication with strangers, or in front of numbers of people, difficult.
Professionals working with children who have learning or communication difficulties are increasingly expressing concern about the particular vulnerability of such children to abuse of all kinds. Adults who abuse children may particularly target those with communication difficulties precisely because of the problems that they often have in informing others about the abuse. Such children may have particular difficulties in giving evidence, but in many cases those difficulties could be overcome by the type of provision that this amendment seeks to allow.
Many children who are able to give a coherent account of events in the presence of a trusted adult are unable to do so in the presence of strangers. If enacted, the proposed new clause would enable the evidence of such children to be heard while enabling cross-examination to take place. Its provisions would be used in specific and exceptional circumstances.
Once again, I have received support for the amendment from the Royal College of Psychiatrists. The college tells me that in other countries it has sometimes proved useful for questions to be put to a child by a third party. The third party would usually
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be a professional with specific expertise in communicating with children. Sometimes this has helped the cause of justice.
Very disturbed or young children might be able to provide information to the court through this means. Very rarely do we envisage this method being deemed as appropriate by the courts. However, Amendment No. 86 allows this to happen in exceptional cases. I beg to move.
6.30 p.m.
Lord Hutchinson of Lullington: Perhaps the noble Lord, Lord Mottistone, will allow me to say two or three words about the amendment. My experience is of course in the past. The trouble with many of the geriatrics in this place, among whom I must count myself, is that is inevitably so. I agree that I am progressively unqualified to participate in debates on current affairs. That criticism goes home.
I agree with subsection (1) (ii); but subparagraph (i) which refers to "is very young", and subparagraph (iii) which mentions behavioural difficulties, are extremely broad provisions and they make it difficult to make a decision. The accused person is faced not merely with a video taken in his absence as evidence against him, which is unique in the whole criminal process, he then has to cross-examine indirectly through a television link, and it is now suggested that he should cross-examine through a third party through a television link. The matter is becoming absurd except in exceptional circumstances. I presume that the question will be put to the absent witness through a television link, will be repeated by the third party, and then the answer will go to the third party and return through the television link. That form of cross-examination will be a little difficult.
Lord Mottistone: I believe the noble Lord had the linkage wrong. The question would be put to the third party (the special person) who would repeat it to the child and seek to obtain from the child the information required. There are various methods of doing that. It may not necessarily be a straight question. We are dealing with a child who is hampered in some way or who is very young.
When the child starts to answer, all the other parties to the investigation will see everything on the television screen. The information does not come to them through the special person. If the job is done properly, the parties will see the child responding. That is important. It means that those parties are obtaining the information. The third-party function is interpreting the question to the child. The child gives the information by demonstrating or by what he is trying to say. If the child is very young it may not be able to speak clearly. That is the picture.
Lady Kinloss: I support the amendment. It is an important one for children who are professionally diagnosed as having communication or learning difficulties. For example, as the noble Lord said, as in the case of autistic children who can give a coherent account of events in the presence of a trusted adult but

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who have difficulty with anyone they do not know. If the child is unable to give evidence, that is not justice to the child or the defendant.
Lord Richard: I listened with care to what the noble Lord, Lord Hutchinson said. It is difficult to cross-examine in the way that he described. It is done through interpreters when there are people who do not speak the language. One asks the question. It is interpreted to the witness. The witness replies in the foreign language and that is interpreted to the questioner. It is a long and painful process. As I understand the substance of the amendment—not the drafting—that is the procedure that the noble Lord, Lord Mottistone, has in mind. In other words, where a chi Id cannot express himself properly or has professionally diagnosed communication or learning difficulties, one would in effect have an interpreter between the cross-examiner and the child. To protect the child, the only person in the room is the professional interpreter. If I understand the amendment correctly, it would seem to be sensible rather than cataclysmic.
Baroness Faithfull: There is another example. A deaf c communicates with someone who can make signs to him. It is therefore essential to have a communicator.
Lord Macaulay of Bragar: Perhaps I may ask the noble Lord, Lord Mottistone, what is his definition of "very young" and "behavioural difficulties". How will they be assessed at the hearing? Is "very young" four and younger? Does "behavioural difficulties" mean that a child does not behave at home? The clause is vague and will create great difficulties. Until now, judges have always had discretion to decide whether a child is old enough to give evidence in court.
Lord Mottistone: We saw the provision as one that might be introduced where relevant. "Very young" is difficult to define. Some children are "younger than others" regardless of their chronological age. It is difficult to give a figure and to say that all children under three or four are "very young". Some four year-olds might justify the description and some two year-olds might not. I am exaggerating the point because I hope that all children who needed such help would receive it. I hope we shall find a way of doing so. "Behavioural difficulties" are defined in other legislation. I shall look at the points the noble Lord has mentioned if we go further with another amendment on similar lines.
Earl Ferrers: I am grateful to my noble friend for explaining how the amendment would work. The noble Lord, Lord Richard, said that there is no difficulty about using interpreters in our courts. He is right. Interpreters are already an established feature of our criminal procedure and no change in the law is needed to allow them to be used where there are severe communication difficulties. Specialists have also been used in court to assist with deaf and dumb children. The Government are unaware of any cases involving autistic children but if a child has communication difficulties, putting him or her in much the same
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position as a deaf and dumb child, and special arrangements are requested to assist with the giving of evidence, we see no reason in principle why that request should be turned down.
I agree with the noble Lord, Lord Hutchinson, that we are dealing here with something different and something more than interpretation. I believe cross-examination works best as a dialogue between two people. The point of it can be completely lost if that element of spontaneity is forfeited. There is also the risk that a third party, however well-intentioned, could ask questions in a way which is prejudicial to the conduct of the case, or he may misunderstand what he is asked to do. The child's interest would not be served in any way by that.
The Government sympathise with the sentiments behind the clause, but there are two points which must be borne in mind. First, a child may well become confused by the fact that someone whom he or she saw as a friend begins to ask difficult and probing questions. That could have counter-productive effects. Secondly, it is increasingly recognised that a good rapport with a child is vital to the successful conduct of a case. An advocate who does not achieve that runs the risk of presenting a bad case. I believe that advocates are increasingly paying attention to that factor.
We are making it much easier for children to give their evidence and where cross-examination does occur, that will be able to be carried out from outside the courtroom by live TV link, distanced from the advocate and with a companion with the child. I see no reason why application should not be made for this companion to be a professional if that would put the child more at ease.
There are assumptions behind the drafting of the clause on which I should also make one or two comments. The first is that it refers to pre-trial hearings. The Committee will realise from our discussion on an earlier amendment that we have difficulty in agreeing with the suggestion. Secondly, the clause seeks to establish a statutory function for a specialist interlocutor in what we intend to be a non-statutory code of practice. Those are significant problems for the proposed new clause. I should be grateful if my noble friend could consider that.
Lord Harris of Greenwich: I confess that, for some of the reasons given by the noble Earl, Lord Ferrers, I am not filled with enthusiasm for the amendment. With great respect to the noble Lord, Lord Richard, I do not believe that there is an analogy with the interpreter. The latter is interpreting in a different language the precise terms of a question put by counsel. The third party will, almost by definition, not be doing that in normal circumstances. One could easily find oneself in a situation where leading questions were being put, or where the defence would argue before the Court of Appeal that the full question it wanted put to the child had not been put effectively and efficiently by the third party.
Perhaps we should bear in mind that at the end of some trials, given a charge of particular seriousness, a man may be at risk of being sent to prison for life.

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That is not inconceivable. It is essential that one should have procedures which are defensible. I believe that the amendment goes too far.
Lord Mottistone: The noble Lords, Lord Harris, and Lord Hutchinson, and another Member of the Committee questioned the expertise of the third party in the case of Amendment No. 86. The Committee will note that it relates to an appropriate third party as laid down in the code of practice. I hope that the code of practice would be on the lines of my Amendment No. 88. It would make sure that the third parties were specially trained people who knew what was required of them. They would not necessarily ask the wrong questions. They would be there to elicit the truth which would be the highlight for them.
I take the points that my noble friend the Minister made. There is room for improvement of the wording, particularly in view of our debate. I feel certain that I shall wish to come back to this at the next stage of the Bill. However, at this moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Lord Richard Lord Richard moved Amendment No. 86A:
After Clause 45, insert the following new clause:
("Code of practice for children's evidence
The Secretary of State shall issue a code of practice in connection with—

(a) evidence given by children; and

(b) video recordings of testimony from child witnesses; and

(c) cross-examination of child witnesses

and any other such matters as he considers appropriate.").
The noble Lord said: The purpose of this amendment is to require the Secretary of State to issue a code of practice which would regulate the making and the use of pre-recorded video evidence in criminal proceedings. The code would provide authoritative guidance about how it could achieve good and consistently high standards in the making of videos to be used as evidence in the courtroom. It would also seek to establish a uniform approach to such evidence by the judiciary and other responsible agencies.
The code of practice should be based on principles which achieve two things: they must guarantee the rights of the accused and at the same time safeguard the welfare of the child. The drawing up of a code of practice regulating this area of work is particularly important since it would minimise the number of problem areas that are bound to arise in the process of implementing such a new and innovative piece of legislation.
There are a number of matters on which the code could give clear guidance: for example, location. It could give directions on the most appropriate venue and the kind of environment within which the recordings should be made. It could give guidance on timing, which we discussed upon a previous amendment. Some of the issues we discussed earlier are very much a matter of timing. The code could detail when a recording should be made. It could be at the point of disclosure, immediately before the court case or at some other time. The code could determine
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who could or should be present during the recording of an interview and whether the child might be accompanied by a relative or friend. It could also deal with matters such as whether the child might be accompanied by anyone else. It could also deal with matters such as we discussed on the previous amendment.
Other amendments down are linked to this one, particularly Amendment No. 88. Again, it refers to matters which should be set out in the code of practice. The difference between Amendment No. 86A and Amendment No. 88 is that the latter relates to a voluntary code of conduct and the former to a code issued by the Secretary of State.
Everyone said this evening that we were moving into new territory or somewhat uncharted waters. If so, it is right that a code of practice regulating these matters should be statutory. It should be clear from the outset what we are trying to cover. I beg to move.
Lord Mottistone: Perhaps I may speak to Amendment No. 88 now, as it is linked with Amendment No. 86A. I appreciate that the introduction to Amendment No. 88 is not so good as that of Amendment No. 86A. The Committee will notice that it presupposes that the Secretary of State will be concerned with the matter, because the last line reads:
"and any matter felt appropriate by the Secretary of State".
I apologise to the Committee if our amendment is not quite right. I entirely agree with the noble Lord, Lord Richard, that we should prefer to have a statutory code of practice. It is important. As the noble Lord, Lord Harris, said in relation to my previous amendment, we do not want hearsay evidence and mistakes in cross examination because the person helping the child is inexperienced. It is better to have a statutory code of practice than a non-statutory one, which I believe the Government favoured when the Bill was in another place. Then we can be sure that the legal side of the duties is properly tied up. I therefore hope that my noble friend the Minister will give a sympathetic hearing to a code of practice on the lines of either Amendment No. 86A or Amendment No. 88 or the two together.
Baroness Faithfull: I speak on behalf of those who have to deal with this work at grass roots: the police, social workers, teachers and the health organisations. The position is much clearer if these matters are specified, with a code of practice on the face of the Bill and not in regulations. I am afraid that, in reality, when dealing with such cases one looks at the Bill but very often one forgets or cannot find regulations. I support the amendment: the code of practice should be on the face of the Bill.
Lady Kinloss: When the Minister replies, perhaps he will say who will be responsible for the storage and disposal of video recorded interviews. Should that not be included in the code of practice?
Earl Ferrers: Judge Pigot's committee recommended that there should be a code of practice for the conduct of video-recorded interviews with child witnesses. It gave three reasons: first, in order to

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protect the welfare of those witnesses; secondly, in order to protect the rights of the accused; thirdly, in order to give guidance about best practice. The need for such guidance is unquestionable.
Under our proposals, the rules of court would require a person who wishes to tender a video recording in evidence to give full details of all the various circumstances in which the recording was made. These should include: the date, the time and the location of any interview, as well as all the persons who were present with the child during the interview. We intend that those rules should be supported by a code of practice on how video recordings should be made.
I fully appreciate the importance which the noble Lord, Lord Richard, and my noble friend place on a code of practice. My noble friend asked whether I would give the idea a sympathetic hearing; I can do so. I assure the Committee that it is definitely our intention to publish a code of practice. It will be drawn up after wide consultation with all the various agencies, with the voluntary bodies and with experts. We have already started the spadework for it. We have engaged two specialist advisers who are eminent academics, who are qualified respectively in psychology and the law, to produce a first draft as a basis for the necessary consultation and discussions. We are determined that the draft should take account of and as far as possible reconcile both legal and child welfare considerations, as well as contain advice on functional, technical and equipment issues.
The scope of the code will need to be wide. It will no doubt cover all the issues which are identified in the second of the clauses which we are considering. However, we must take care not to confuse practice with law. For example, we must not pretend that the code can determine how the law of evidence is applied, which is clearly the province of the courts.
I appreciate the noble Lord's concern that special care should be taken by counsel with the cross-examination of children of tender years, but I also think it is a matter primarily for the legal profession. I know the profession is aware of the problem and is giving serious and careful consideration to all the implications for cross-examination techniques. That is one of the messages from research on the use of live television links.
I understand the intention behind these new clauses, and I agree with a great deal of what has been said about the importance of the code and the need to get it right, but I question whether it would be particularly helpful to prescribe the areas to be covered by the code of practice before the consultation process has even begun.
The noble Lady, Lady Kinloss, asked who was responsible for the disposal or the storage of videos. I agree that this is an important and difficult area, and I can confirm that the code of practice will offer detailed advice on the storage and the destruction of tapes.
Lord Harris of Greenwich: Concerning the speech of the noble Earl, I was not quite clear what damage would be done if in fact the amendment were to be carried? One of the most fundamental arguments put
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for the amendment was that put by the noble Baroness, Lady Faithfull. There will have to be a major training exercise for all those who will be concerned, be they social workers or police officers. They are going to have a highly sensitive job to do, and in the context of that situation it is infinitely preferable to have a statutory code.
Perhaps I may cite a particular problem area which has arisen in the past and which could arise in the future. A major criminal investigation took place outside London which led to a very fierce dispute between the police and social workers. As far as the police were concerned, the complaint was that some of the social workers had, for the most admirable of reasons, discussed with the children concerned the circumstances of what could be described as the criminal complaint, so that by the time the children had been seen by the police they were saying different things from what they otherwise would have done.
Given some of the past discussions we have had on this series of issues, it seems to me to be critically important that such matters be dealt with adequately in a code of conduct. Otherwise, there is a real risk that some cases will go badly wrong and that groups of people in different disciplines, who are motivated by nothing but the most admirable sentiments, will become extremely cross with one another.
We have already seen a number of cases in recent months and years where there have been great difficulties in this area. For that reason, if not for some of the others, it seems that the appropriate way of dealing with the matter would be by means of a statutory code. Given the fact that the noble Earl was good enough to say, about an hour ago, that he was prepared to listen to arguments on the previous matters we discussed, I hope that he will keep an open mind on this question. We are all trying to reach the same objective, and I believe there is a rather stronger argument for this statutory code than has been admitted by the noble Earl in the speech that he has delivered.
Earl Ferrers: Because I said that I would listen to what Members of the Committee said concerning a previous amendment, I did not mean to imply that I would therefore have a closed mind on all the subsequent amendments. Of course I shall consider what has been said. Surprisingly, the noble Lord, Lord Harris, does not seem to have got the point, which is, if I may say so, unusual for him, but perhaps I misunderstood him.
If we accept either of these two amendments, all this says is that there shall be a code of practice. What is put in the code of practice is a matter for consideration, a matter for discussion, and something which will have to be investigated. Indeed, if the amendment of my noble friend, Lord Mottistone, were accepted, all this says is that the issues are to be covered by a code of practice. It does not say what the code of practice itself should say. Therefore, if the concern of the noble Lord, Lord Harris, is really a concern as to what the content of the code of practice would be, that would not be covered by the amendment.

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I have given an undertaking that it is our intention to provide a code of practice. I have also said that most of the points of my noble friend's amendment would be taken into account in that code of practice. That being so, I do not see that we advance the cause very much by saying that there shall be a code of practice when there is going to be one in any event. What really matters is what goes into the code of practice. That is what we are discussing with all the interested parties at present.
Lord Harris of Greenwich: The only point I was making to the noble Earl, who normally grasps these points with considerable speed but unhappily does not appear to have done so on this occasion, is that there is a big difference, if he will forgive me for saying so, between a statutory code and a non-statutory code. We are now talking about a statutory code, and the last clause of the amendment gives the Secretary of State power to deal within a code of practice with such other matters as he considers appropriate.
It seems to me for the reasons I indicated—I do not want to go into the arguments again—that that is the best method of approach. I very much hope that on reflection the Government will agree.
Lord Richard: In view of the statement by the noble Earl that he is prepared to look at this matter and consider what has been said about it, and that a code of conduct is on the way in any case, and for all sorts of other attractive reasons as to why we should not pursue this matter further tonight, with your Lordships' permission I withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay: Perhaps this might be a convenient moment to break. I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee meet again at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Foreign Corporations Bill [H.L.]
6.48 p.m.
The Lord Advocate (Lord Fraser of Carmyllie): My Lords, I beg to move that this Bill be now read a second time.
This is a short, straightforward Bill which seeks to deal with a problem in the international commercial field. The matters at issue are ones of private international law, which deals with ordinary legal relationships involving different legal systems. The problem is that these matters have, quite unnecessarily, been linked with public international law, which deals with relationships between states. In particular, this has affected the law relating to foreign corporations. The object of the Bill is to sever those two matters and to give primacy to commercial reality where the question at issue is one of commercial law.
There are indications that the courts are prepared to adopt a realistic attitude and to look not at whether a territory is a recognised state but at what actually
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happens in the territory and at the law that is in fact applied there. As an example I might mention the comments of the noble and learned Lord, Lord Wilberforce, in a case involving the optical instrument manufacturers Carl Zeiss. The opposing view has been that a foreign corporation has no legal personality under our laws unless it is incorporated under the laws of a territory which the United Kingdom recognises as a state. If the Government do not recognise the state, it is argued, the law should not recognise the corporation. That is not a view that the Government share.
Whichever view is the better as a matter of policy the law cannot be said to be certain, and some doubts and problems have recently been raised on behalf of City interests and institutions. This Bill will dispel the aura of doubt that has appeared. The Bill will enable the legal capacity of foreign corporations incorporated under the laws of territories which the United Kingdom does not recognise as states to be accepted in this country. The question which the courts and others will have to consider is whether there is a corporation established by laws which are recognised by the courts of a settled legal system in the territory in question.
I stress that the Bill does not affect by one iota the Government's policy on the recognition of states, still less their policies in relation to particular cases. It is a Bill dealing with private international law, not with foreign relations. We shall continue to recognise states in accordance with common international doctrine; at the same time, like many other countries, we do not accord recognition to governments. We believe that where questions arise as to the law governing the incorporation of commercial bodies, they should be for the courts to answer, looking at any relevant evidence as to that law. They should not be treated as matters which are to be decided by reference to the Government's foreign policy. The Bill leaves commercial law to the courts and to businessmen and their legal advisers.
As I have said, this is a straightforward Bill. It provides a pointer for the courts and others to follow and enables them to work out the consequences of adopting this approach. Clause 1(1) applies where a question arises whether a corporation incorporated under the laws of a territory which is not a recognised state should be regarded as having legal personality in the United Kingdom. It provides that if the laws of that territory are applied by a settled court system there, that question, together with other material questions, is to be determined without regard to whether the territory is or is not a recognised state. That does not of course accord any sort of recognition to the non-state; all that the clause does is to ask the courts to approach questions relating to the status of corporations from non-states in the same way, whether or not the corporation comes from a recognised state.
It is a requirement of the Bill that there must be a settled court system in the non-state concerned. The corollary of that requirement is that there may be transitional situations in which the law cannot provide a simple solution. There may be a case, for example,

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where part of a state is seeking to break away from the rest of the state; until it has clearly succeeded and, as a sign of its stability, has a settled court system, or has clearly failed, so that the structures of the original state are re-established, one cannot be sure what laws apply. The Bill does not attempt to solve that problem. Nor does it attempt to deal with the case of two factions fighting for power within a state.
Because subsection (1) uses the case of a recognised state as a point of reference, subsection (2) defines that phrase. It also deals with the territories of recognised federal states which would fall within subsection (1) if no other provision were made. However, our existing law on the recognition of companies incorporated under the laws of, say, California, is settled and needs no amendment, and it is unnecessary for subsection (1) to include federal states.
Subsection (2) also defines the material questions referred to in subsection (1) so as to include questions such as the capacity of a company to enter into a particular transaction and the powers of its directors, which are governed in whole or in part by the law of the territory of its incorporation. The Bill will enable our courts to answer such questions, as well as the basic question of the corporation's existence, in the same way as they would have done had the corporation come from a recognised state.
Subsection (3) validates acts, including acts of registration, which have been undertaken on the basis that a corporation from a non-state had legal personality under our law. To that extent the Bill has retrospective effect. We always take great care whenever the matter of retrospection arises to ensure that retrospectivity can be justified and goes no further than is needed. I believe that your Lordships can be so satisfied in this case. The retrospective element is directed, first, at those corporate bodies which may have entered into or incurred legal obligations and may subsequently seek to maintain that those obligations do not bind them because at the time they had no legal personality as corporations under the laws or the United Kingdom. Secondly, it will remove the risk that those who have dealt with such corporate bodies in apparent good faith may claim that such bodies had no legal personality in the eyes of our law and that therefore obligations entered into with them need not be honoured.
There is no significant difference between the laws of the various parts of the United Kingdom in this area, a id the Bill is to apply to Scotland and Northern Ireland as well as to England and Wales.
Your Lordships may wish to know that we are not the only country in which the question of corporations from non-states has arisen. The Australians have also felt the need recently to enact legislation similar to this Bill.
The Bill clarifies the law on the status of foreign corporations and does so in such a way as to reflect commercial realities. The Bill does not affect our policy on the recognition of states. What it will do, I believe, is reassure and encourage companies in the commercial and financial world. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Fraser of Carmyllie.)
7.7 p.m.
Lord Mishcon: My Lords, the House will be grateful to the noble and learned Lord the Lord Advocate for explaining the purpose of this little Bill. As he said very clearly, there is a difficulty at the moment. The difficulty concerns the recognition of the legal personality of foreign corporations incorporated under the laws of territories which are not recognised as states by the United Kingdom.
The noble and learned Lord is correct in saying that at present the law is flexible and doubtful. He said that, at the request of some of our corporations and institutions, he aims to see that there is certainty and that when they enter into a contract with a foreign state not recognised as such by us those corporations know which court has jurisdiction if anything goes wrong and that our courts would have jurisdiction. That is very acceptable. From these Benches I recognise that. We should all like to know, only so that it is on the record, what type of corporations and institutions have made representations to the Government in that respect.
My only complaint about the Bill is that as I see it, and until the noble and learned Lord convinces me otherwise, we are not giving that certainty which those corporations are seeking and which our own High Court, and especially our commercial court, which is a forum that is respected in the world for deciding commercial disputes, would want.
I turn immediately to the wording of the Bill. I have given notice to the noble and learned Lord of the points that I shall raise. One finds in Clause 1(1) (b) of the Bill that the pertinent point is that:
"it appears that the laws of the territory in question are at that time applied by a settled court system in that territory".
I looked for a definition of a settled court system. One can have a settled court system in the sense that the court system has been in existence for a great many years. However, particularly in the case of a state not recognised as such by this country, there is a risk that a settled court system which has been in existence for many years may be a most unacceptable, cruel and unjust court system. Where is the certainty that our commercial corporations will receive? Where is the certainty in regard to what the court would have to decide in the light of the Bill? Would the court have jurisdiction under the Bill? Would it have the duty to decide not just that it is a settled court system, but that it is a just, proper and honourable court system in regard to its laws relating to corporation and commercial matters generally?
As I see it at the moment from the wording of the Bill, the court and corporations will not know. Therefore, the question of certainty seems to me at first sight not to be dealt with. We have retained the flexibility and uncertainty which, at the outset of his remarks, the noble and learned Lord said was the one thing that he wanted to avoid.
My next point is almost the same one that I raised in regard to the rest of the wording in Clause 1(1) (b). The Bill states that the

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"question and any other material question relating to the body shall be determined (and account shall be taken of those laws) as if that territory were a recognised State".
Where is the certainty about that? It is not that we shall be guided by what those laws say about a corporation, its formation, identity or nature. The Bill states—I use the words again—in a rather unclear and flexible manner that our courts will have to take account of those laws which exist in the unrecognised state, not that they will be bound by them. To what extent has the court to take that into account? What points must guide our courts in taking those matters into account?
It may be thought that these are Committee rather than Second Reading points, but it is always advisable to give the Government notice at Second Reading of what essential Committee points there may be. My questions go further than that. They hit at the purpose of the Bill. I hope that our Foreign Office will not have difficulty in regard to those matters; namely, that it will be thought that, if our courts recognise a foreign state which our Foreign Office does not, we are placing the Foreign Office in some difficulty. However, assuming that that does not cause our Foreign Office and Parliament any difficulty in the future, I see merit in the purpose of the Bill. But there is not merit in it if it does not cure the very malady that it is meant to cure, as was outlined by the noble and learned Lord.
7.12 p.m.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Lord for a number of points. I am grateful for the agreement that he has signalled from the Opposition Front Bench as to the purpose of the Bill. Perhaps I may also thank him for giving me notice, in his customary way, of the points that he mentioned.
The noble Lord started by asking me by whom was request made for some change in the law here. It is essentially a matter of general concern to a number of leading commercial firms of solicitors in the City who have the responsibility on behalf of their clients to conclude contracts with a wide range of corporations from different parts of the world. It was in that context that there had been some doubt—I do not want to overstate it—that such corporations were not properly to be recognised. The doubt therefore came from the legal world rather than from any corporation indicating that it was uncertain of its status.
The noble Lord is correct in saying that the Bill cannot wholly eliminate the uncertainty that exists at the moment. We are concerned with those territories which are not recognised as a state in themselves. We have taken the view that the way that the matter requires to be approached is to look at a territory and see whether it has a settled legal system which can and does apply laws. It seems to me—I do not see that there is any way out of this—that that will have to be a matter for the British court dealing with the matter to decide whether there is such a settled court system in that territory. The matter can be approached only on that basis.
However, once the court has determined that a territory has a settled court system applying laws, it then treats the law of that territory as though it was
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dealing with a recognised state. As I know the noble Lord will appreciate, there is a well-developed body of private international law set out in a number of textbooks, often in the form of rules, that tells you which laws from the country where the corporation is incorporated are to be applied by a domestic court in the United Kingdom and which laws of the domestic court of the United Kingdom are to be applied, one in preference to the other. I have listened carefully to the noble Lord, but that is what I understand lies at least in part behind the phrase,
"and account shall be taken of those laws".
Having determined that there is a corporation established in a territory with a settled court system, it does not follow that every law of that territory has to be applied in relation to the dispute before the British court. It takes into account those laws which it is bound to do by the well-established rules of private international law.
I hope that that explanation has been helpful to the noble Lord. If he is still not satisfied, we shall no doubt return to the matter in Committee. However, I am grateful to him for the general welcome that he gave to the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991
Advice and Assistance (Scotland) (Prospective Cost) Regulations 1991
Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991
7.17 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie rose to move that the draft regulations laid before the House on 20th March be approved [15th Report from the Joint Committee].
The noble and learned Lord said: My Lords, these regulations will raise the limits of income below which legal aid is available free, ensuring that the most vulnerable sections of our community continue to have that reassurance and protection. The regulations will also increase the level of financial authority delegated to the profession in respect of legal advice and assistance, with consequent benefits in terms of speed and efficiency for the profession, clients and the Scottish Legal Aid Board.
The first two sets of regulations increase the income limits below which legal aid is available free of any contribution. The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991 raise the lower disposable income limit of civil legal aid from £2,645 to £2,860 a year and increase the weekly disposable income above which a person is required to pay a contribution for legal advice and assistance from £64

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to £70. The latter regulations also prescribe the scale of contributions to be paid where weekly disposable income exceeds £70 but does not exceed £135.
The proposed changes represent an increase of around 8.1 per cent. which matches the uprating level of income-related social security benefits. The increases maintain consistency with the corresponding eligibility limits in England and Wales. The regulations will ensure that those members of the public who are most in need will continue automatically to qualify for free legal aid and for free advice and assistance. We do not at present propose to uprate the upper eligibility limits. The whole question of the provision of legal aid and the role of eligibility criteria is being addressed in the current review of legal aid. The first consultative paper is likely to be published shortly. We shall ensure that Scottish interests are fully consulted and that, in consideration of any proposals, full account is taken of Scottish circumstances. Pending the outcome, the Government consider it appropriate to leave the upper eligibility limits unchanged. It is nevertheless important to ensure that the income threshold for free legal aid is uprated, and this is what is proposed.
The third set of regulations are the Advice and Assistance (Scotland) (Prospective Cost) Regulations 1991. These regulations will substantially increase the financial authority delegated to solicitors to incur expenditure on legal advice and assistance without prior reference to the Scottish Legal Aid Board. Their purpose is to increase the financial limit from £60 to £80. This will give solicitors more discretion to proceed with their important and urgent work without having to wait for the board's formal clearance and will be of benefit to solicitors, clients and the board. It will speed up their service to customers.
I believe the three sets of regulations I have just outlined represent worthwhile improvements and, taken together with our decision to increase legal aid fees by 9 per cent. from 1st April, clearly demonstrate our determination to continue to maintain an effective legal aid service in Scotland, and our willingness to respond to the changing needs of that service.
Moved, That the draft regulations laid before the House on 20th March be approved [15th Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
Lord Macaulay of Bragar: My Lords, the three sets of regulations are welcomed by this side of the House, but I am not sure that they go far enough to meet the requirements of the population of Scotland who might require assistance in civil cases. I am bound to say that over the years complaints have been made about the way in which civil legal aid is administered in Scotland, in particular the levels at which people come into the system and the rate at which the civil practitioner is paid. At the moment, there is a real danger in Scotland that a second-class system of law is being introduced because people are not prepared to come into the legal aid system. Indeed, solicitors will send their legal aid clients away because they do not want to know them for two reasons: first, the remuneration is too low; secondly, the time taken to get thy; remuneration through is too long. That contrasts with criminal legal aid where there has been
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an acceleration in payment and the criminal practitioner is now better off than the civil practitioner in terms of payment.
We welcome the extension of availability of legal aid with no contribution in so far as the regulations provide for it. However, one wonders whether the figure of £2,860 a year is rather unrealistic. If my arithmetic is correct (and it never is), that gives an income of £57 per week. We are now living in an age when the average national wage is in the region of £180 per week, and here we have £57 per week as the eligibility level for disposable income for free legal aid. If we look at the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991, the starting point for disposable income range with maximum contribution is £70 per week. There appears to be a financial gap between the two levels of contribution.
I wonder whether the noble and learned Lord the Lord Advocate might consider it appropriate to set up a committee of some kind to investigate the relationship between the rates and methods of payment under the civil and criminal legal aid systems. There is a great deal of unhappiness about the legal aid situation in Scotland. Solicitors are shying away from giving service to the public which the public demand. If people who require legal aid for civil cases in particular are not being given a proper service, then service within the legal system is diminished.
Lord Fraser of Carmyllie: My Lords, I respond briefly to the welcome that the noble Lord has given to at least part of what is contained in these regulations. I make the observation that I do not challenge his arithmetic in the calculation of dividing £2,645 by 52. I stress to him that what we are dealing with is not the totality of an income but a disposable income. From his own experience the noble Lord will appreciate that a considerable number of items require to be deducted before arriving at the disposable figure. Therefore, the true or gross income of any individual would be significantly higher than the figure which appears in the regulations.
The noble Lord asked whether I might consider setting up a committee to look at a number of matters touching on the operation of legal aid. My answer is that I will not because there is already a review being undertaken on a UK basis. Although clearly there are separate systems for the administration of legal aid and the rates at which eligibility may be determined, there is obviously a UK content to it. That review is already under way and a consultative document should be published shortly. The noble Lord may rest assured that Scottish interests will be fully consulted as part of that exercise.
The noble Lord indicated he was concerned that one of the difficulties for solicitors in Scotland was that from time to time they might be dissuaded from participation in the scheme because it took some time to get paid. That is undoubtedly a difficulty. But I am sure he will appreciate that sometimes the fault lies as much with the solicitors themselves as with those responsible for making payment as they take considerable time to get their accounts into a shape which can be submitted to the Legal Aid Board. In small measure, I hope he is reassured by what is

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contained in the third set of regulations, because by increasing the financial limit under advice and assistance from £60 to £80, which sum can be incurred without prior reference to the Legal Aid Board, there should be greater simplicity and speed than would otherwise be the case in a number of small matters for which individuals and lay people go to solicitors to seek advice. With those observations, I am grateful to the noble Lord for what he has to say.
Lord Macaulay of Bragar: My Lords, I was unaware that a UK review was going on into legal aid. Can the noble and learned Lord say what the position is in relation to the question of brief fees as between Scotland and England?
As the Minister is well aware, at the moment in Scotland there is no such thing as a brief fee. As a result of that, an advocate in Scotland may spend a week or even a fortnight preparing for a case, but if the case does not go on the advocate is entitled to nothing, whereas in England a barrister instructed in a similar case (perhaps a major fraud) who spends a fortnight preparing for it will get a brief fee of considerable proportions. To that extent, there is a disparity between the levels of payment in Scotland and England. Perhaps the Minister can give your Lordships' House some information as to what approach is being taken to the question either of abolishing the brief fee in England, which having heard the debates over recent months would meet with considerable opposition in your Lordships' House, or introducing it in Scotland for counsel. This is not special pleading, but since the noble Lord has mentioned that there is a current UK review, I would have thought this matter must come within the terms of it.
Lord Fraser of Carmyllie: My Lords, perhaps I may just say briefly that this review looks at all aspects of the financial conditions of legal aid. I do not know whether it has or is proposing to look at that particular matter. I did indicate that, as part of the United Kingdom review, regard will be had to the particular Scottish considerations that apply.
I should say to the noble Lord that there are a number of Scots already working on it. I expect that, although it may take some time, it will be a very extensive and wide review.
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.31 to 8 p.m.]

Criminal Justice Bill
House again in Committee.
Clause 46 [Further amendments of enactments relating to children's evidence]:
Lord Mottistone Lord Mottistone moved Amendment No. 87:
Page 31, line 40, at end insert:
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("() In subsection (1) of section 32 of the 1988 Act (evidence through television links) leave out the words "but evidence may not be so given without the leave of the court" and insert "whether evidence shall be so given shall be determined by the wishes of the child witness." ").
The noble Lord said: Clause 46 extends the provisions of the Criminal Justice Act 1988 which allow child witnesses to give evidence by means of a video link. In the case of alleged sexual offences, the clause allows witnesses up to the age of 17 to give evidence in that way. Under current legislation, a child witness may give evidence by live video link instead of in open court only at the judge's discretion. Perhaps I may direct noble Lords' minds away from the technicalities of allowing witnesses up to the age of 17 to give evidence in that way. I refer to young children—very young in some cases. The current procedure means that it is impossible to let child witnesses know before the trial the manner in which they will be expected to give evidence at the trial.
Such uncertainty can only add to the already considerable stress experienced by many children waiting to give evidence in criminal trials involving allegations of violent or sexual offences. Many such children are extremely frightened at giving evidence in open court with the accused present. In some cases they are more likely to break down while giving evidence if called upon to give it in that way. Uncertainty about the manner in which evidence is to be given may deter some children from giving evidence; and indeed we have had examples quoted by other Members of the Committee during earlier amendments. It may also make parents reluctant to allow their children to give evidence.
If child witnesses could be assured from the outset that they would be able to give their evidence by television link, the fear and uncertainty experienced by many children could be considerably reduced, and that would lead to a reduction in the number of cases which collapse because of children's distress. My amendment seeks to alleviate the stress experienced by children waiting to give evidence at criminal trials by making provision to enable any child witness who wishes to do so to give evidence by live television link.
The Government have expressed the view that it is inappropriate for the witness to determine the method in which his or her evidence is given. In the case of child witnesses giving evidence at trials of alleged sexual or violent offences, I suggest that that consideration is outweighed by the importance of being able to assure children during the extremely stressful period while they are waiting to give evidence that they will not be expected to do so in the presence of the accused. The ability to provide such an assurance to a potential child witness would not impede the course of justice. It seems more likely to assist the course of justice as it would result in fewer cases collapsing because of the child's distress.
There are not many Members of the Committee in the Chamber. However, at Amendment No. 81 my noble friends Lord Renton and Lord Campbell of Alloway were distressed by placing executive power in the hands of the child. That is what we seek to do now. I am sorry that they are not present to argue their case on that point. However, I repeat the argument which

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was rather lost in some of the earlier amendments. We seek not only to ensure that children can give evidence under circumstances which are palatable to them but also to make sure that justice is done. If children are required to give evidence under circumstances in which they will not tell the truth or will not wish to say anything, then justice will not be done.
Although the position is unusual, and there may be a better way of describing what I seek to achieve which is not quite so blatant and enables the judge to consider that he has some say in the matter, I believe that such an amendment allows the child to have a hand in deciding whether the video link should be used. If my noble friend cannot agree to the amendment, perhaps between now and the next stage an amendment may be put forward which satisfies the obvious desires of the judge to be in charge of a case in the way in which the Bill provides but also provides that the child witness shall have a say. I beg to move.
Baroness David: I support the noble Lord, Lord Mottistone. During the Children Bill, the Child Support Bill and indeed this Bill, I have tried to support the case that the child's wishes and standing should be recognised. Children are people. They should have the right to express their views. There is a strong case for making such provision. One is more likely to have satisfactory evidence if one responds to their wishes. There is great logic in the amendment. If the noble Earl cannot accept the wording, I hope that he will accept the spirit of the amendment. Children should have the opportunity to choose how they will give evidence. That is likely to achieve the best solution and the best evidence.
Baroness Faithfull: I agree with the spirit of the amendment. I worry that children of three, four or five would not understand if one asked them whether they wished to appear in open court or in comfortable surroundings. When one takes a child of three or four to a big courtroom he or she often will not give evidence and one is in difficulties.
The thought of giving evidence in front of their abuser fills boys and girls of seven, eight or nine years with such horror and apprehension that they often will not give evidence; or they say that they will give evidence but when they reach court they do not do so. I am behind the spirit of the amendment but the wording needs to be changed because the situation is different with children of different ages.
Lady Kinloss: I support the amendment because it is crucial in preventing child witnesses from giving evidence in open court. Under the present system a great deal of distress is caused to children and to their families by having to wait until the trial to find out the manner in which the child's evidence is to be given. If the child witnesses can be assured from the outset—that is, if they are old enough to understand—that they will be able to give their evidence by television link, the fear and uncertainty experienced by many children will be considerably reduced. That will lead to a reduction in the number of cases which collapse because of children's distress.
Lord Morris of Castle Morris: I speak tentatively and hesitantly about the amendment because as a non-lawyer, although not as an anti-lawyer, I am conscious that I am treading ignorantly in an area where so many Members of the Committee have great and expert knowledge. I take the point made by the noble Baroness, Lady Faithfull, that there are difficulties in the amendment as it affects small children. Surely the object of the exercise is to give the court the benefit of the child witness's evidence and to ensure that it is given freely, clearly and without fear. We must ensure that the evidence is given at its best, as the noble and learned Lord, Lord Ackner, reminded us. Surely justice is not served if the court is denied evidence because the witness is too frightened to testify. Children are easily frightened by adults. Lawyers too often forget that a court of law can be an awesome and intimidating place.
The noble Lord, Lord Mottistone, drew our attention to the current legislation under which a child witness can give evidence by a live video link instead of in open court only at the discretion of the judge. The inevitable effect of that is that one cannot let the child witness know before the trial the manner in which he or she will be expected to give evidence. That inhibits the giving of evidence.
There are ways around that difficulty. One way might be to legislate so that, if asked, the judge is required to give a ruling at the earliest possible stage in the conduct of a case. But there are also problems and perils in that approach. The present amendment—one might wish to see it a little more felicitously worded—avoids them and offers a simple alternative. If child witnesses could know from the beginning of a case that they would be able to give their evidence by a television link, their fear and uncertainty might be considerably reduced. They would therefore give their evidence better which would be an advantage to the court. Furthermore, more courts and more children would be enabled to receive and give such evidence. Fewer cases would collapse and there would be greater efficiency in the administration of the criminal law. Surely that is a consummation devoutly to be wished.
The Government have expressed the view that it is inappropriate for the witness to determine the method by which his or her evidence is given. I find that view difficult to understand. To what is it inappropriate? Is it unsuitable or not fitting in the pursuit of truth or the achievement of a just verdict? If so, I should be grateful to hear evidence of that surprising assertion. On what published research is the view based? What deep well of legal experience has been plumbed to bring up that particular dead fish? We are breaking new ground and, as the noble Lord, Lord Hutchinson, said, we are dealing with matters unique in the criminal process.
If in this case the child witness were allowed to decide by which of two methods to give evidence, is it true that some fearful precedent would be set which would reverberate throughout the entire legal system? Would the authority and prerogative of the judge be fatally vitiated? Would the proceedings of the court run wildly out of control? Surely not! Would not any such putative risk be entirely outweighed by the

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importance of being able to assure children during the extremely stressful period of waiting to give evidence that they will not necessarily and unless they choose be expected to do so in the presence of the accused?
8.15 p.m.
Lord Hutchinson of Lullington: I find it distasteful that I appear to be cast in the role of the dinosaur lawyer. I have spent a great deal of my legal career trying to find a solution and assist children to give evidence. I have taken a particular interest in that matter. The noble Lord, Lord Morris, asked why the proposal is said to be inappropriate. It is that the substitution of the court's determination of an issue by the wishes of a prosecution witness is totally inappropriate.
Perhaps he will understand that the important issue in all our discussions is the question of justice and not that of the interests of the child. It is extraordinary to suggest in a statute that a prosecution witness is the person who determines the way in which evidence is given. That is an example of the child lobby going over the top. It is a perfectly simple matter which is in the hands of the judge. All such matters are in the hands of the representative of justice in the court; that is the judge. If one party wishes that one course should be taken, that party would make a submission to the judge.
As regards the administration of justice, the judge decides what is right in the circumstances and makes an impartial decision. If the child wishes to give evidence in one way or another the person who represents the child stands up and tells the judge that. The judge listens to the submission. He then listens to the submission of the other side because there is another side. Then the judge impartially makes a decision. I cannot understand why there is all this fuss. The matter is perfectly simple and straightforward and can be decided in the normal way.
Lord Mottistone: Perhaps when the noble Lord, Lord Hutchinson, reads Hansard tomorrow he will understand that, if he had been present in the Chamber to hear my introductory speech, I answered many of his questions before he spoke.
Earl Ferrers: After that little rebuff I say only to the noble Lord, Lord Hutchinson, that the modest mantle of dinosaur lawyer suits him well, in particular when he is right. We have returned to the old issue of the rights of the child, the rights of the defendant and the balance to be struck between them. I sympathise a great deal with what my noble friend has said. I am sure he will agree that it is fundamental to the process of justice that the judge decides within the framework of the law and the rules of the court how the proceedings in his court should be conducted. He must ensure that they are conducted in a way which is fair to all parties to the proceedings and which ensures that justice will be done at the end of the day. That is a difficult responsibility. The amendment, in effect, delegates that decision from the judge to none other than the child witness or to his or her parents.
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It is not right nor fair to place such a responsibility on a child witness and his or her parents or supporters. By definition a child witness is a person of tender years and probably with no previous experience of the legal process—how on earth can children have that? Such a person is hardly in a position to judge which method of giving evidence will be in his or her own best interests, still less which will be most likely to result in justice being done at the end of the day. However despicable the crime, we must never forget that the defendant also has a right to a fair trial. Important matters of court procedure cannot be left to be determined by the wishes of a person who in many cases will be the chief prosecution witness.
Nothing in the Bill prevents the child's representatives taking account of his views about the manner in which he gives evidence. However, neither the Bill nor the Criminal Justice Act 1988 which preceded it gives to the child the final decision.
I am sure that the courts will consider carefully and sympathetically the wishes of a child witness and will take them into account in deciding how the interests of justice will best be served in each case. I fully expect that in the vast majority of cases the child witness will be permitted to give evidence by live television link. That has been the experience so far.
I have every sympathy with the aim to eliminate the fear and stress associated with a court appearance by a child witness. I hope that, as a result of what I have said, Members of the Committee will see that this amendment goes too far.
I should mention also a technical but fairly serious objection, in that the amendment is unsuitable because it overlooks the provision for determining whether an adult witness who may be eligible to give evidence under Section 32 of the 1988 Act should be permitted to do so. That section of the Act says that in certain cases any person—adult or child—may give evidence through a live television link if the court gives leave. My noble friend's amendment replaces those words by reference to the wishes of a child only. Therefore, adults have disappeared from our considerations. For those reasons I do not advise Members of the Committee to accept my noble friend's amendment.
Lord Mottistone: I am grateful to all Members of the Committee who have taken part in this debate. I am sorry if I was rather abrupt with the noble Lord, Lord Hutchinson, and I hope that he will forgive me.
One point does not quite come through, although my noble friend touched upon it; that is, it would be helpful if a child could know before it came to court the circumstances in which it will be required to give evidence. There may be very good reasons—and I accept that—why the judge decides that the child must give evidence in court. In that case it would be helpful for the people looking after the child to introduce the child to the court and explain what is involved. A court is very awe inspiring, almost as frightening as I found your Lordships' House to be when I first arrived here.
On the other hand, if the child or the people looking after the child know that the evidence is to be given through a video, then the child can be prepared for

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that. My noble friend Lady Faithfull mentioned that the child should be in comfortable surroundings. In my experience there are no comfortable surroundings in court buildings. Therefore, that will create a problem. However, at least the child can be prepared in the right sort of way.
As I said in my opening speech, the judge must take charge of the proceedings, as the noble Lord, Lord Hutchinson, impressed upon us. Moreover, the judge may well not make a decision on this until the trial date because he must hear from submissions on both sides. The child needs to be prepared for what will be, in any event, a great ordeal. Therefore, there is a problem. It is easy to say that we must be fair to everybody. However, I return to my point that it will not be possible to get the best evidence from the child unless that evidence is given in the right circumstances.
Having said that, I shall study what has been said. We may return with another amendment on Report. However, at this point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 agreed to.
[Amendment No. 88 not moved.]
[Amendment No. 89 had been withdrawn from the Marshalled List.]
Lord Mottistone Lord Mottistone moved Amendment No. 90:
After Clause 46, insert the following new clause:
("Review of child witness procedures
—(1) The Secretary of State shall keep under review the provisions of this Part.
(2) In particular he shall keep under review the provisions relating to—

(a) evidence given by children;

(b) video-recordings of testimony from child witnesses;

(c) cross-examination of child witnesses;

and any other such matters as he considers appropriate.
(3) Where the Secretary of State has conducted a review he shall publish the results, together with any proposals he may have with respect to the matters reviewed.").
The noble Lord said: A similar amendment was moved in another place and was rejected on the basis that the Government did not wish to be held to a strict timetable imposed on the review duty. My amendment still covers a duty to review the new provisions but does not insist upon a timetable. Therefore, I hope that it meets the Government's objections.
A major recommendation made in the Pigot Report on the use of video recorded evidence was that, following the introduction of such a system, it should be subject to review at an early stage. The NSPCC and other child care organisations such as the National Children's Bureau and the Children's Legal Centre endorse that recommendation and believe for a number of reasons that this Bill should include a provision for gathering information.
First, as with the introduction of any new measure, there is a need for careful monitoring and assessment of best practice and development of the service. Such an accurate assessment is only possible if supported by detailed written information. Secondly, information gathered about the use of video recordings and the reasons why some videos are not admissible will
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contribute to the development of appropriate procedures and best practice in the making and use of video recording techniques.
The requirement to publish the results of those reviews should encourage consultation with a wide section of the professionals working directly with children and their families. The views and opinions of children should also be sought. I hope that that is acceptable. It should help to ensure that children receive the most appropriate service at a most traumatic period in their lives. A view would help directly to improve practice, and, hence, the quality of the service.
There is a relative paucity of hard data about children in criminal proceedings. Perhaps I may take one example. Neither the Home Office nor the Lord Chancellor's Department collect statistics on case disposition times by offence. Therefore, we are in a position where it is almost impossible to obtain information about categories of offence in which victims are, by definition, children. Nor is information about disposition times obtainable from special data collection exercises related to child abuse. Effectively, we are in a situation in which there is no hard information about the numbers of child witnesses or the time delay for cases coming to court.
My amendment would provide some of that missing information. It seems dreadful to say this but the best information we have about child cases is what we read in rather purple terms in the press and not through statistics carefully kept by the government departments responsible.
Therefore, as the pressure of a timetable has been removed, I hope that my noble friend will accept an amendment similar to this for inclusion in the Bill because I believe that it is important that it is written on the face of the Bill rather than allowing it to come about by some other secondary means. It is important particularly because, as many Members of the Committee have said in relation to my earlier amendments, this is breaking fresh ground. When fresh ground is being broken it is particularly important to know what one is at and to gain all the advantage possible from such experiments as one is prepared to make. Therefore, I believe this review to be terribly valuable and thoroughly justified for inclusion in the Bill. I beg to move.
Lord Morris of Castle Morris: All Members of the Committee who have served in the armed forces in peace or war will be familiar with the concept of debriefing. After any reconnaissance, mission or patrol, participants were interviewed and questioned by the debriefing officer so that the maximum information could be extracted from the exercise. A good intelligence officer—and I was a very good intelligence officer—could learn more from the debriefings than from any other source of information. We were always taught that a debriefing must be informed, immediate and interrogatory. The same impulse informs this amendment, which it gives me great pleasure to support.
In any review of child witness procedures, as we are becoming used to saying, we are breaking new ground. Videos and television links are new; the whole

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exploration of the sordid underworld of child abuse is new. It is therefore no more than common sense that we should be vigilant to check and assess our activities.
The amendment does no more than require the Secretary of State to monitor the new activities and publish the results. Surely it is necessary to do that. We have all heard stories of a child who, immediately after an alleged assault, tells a highly detailed and marvellously convincing story to the camera. A week or a month later that same child tells a totally different story in open court. The case is dismissed and our confidence is shaken. But how many such incidents are there in any year? Are they on the increase? Or is it almost unheard of and is that why it becomes anecdotal?
At the moment we must argue by anecdote because there is no other way to argue. We are free as the wind to speculate because we have so few facts and almost no statistics. The amendment, if the Government will be so good as to accept it, will start a process of appraisal which will build up a database of fact and of evidence which will enable researchers and practitioners to propose adaptations to our systems which will be built on the rock of knowledge and not on the sand of speculation.
As the noble Lord, Lord Mottistone, said, the requirement to publish the results of the reviews would encourage a process of consultation with the people most nearly concerned. I stress that one should seek the views and the opinions of the children involved. We should listen to what those children say. I remember all too well when, in universities, we arrogantly assumed that there was no point in having students on academic committees because they would not know what they or we were talking about. We were wrong then and I hope that we shall not make the same mistake here.
To consult the children as part of the process could only be of benefit. In this relatively untrodden area of new technology and child witnesses we are setting a fresh course. We are breaking new ground and at the same time we are walking in a minefield. Surely we need all the help that we can get.
8.30 p.m.
Earl Ferrers: The Pigot provisions in Clauses 43 to 46 represent radical changes to the way in which the courts treat the evidence of children. The Government entirely accept that they have a clear responsibility to monitor the implementation and the operation of what are important reforms.
I repeat the undertaking given in another place by my right honourable friend the Minister of State and assure the Committee that the Government will be keeping a close eye on how the reforms work out in practice. The amendment seeks to place an obligation upon the Secretary of State to carry out the review and publish the results. One must be careful to realise what that means. It is important to include in the Bill that which is important. The Pigot Committee certainly recommended a review, and rightly so. However, it did not recommend a statutory provision to that effect,
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and perhaps it did not do so because it considered that the Government would heed the recommendation. Indeed we shall, and I suggest that we do not need a statutory duty to do that.
The purpose of the new provisions is to enable children's evidence to be more easily heard by the courts and to reduce the stress on a child witness giving evidence in court so that more child abusers can be brought to justice. That is the purpose of the alterations. Of course we want to ensure that the new provisions are achieving those aims and that the departments concerned are dealing with them properly. Indeed, those departments are already discussing how best that may be achieved. We have in mind commissioning independent research specifically for those purposes and will, of course, make full use of the statistical resources both in the Home Office and in the Lord Chancellor's department.
I assure the Committee that we shall not withhold the results of such a review nor any proposals arising from it. However, the formal process of the new clause would make the process rather inflexible and cumbersome and, because the Government intend to do it anyhow, it would be unnecessary.
Lord Mottistone: Before my noble friend sits down, perhaps he will comment on the point that I made. The present statistics produced both by his own department and by the Lord Chancellor's department do not provide any information of hard data in regard to children such as we want to see. What is distressing is that the current picture about evidence in regard to crime in relation to children is so inadequate. We are concerned that the Government will do no better in the future unless there is pressure to make them do so.
Lord Hylton: The noble Earl the Minister repeated what he described as an existing undertaking to review. I believe he went on to say that the results of such a review would not be withheld. Perhaps he would care to comment on the text of the amendment, which imposes a duty to publish the results. Is there not a difference between publication and not withholding?
Earl Ferrers: If I may say so, the noble Lord, Lord Hylton, is indulging a little in semantics. It is difficult to believe that a Government who have introduced new arrangements of a far-reaching nature in relation to children will not take great care in regard to the effect that those provisions will have. Of course they will take care. It is our intention to take care.
New research is being commissioned on this important area. My noble friend will be glad to know that we shall not be relying solely on statistics. We want to see the provisions work as much as everybody else. If the statistics do not give the right information then new provisions must be introduced; that is precisely what we are doing. The noble Lord, Lord Hylton, says that there is a difference between "publishing" information and "not withholding it". It is our intention that the statistics and information which flows from them should be public knowledge.
Lord Mottistone: I thank my noble friend for his full response and other noble Lords for taking part in

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this debate. I am puzzled that the Home Office seems to be reluctant to accept statutory codes of practice and a statutory review process. Noble Lords who have attended the Chamber for a number of years will be aware that during the course of the past 10, even 20 years, countless Bills have been introduced where government departments have accepted statutory codes of practice and reviews. "What have they got to hide?" is the kind of question that springs to mind. Why do the Government make the firm decision that they will produce the information but do not want to be told to do so? That is rather petty for a government department, and I do not understand it.
I do not seek to be unreasonable. However, the government department concerned is being particularly careful not to have its affairs revealed to the great public who are to benefit from what is being done.
Earl Ferrers: I do not want to prevent my noble friend from withdrawing the amendment, if that is what he intends to do, nor do I wish to pre-empt him if that is not what he is going to do. We always have this fearful harangue over statutory codes of practice and requirements. Whenever we discuss affirmative or negative resolutions there is always a row.
I can only say to my noble friend and to the Committee that we talked earlier about statutory codes of practice. There is no point in putting something into a Bill unless it achieves a positive effect. When we were talking about a statutory code of practice it was suggested that the Bill should contain what was in the code of practice. As the Government intend to put them in the code of practice, there does not seem to be much point in making the provisions a statutory obligation. Where one has a code of practice, does it have a statutory effect on the court? That is the difference. In the amendment that we dealt with earlier that would not have been the case. There would not have been a statutory effect on the court. It would simply have obliged my right honourable friend to have drawn up a code of practice, which he intends to do in any event.
Here we have a very similar situation; namely, a statutory obligation put on to the Secretary of State to do some research, find out what the facts are and then to publish them. If my right honourable friend intends to carry out research and then to publish the facts, it seems pointless to put that requirement into the Bill because that is what he intends to do anyhow.
Lord Mottistone: I am grateful to my noble friend for his comments, but they do not take the matter very much further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [Attendance at court of parent or guardian]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 91:
Page 32, line 39, at end insert:
("(1A) Where the court is satisfied that to require a parent or guardian to attend court at the times at which the court normally sits would jeopardise his employment, it shall arrange for the proceedings to take place at a time at which the parent or guardian does not normally work.").
The noble Baroness said: This amendment requires that, where attendance at court would jeopardise the
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employment of the parent of a juvenile offender, a sitting should be arranged in the evening or at some other time when the parent is not at work. On reflection, I am sorry that I have drawn this amendment so narrowly because, taking into account Amendment No. 94 which we shall be discussing later and the question of fining and binding over parents, I wish now that I had made this amendment much wider than dealing just with the question of employment.
I have often attended the magistrates' court when a child has appeared with no parent. More likely, one has been in court with a child when the mother only has attended and never, or perhaps very rarely, has the father attended. Therefore, it is always the mother who has to bear the brunt of everything. More women are going out to work than ever before. There is a great deal of unemployment. It will be a very serious situation when one or other of the parents has to give up work. Equally, I believe Section 2 of the Children Act 1989 states that there should be parental responsibility. I think that responsibility means responsibility on the part of both parents and not just one. That is only fair and right.
It should be possible for parents to say that they cannot attend court in the daytime. As is the case in Scotland where a parent cannot attend during the day, it should be possible to arrange a sitting in the magistrates' court in the evening. The Magistrates' Association has agreed with this proposal and thinks that it is right. Furthermore, the Justices' Clerks' Society says that its Members are aware from their daily experience that the repeated attendance of parents at court may jeopardise their employment.
I know it is said that if there is to be an evening court, as there is in Scotland, there will be extra costs, but I maintain that they will not be great. The country should be prepared to pay the costs. As I have said, I do not believe that they will be very great. Amendment No. 94 deals with fines and binding over. How can it be possible to bind over or fine parents if neither of them is there or if one parent only is there? If the parents do not wish to attend court because of their employment and the fact that they would lose money, if they did have to attend they may be unable to pay the fine. We should follow Scotland with its panel system. At any rate, we should give parents the choice of attending one evening, particularly as the Magistrates' Association and the Justices' Clerks' Society agree with this amendment. I beg to move.
8.45 p.m.
Lord Mishcon: I support this amendment. I remind the Committee of the obligation now contained in this Bill. That obligation is very clear. It states through a new clause to be inserted in our law that:
"Where a child or young person is charged with an offence or is for any other reason brought before a court, the court—(a) may in any case, and (b) shall in the case of a child or a young person who is under the age of sixteen years, require a person who is a parent or guardian of his to attend at the court during all the stages of the proceedings".
There is a proviso—
"unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case".

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I am not sure that the words "the circumstances of the case" cover the circumstances of the parents. I think the words
"having regard to the circumstances of the case",
make the requirement mandatory in the case of a young person or child under the age of 16 and discretionary in any other case.
That is a very serious obligation on the parent. We must be careful about what we are doing. If the court proceedings are held in the normal way during the day either the mother or father—the noble Baroness, Lady Faithful], has emphasised that in many cases it may be the mother—will have to go to the employer to get leave of absence. Apart from the inconvenience of giving that leave, the employer will no doubt receive an answer to his inquiry as to why the parent has to go to court—"Because my child is in trouble. There is a charge against him of stealing". That is not a very agreeable situation for a parent to face, especially where the parent has been absolutely dutiful in the way in which the child has been brought up; most likely the child has been encouraged to go to church and do all kinds of righteous things, but this situation has arisen.
Apart from the risk of losing a job, is it right that in this kind of case the courts should be the masters of the situation concerning the parent or should they be the servants? I do not think it is a bad thing for the juvenile courts to have the motto of the Prince of Wales, which is "Ich Dien" (I serve). Should not the juvenile courts also serve the proper interests of those who are before them when we are looking at a Bill which makes it mandatory in certain cases, if the courts so order, that the parent must be there throughout the whole of the proceedings? As the noble Baroness said, there may be inconvenience. She rightly pointed out that when the White Paper hinted at this provision about the compulsory attendance of parents, the magistrates themselves drew attention to the hardship and difficulties that might be caused if proper provision was not made for the convenient attendance of parents who are employed.
The noble Baroness also pointed out that the Justices' Clerks' Society felt—I am paraphrasing—that this might create grave difficulties. The Government should say, without equivocation and without the need for further consideration, that this is just. The courts were made for the offenders, not the offenders for the courts.
Lord Mottistone: I support the amendment. I recognise the difficulties that might be caused. My noble friend has said that the Magistrates' Association and the Justices' Clerks' Society support this provision. I believe that. The only argument I can possibly see against it is that one would perhaps have to have another court clerk on a particular bench in order to cover the extra work. One does not know what the extra work might be and one might have to have a little more money to pay them overtime.
I can see no other objection to this. I am sure that the magistrates in my own county, provided it is not too onerous a burden, would be prepared to spare the time. I am equally sure that my court clerks would be
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too if it was going to produce a better result. I cannot see any objections. Unfortunately we have on the Isle of Wight periodic riots and invasions by people on motor scooters and courts have to be called over a weekend. This would be the same sort of thing. It does not happen very often happily, because the summer comes only once a year and the visits come only once a summer. However, these things do happen. One does not want to be too rigid about this in looking at what would be a marginal amount of increased expense.
Baroness David: I support the amendment too. What the noble Lord has just said is quite right. Some magistrates might be quite pleased to sit in the evening instead of perhaps in the morning or the afternoon when they have to give up their work. I also support what was said by the noble Baroness, Lady Faithfull. So often one has been in court when there has been just the one parent of a child. I think it is very important, if possible, to have both parents there. They should be. I do not have anything more to say. This is a very sensible amendment and I hope the Government will accept it.
Lord Henderson of Brompton: I entirely agree with the amendment. The noble Baroness, Lady Faithfull, said in moving it that we should look north to Scotland where this is done already. If we look around us we find that, far from objecting to it, those who are most affected—the magistrates' clerks and the magistrates themselves—actually proposed this. If we look south to France we find that it has long been the practice. It is an amazement to them. They gasp and stretch their eyes when they find that we are so rigid that we do not put the family first. Putting the family first means adjusting sitting times to when the family can attend. Whether we look north, south or just around us, this amendment is acceptable.
Baroness Seear: I shall be very brief because it seems rather futile to stand up and say, after everybody else has said it, that I agree with this amendment, since I have my name to it. However, I should like to make one point. On second thoughts it is perhaps rather a pity that we included the phrase "would jeopardise his employment". It should not be necessarily only when employment would be jeopardised. I can think of all kinds of stupid and time-consuming arguments as to whether employment would be jeopardised. It should be a matter of agreement that a court would sit if a request was made by the parent and the court thought that this was a reasonable thing to do. It should not insist on evidence that it would jeopardise employment.
If it were considered that court sittings in the evening would not occur too often—although I agree that it would be rather a good thing—I should have thought that, with encouragement, quite a number of employers would not only give time off, certainly in the larger organisations, but would be prepared to pay for time off. If parents were not given paid time off but were given time off in the form of leave of absence without pay, the courts should pay for loss of earnings when a parent attends court and the court did not sit

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in the evening. There are variations around this theme as to how to get a parent into court. All of them are possible and they should be covered by this provision.
Lord Hutchinson of Lullington: I wish only to add that this amendment has far greater implications than the specific matter of the juvenile court. I hope that the amendment will be accepted by the Government and that it will send a message to the noble and learned Lord the Lord Chancellor that courts throughout the country sit not for the convenience of the judges and the magistrates but for the convenience of the public. That message should be taken on board by courts other than juvenile courts. I hope that that message will go home to the noble and learned Lord the Lord Chancellor. This amendment is a good occasion to make the point.
Earl Ferrers: I had hoped that the dinosaur lawyer would come up with a controversial point of view or one contradictory to that which had been expressed by others, but he did not do so.
The noble Lord, Lord Mishcon, expressed his hope that we would be able to accept this amendment without equivocation. One always hopes that but it does not always work out the way that one might wish. The noble Lord made one quite curious point. He said that the courts were made for offenders and not offenders for the courts. Courts are made for justice and justice includes both sides. The noble Lord, Lord Mishcon, shakes his head. Justice consists of two sides of an argument and not one.
The duty of the courts to require parents to attend court is not intended to be used without regard to the circumstances of the case or indeed the circumstances of the parents. Clause 47 makes it quite clear that the court need not require parental attendance if it is satisfied,
"that it would be unreasonable … having regard to the circumstances of the case".
I agree with my noble friend Lady Faithfull that it is important that parents should attend and that it should not always be only the mother who attends.
The phrase "the circumstances of the case" is intended to encompass all eventualities, including the effect on the employment of the parent, where it is relevant. I entirely agree that it would be quite wrong to jeopardise a parent's employment by requiring attendance at a court. I have no doubt that the courts would, could and can take this into account.
The noble Lord, Lord Henderson, said that the magistrates' clerks and justices want this provision. The clerk to the justices already has power to list cases as he considers appropriate in the interests of justice. I understand that courts can and do sit at different times. However, in setting the cases which are appropriate in the interests of justice he will need to consider the needs of all those involved in the case—not only the needs of the defendant or the parents but the needs of the victim and of witnesses who also have work and domestic commitments. These all have to be taken into account. They are also important. If the victim or a witness is also a young person he too might lice his parents to be able to accompany him to court and to provide support. The court has to
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consider all these relevant factors. It would be wrong to place a specific requirement on the courts to arrange the times of the proceedings solely to suit the parent or the guardian of the defendant.
I understand the concern which is expressed by my noble friend and around the Committee. However, I think the ability for courts to arrange times of sittings is available now. It is important that they should make these arrangements in view of all the interested parties and not just one interested party.
9 p.m.
Lord Mishcon: The noble Earl may have misled himself on the matter. I am sure that he would never mislead the Committee. It is not just a question of fixing a time when it is convenient for all the parties involved; the amendment specifically says that when the court requires the attendance of a parent, it will, for the convenience of that person where the employment position is jeopardised, fix a hearing not for the whole case but for the time when it wishes to hear what that parent has to say. It is not a question of all the days of the hearing being arranged to suit the convenience of the parent. When the court requires the attendance of a parent and such attendance will jeopardise the employment position, then for the purpose of hearing the parent, the court will fix a time which will ensure that the employment position is not jeopardised.
At this stage, perhaps Members of the Committee will allow me to make a point which I did not make previously. If the parent's employment is jeopardised, what will the atmosphere at home and the relationship between parent and child be like? Surely the court will want to make that as solid, as firm and as warm as possible in order to get over the difficulty in which the juvenile finds himself.
Lord Harris of Greenwich: I hope that the noble Earl will be able to assist us on a different matter. Can he tell us what is the penalty position so far as concerns this clause? In other words, what happens if the parent is unable to attend court for one reason or another? I am sure that the noble Earl will be able to help us on that matter.
I am concerned to note that the noble Earl has chosen to ignore the position of the Scottish children's panel. That aspect was put to him by the noble Baroness, Lady Faithfull, but he chose not to reply. I hope that he will now be able to do so. If that is possible in Scotland, why is it not possible in England and Wales? The additional difficulty which the noble Earl must recognise is that we are often dealing with a situation where there is only one parent available. As we know, there are single-parent families in many inner-city areas, and many of the children in that situation have a disposition to appear before the courts. In cases where there is but one breadwinner, it seems to me to be quite astonishing that the Government are apparently not prepared to move in the direction suggested by the noble Baroness. I very much hope that they will think better of it.
Earl Ferrers: The Government are always prepared to consider such matters; but whether they consider

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them in a way which may be considered to be better is a matter ultimately for Members of the Committee to decide.
The noble Lord, Lord Mishcon, said that parents could be called at different times at the request of other parties. However, I do not think that that would be realistic in the context of a juvenile court hearing. Such matters are normally dealt with in one session. It would be remarkable if one were to attend a court which was specially convened to hear one person's evidence. With regard to the children's panels, the legal system in Scotland is different. Our juvenile court system works well and is suited to our needs.
I understand why Members of the Committee are concerned about the matter. I certainly do not wish to see a situation where a parent was unable to attend court, or a court sitting at a time when a parent could not attend. However, as I said earlier, I believe that there are many occasions when courts sit at different times in order to meet the convenience of certain parties. It would be wrong to put the onus totally upon the courts to sit at a time to suit the needs of one particular party in the case; in other words, the defendant. The courts have to consider the needs of all the parties involved, of which the defendant is one.
Lord Hylton: The Minister continually refers to defendants and the parents of defendants. Surely the amendment could be read the other way around. In other words, the parents in question might be those of the plaintiff.
Earl Ferrers: That is precisely the point I made at the beginning of my response. That is why it is most important that the court should take account of the needs of all parties in the case.
Lord Harris of Greenwich: The noble Earl is quite right to say that the Scottish legal system is different from that which exists in England and Wales. However, unhappily, that does not get over the problem. Were issues of the kind that we are now discussing to take place in Scotland, it would lead to a situation where a children's panel would meet in the evening. The issue is not about the legal system in Scotland. The question is: why are we not prepared to put parents in England and Wales into the same position as that which applies in Scotland?
I also asked the noble Earl, as no doubt he will recall, what was the penalty provision as regards a parent who fails to appear in court. Finally, in my view the noble Lord, Lord Mishcon, made a powerful point which was not wholly answered by the noble Earl. If one looks at the new Section 34A(1) of the 1933 Act, it will be seen that there is a requirement on,
"a person who is a parent or guardian of his to attend at the court during all the stages of the proceedings"—
and then comes the particular point to which the noble Lord, Lord Mishcon, drew attention—
"unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance"—
and these are the relevant words—
"having regard to the circumstances of the case".
With the greatest respect, that does not seem to me to indicate that the court would take account of the
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problems of a parent in attending a court case; it relates to the circumstances of what is alleged to be a criminal offence, and that is a wholly different question.
Earl Ferrers: The noble Lord, Lord Harris, asked what the penalty was for non-appearance. I have an idea that he might know what it is. In the last resort, it is the issue to a constable of a warrant to arrest the person to bring him before the court. I accept that that is severe. I do not believe that it would happen often. I accept that there is anxiety about this matter, and I am prepared to consider what the Committee has said. I cannot give an undertaking to reach the agreement the Committee would like, but I shall consider what has been said to see whether there is any way in which we can meet the points. I doubt whether there will be, because there are a number of other sides to the coin. I shall consider what has been said.
Lord Harris of Greenwich: I am grateful to the Minister for what he has said. I do not suggest that he has made a commitment, but he has undertaken to look at the matter again, and I very much welcome that.
Baroness Faithfull: I am somewhat dazed by the replies given by my noble friend the Minister. He is usually down to earth and full of common sense, but it may be late in the evening. There are two matters I did not understand. First, did I understand him to say that it would be possible—and the provision is now available—for a court to be called? Secondly, he seemed to think that a special court would be called for a special case. As the noble Lord, Lord Harris, said, in Scotland a special court is not called for a special case. It is known that a court meets on a certain evening once a fortnight. One is therefore in a stronger position legally if a parent does not attend. The parent may say he cannot attend during the day. It would then be possible to say, "A fortnight hence there will be an evening court. If you attend then, it will be possible for the case to be heard". If the parent does not attend, from a legal point of view one is then in a good position to take action against him. If one merely says, "You must attend the court during the day", one is not in a strong position to charge the parent with not attending.
I shall withdraw the amendment for one reason: I feel that I have drafted it badly. It is too wide. It is not specific enough. I shall withdraw it because I have made a mistake which I should like to rectify. My noble friend said that he will look at the amendment. If I had drafted the amendment correctly I should have pressed it. I shall obviously not press it tonight, but I shall return to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 91A:
Page 32, line 40, leave out from ("person") to ("in") in line 1 of page 33 and insert ("who—

(a) is in the care of a local authority; or

(b) is provided with accommodation by a local authority").

The noble Lord said: The amendment is an attempt—I am sure that the Minister will appreciate it—to

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help the Government express what we believe to be their desire in this legislation but which we think, with great respect, is not carried out by the Bill's wording.
Clause 47 provides, as I said before, for a new section to be inserted into the 1933 Act in place of an existing section. As we have just seen, under new Section 34A(1) the Bill requires a parent to attend court. Subsection (2) states:
"In relation to a child or young person"—
I emphasise these words—
"for whom a local authority have parental responsibility",
a local authority representative attends in place of the parent.
Local authorities do not have parental responsibility for children provided with accommodation. I believe that under the Children Act 1989 the new term is "voluntary care". So we are coming to the Government's rescue with the amendment by making it abundantly clear that it is the local authority which should attend in both those cases, despite the fact that the latter case does not come within the definition in the Bill of a child or young person for whom a local authority has parental responsibility. The amendment is thrown as a present to the Government Front Bench. I hope that they will accept it with grace. I beg to move.
Earl Ferrers: I am grateful to the noble Lord, Lord Mishcon, for throwing a gift to the Government; it does not often happen. In view of his generosity, perhaps I may take the opportunity to explain to him exactly what we have sought to do in Clause 47 in relation to the attendance at court of local authority representatives with juveniles.
First we have provided for the local authority to be regarded as the parent or guardian of a child or young person in certain specified circumstances. This means that where those circumstances apply, the court will be able to require a local authority representative to attend court rather than the parent or guardian. This is intended to reverse in part the decision in a case in 1983 between Leeds City Council and West Yorkshire Metropolitan Police. It held that where a child or young person is in care, the local authority is not a guardians for the purposes of Section 55 of the Children and Young Persons Act 1933 (and by implication Section 34 also, which is amended by Clause 47).
Secondly, we have worked on the presumption that, when a child or young person appears before a court, it should in most cases be his or her parent or guardian who attends with that child or young person. Parents and guardians have direct and real responsibilities for their children. Even when the child is being looked after by a local authority, the latter must, under the Children Act 1989, try to ascertain the wishes of the parents before making a decision about the child. This is surely right. So in Clause 47 we have drawn very narrowly the circumstances in which the local authority must attend court. Two conditions must be met. The child or young person must be in the care of or provided with accommodation by the local authority. This reflects Section 22 of the Children Act, which places a general duty on local authorities in relation to children looked after by them. The second
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and more restrictive condition is that the local authority must have assumed parental responsibility for the juvenile in question as defined in Section 3 of the Children Act. In other words, it has assumed all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child. A local authority only assumes parental responsibility when a care order is made under Section 33 of the Children Act or an emergency protection order is made under Section 44. A local authority may have a number of general duties in relation to a child without assuming parental responsibility. But Clause 47 will bite on a local authority only when both conditions are satisfied.
I turn now to the gift of the noble Lord, Lord Mishcon, with his amendment. I suggest that it would simply remove the condition that a local authority must have assumed parental responsibility. This would increase the proportion of cases where the local authority representative would have to attend court with the child, since the local authority would be regarded as the parent or guardian in all cases where the child or young person was in care or was provided with accommodation by them and not just in those cases where a care order or an emergency protection order had been made as well. I doubt whether that is what the noble Lord intended, but it is the effect of the amendment, which is probably the reverse of what he intended.
9.15 p.m.
Lord Mishcon: I well understand that the Minister fears gifts if they are borne by Greeks, but we do not happen to belong to that nationality on the Opposition Front Bench.
Earl Ferrers: Did the noble Lord say something about Greeks? I missed his bon mot.
Lord Mishcon: I am not sure that the bon mot deserves repetition. Possibly the noble Earl follows the maxim that he fears gifts when they are borne by Greeks. However, the nationality of the Opposition Front Bench is not Greek; therefore he need not fear it.
I could not have made myself clear, or the noble Earl has been misled as to the reason for my amendment and thinks that it is unnecessary. I ask him a straight question: regarding children who are brought into voluntary care, does he intend that the local authority shall under this clause be present, be ordered to be present or be expected to be present in respect of a juvenile who is brought before the court and who is in voluntary care?
If the noble Earl believes that that is what the clause means, will he kindly look at the present wording at the beginning of subsection (2)? He will find that it is limited to those,
"for whom a local authority have parental responsibility".
As for those who are in voluntary care, namely those who come under paragraph (b) and are provided with accommodation, the authorities do not have parental responsibility for the children. That is the legal position, as I understand it. So if the noble Earl intends authorities which have voluntary care of the

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children by providing them with accommodation to be covered by subsection (2) he, or the draftsman, has failed in that attempt. We are trying to put the matter right.
It is a straight question: do the Government intend that those in voluntary care should be covered by subsection (2) or not? If the Government do so intend, the wording of the clause is faulty and the amendment puts it right. If the Government do not so intend, I drop my point. But they will have to come back with an amendment at a later stage which provides that those in voluntary care should come within the purview of this subsection.
Earl Ferrers: I thank the noble Lord for making his point so clearly, and for making clear his action. The noble Lord asked whether the Government intend that subsection (2) should include children in voluntary care. The answer is that that is not the intention. Therefore, as I understand it, the noble Lord drops his case.
Lord Mishcon: I hesitate to repeat the words of my noble friend by way of his description of what this clause is in that event.
Earl Ferrers: I hope that the noble Lord will, because it was probably not in legal language and I should understand it.
Lord Mishcon: I shall resist the temptation to repeat it.
As I understand the position, there is no difference between (a) and (b), and therefore the alternative expressed by the word "or" is not intended; the Government do not intend to cover those authorities which provide the young persons with accommodation. If that is not intended, why is the wording of subsection (b) there at all as the alternative to the children who are in care? The alternative is "or is provided with accommodation by them". That is voluntary care. If the noble Earl says that the Government do not intend to cover voluntary care cases, why are those words in? The only words he needs are "is in their care".
The last thing in the world I want to do is to embarrass the noble Earl, and I shall continue to talk if that is of help.
Earl Ferrers: That will be unnecessary. The noble Lord never embarrasses me, or only about once a day.
The noble Lord has drawn attention to a certain point. My understanding is that that point was not intended to be covered, but as the noble Lord is concerned about the matter I shall certainly look at it and see whether the drafting is right or whether it should be improved.
Lord Mishcon: I cannot ask for more. On that understanding I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 agreed to.
Clause 48 [Responsibility of parent or guardian for financial penalties]:
Lord Mishcon Lord Mishcon moved Amendment No. 92:
Page 33, line 19, at end insert:
("(1A) After subsection (2) of that section there shall be inserted the following subsection—
"(2A) In taking the decisions required by subsections (1) and (1A) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

(a) whether the parents have neglected to exercise due care and control of the child or young person and whether any such neglect has caused or contributed to the commission of the offence,

(b) whether it is desirable that the child or young person himself should assume responsibility for payment of the sum,

(c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the sum to be paid by the parent or guardian,

(d) the respective means of the child or young person and the parent or guardian,

as well as to any others which appear to be relevant".").
The noble Lord said: As the Committee knows, there are very serious implications in this Bill for the parent of a young offender—namely the ability of the court to fine the parent, which can be a very substantial amount within the maximum fixed by the Bill, if the court decides that it is appropriate to do so. To leave the matter there without any guidelines at all as to the circumstances in which the court should penalise in that way a parent who is not before the court as a defendant is a very serious matter. I know that the Committee will have at heart the need to be clear about what we are doing in that regard.
In the amendment we set out what we believe should be inserted in relation to the taking of decisions of that nature. If those guidelines are available we shall avoid the vagaries to which those of us who are concerned with this issue have often drawn the attention of the House; namely, the unfortunate differences that occur in one court as against another. A magistrate or court in one area may well feel that it is sensible and proper to fine a parent in certain circumstances whereas in another area an entirely different view may be taken by the court, since the courts have no guidelines in our primary legislation as to how they should act.
In support of the amendment and the grounds that we have put forward for guidance for the court I should like to refer to a Home Office circular to courts—Circular No. 3/1983 entitled Criminal Justice Act 1982: Sanctions Against Parents and Guardians. Paragraph 3 of that circular contains, in the main, the provisions that we have included in the amendment. As it is not a very long paragraph I should like to place it on the record because it is so important. I ask for the Committee's patience while I read the paragraph. It reads:
"During the passage of the Bill, considerations which might be relevant to the question of whether it would be unreasonable to order payment by the parent or guardian were discussed. It was suggested, for example, that regard should be had to factors such as whether the parents had neglected to exercise due care and control of the child or young person"—
the Committee will recognise that language in the amendment—

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"or whether any such neglect had caused or contributed, whether directly or indirectly, to the commission of the offence;"—
again the Committee will recognise that that has been transplanted into the amendment—
"whether it was desirable that the child or young person himself should assume responsibility for the payment of the fine, compensation or costs, or for part of it; the relationship between the child or young person and the parent or guardian, and the likely effect on that relationship of ordering that the parent or guardian pay the sum adjudged; and the respective means of the child or young person and the parent or guardian. The Act leaves the assessment of what was reasonable or unreasonable in the circumstances to the discretion of the court; but the Government believes that considerations such as those mentioned above may well be among I hose to which courts will wish to have regard in coming to their decision as to what constitutes unreasonableness in E particular case".
I cannot do better than to repeat what is contained in the Home Office circular in relation to parallel circumstances to those which we are now considering. I feel that the Committee, and indeed the Government, would not wish to leave that power of the courts without any guidance in primary legislation as to the considerations which the courts should have in mind. I beg to move.
Lord Hylton: I should like to say that Clause 48 is a pretty horrible clause. It goes about amending the Act of 1933 and, in the process, refers to two subsequent Acts. I am quite sure that, if my noble and learned friend Lord Simon of Glaisdale were here, he would demand instant consolidation.
Having said that and referring now to the substance of Amendment No. 92, I believe that four important criteria have been picked out and well explained. I hope that the Government will take them extremely seriously.
9.30 p.m.
Lord Henderson of Brompton: Following the comments of the noble Lord, Lord Hylton, I should like to say that I find Clause 48 difficult to swallow. However, with the proposed amelioration, if that is the right word, which has been introduced by the amendment of the noble Lord, Lord Mishcon, I can just about swallow it, although I would much rather that it did not impinge on juvenile crime legislation at all. It will only exacerbate bad relations between member; of the families concerned, which is the very last thing that we want.
The approach that I should prefer is exemplified by a parent support group. I shall not name the place, but it is a voluntary self-help group, initiated by parents and supported by local social workers. The group was formed by the social workers and parents of children who have been in trouble. They are mainly single parents and the children have been getting into trouble, offending and truanting from school and have become involved in drug abuse and so on. The parents felt that they needed direction and a better understanding of why their children were getting into trouble. They simply did not know and felt that parents who were in a similar position would be better able to help each other than any other scheme which had been devised by social workers or anyone else. The group is able to look at the problems and stress
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that families face when their young people offend and enables families to cope with crises through mutual support.
Is not that the constructive approach? What is likely to be the effect of Clause 48 on the parent support group? It cannot make things better. It can introduce resentment and stress into an already stressful situation. I can only lament that the amendment can do no more than ameliorate a rough and unnecessary provision which has been inserted in the Bill by the Government. I find it difficult to believe that they regard the child as coming first in this and other cognate legislation which is going through at the moment. It will not make the situation better for the child or the parent and, but for the amendment proposed by the noble Lord, Lord Mishcon, I should expect it to be disastrous. I strongly hope that the Government will take account of what the noble Lord said and either accept the words that he proposes or something very like them, because these four principles are needed by the courts if they are to operate the clause effectively.
Earl Ferrers: The amendment would operate on Section 55 of the Children and Young Persons Act, which at present places a duty on the court to order a parent or guardian to pay a fine, costs or compensation imposed on a child or young person if it is decided that a financial penalty is the most appropriate disposal. There is to be a presumption that the court will order the parents to pay, but it does not have to do so if that would be unreasonable or if no parent can be found. In Clause 48 of the Bill we are making certain amendments to Section 55 of the young persons Act 1933, but we have retained the guiding principle that a parent should pay a fine imposed upon a child convicted of an offence unless there are overriding reasons why he or she should not. The purpose is not to punish the parents for their children's misdeeds but to bring home clearly to them the consequences of their children's unlawful behaviour. The implications for the parents themselves should encourage them to take a more active interest in what their children do.
The noble Lord's amendment would dilute that principle and reduce the impact of Section 55 on parents. Before a parent could be ordered to pay a fine the court would in all cases have to think of a number of factors, such as whether the offence resulted partly from a failure to exercise parental care and control and what effect making the parent pay would have on family relationships. The court would have to take a view on those factors and presumably that could be challenged on appeal. What it means is that a number of obstacles would be placed in the way of the operation of Section 55 and the clear principle which it embodies, and the amendment would weaken the existing responsibilities of the parent.
The noble Lord, Lord Mishcon, has quoted from Home Office Circular 3/83 relating to the Criminal Justice Act 1982. Paragraph 3 of that circular suggests, as he pointed out, that the court may well want to take account of certain factors, now produced in the text of the amendment, in deciding whether a parent or guardian should pay a fine imposed on a juvenile. He

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would be the first to agree that there is a world of difference between giving guidance to the courts and requiring them by statute to take account of those and other considerations in every case. I believe that would result in an inflexible approach and a slowing down of justice. That is the reason why we would prefer not to have the amendment which the noble Lord seeks to put into the Bill.
Lord Mishcon: I wish I understood that reasoning because I was anxious to do so, but I cannot. To say in regard to penal measures against people who are not defendants that we give no guidance to the courts of this land, they having been given this power, as to how to deal with matters of this sort is asking for chaos as well as injustice. I say with deep respect to the noble Earl that exactly the same argument could have been used in regard to other measures in the Bill. The Bill lays down criteria which courts must consider when imposing custodial sentences, fixing the length of custodial sentences, passing suspended sentences, imposing community service orders and fixing the size of fines. To leave a huge gap as regards the principle that when dealing with the question whether or not a parent should be fined it is much too much trouble for the courts to go through that list is not an answer which I believe the noble Earl would seriously want to give the Committee. If he seriously wants to give that answer I do not think the Committee will accept it for one moment.
Earl Ferrers: Of course the information was given in all seriousness. What the noble Lord is saying is that there are places in the Bill where the length of the sentence and what you do when you impose a community sentence are spelt out. That is perfectly correct. But he said that we do not give guidance to the courts. One does give guidance. Guidance is given under the circular.
Under the noble Lord's amendment the courts would have to take into account by statute the relationship of the child or the young person with his parents and the likely effect on that relationship of ordering a sum to be paid by the parent or guardian. If they came to a certain conclusion, the defendant would be able to appeal against it. That is far more difficult to write down as a statutory obligation than it would be to have under guidance. For many years courts have had the power to require parents to pay fines and been guided by the information which the Home Office circular has given.
The noble Lord seeks to put that guidance as a statutory obligation. I suggest that such things are not very easy to have as a statutory obligation against which people could appeal.
Lord Harris of Greenwich: If one wanted to take that argument seriously not only would the examples given by the noble Lord, Lord Mishcon, obviously have been withdrawn from this Bill but so would provisions such as the Bail Act and a whole series of items. If one were to take seriously the flexibility argument, that would not have been done.
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No doubt it is true—and certainly it is true of this particular debate and arguably this Government—that when the word flexibility is mentioned one begins to be suspicious. One is suspicious because it is constantly used by governments of different political persuasions to resist amendments of the kind produced by the noble Lord, Lord Mishcon, which would give specific guidance to the courts. The fact of the matter is, as those of us who have spent any time in a juvenile court will know perfectly well, that there can be a situation where a member of the family appears and a rather frightened parent appears with the child. It represents a family crisis. What will happen if we pass this clause unamended is that there will be still more disruption within the family. One thing of which one can be quite certain is that if this clause is passed unamended, there will be appalling situations in some of those families. Children will be ejected from their homes. That is in no sense an overstatement of the position.
The fact is that the noble Lord, Lord Mishcon, rightly drew attention to the Government's circular of 1983. It seems to me that the language in that circular gives valuable guidance to the courts. The circular does not try to imprison the courts in highly restrictive language. It enables Parliament to give guidance to the courts as to how this matter should be handled.
The Government have said that they attach very high importance to the issue of family relationships. We heard that from the lips not only of the former Prime Minister but from many other Members of the Government. I can think of nothing that will do more damage to family relationships than provisions of that sort. It seems to me that the noble Lord, Lord Mishcon, has put before the Committee a perfectly reasonable formula whereby the courts will be given guidance by Parliament as to how they want this matter to be approached. It would be an enormous pity if we do not incorporate the language of this amendment in the clause.
Lord Hylton: The noble Earl, Lord Ferrers, mentioned the possibility of a circular of guidance to the courts. If he could say that in this case there will be such a circular and that it will incorporate the four paragraphs (a) to (d), that might give grounds for withdrawing the amendment. It might also overcome the point which the noble Earl himself mentioned of appeals from the first court to a superior court.
9.45 p.m.
Earl Ferrers: The noble Lord, Lord Harris, said that the courts needed guidance. Up until now the courts have had guidance. The noble Lord, Lord Mishcon, wishes to put that guidance in statutory form. It has not been in a statutory form heretofore because there has been guidance and it has worked. We believe that it should be in the form of guidance and not in the form of a statutory injunction, if one might so call it.
The circular will be considered and will no doubt be updated. I cannot tell the noble Lord what will be in it. However, I have no reason to believe that it will not contain the very points referred to in the amendment.

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We should not be misled. We come back to the matter discussed earlier: whether it should be in the form of guidance, which is more flexible—to use a word which the noble Lord, Lord Harris, does not like—or whether it should be in the form of a statutory requirement. I believe that it is better in the form of guidance.
Lord Mishcon: I intend to be brief because the Committee has been extremely patient. However, it is a terrifically important matter. We are dealing with penalising those who appear before the court not as a defendant but as a parent of a defendant.
Members of the Committee who try to study the problem may be prepared—the noble Lord, Lord Hylton, was not so prepared—to say that in some cases it is admissible to make such a provision. I do not say that the power has not existed in the past. I merely say that it is a novel concept. When Parliament takes the responsibility for saying that that novel position shall obtain—namely, penalising those who are not before the courts as defendants—then Parliament has a responsibility to state in legislation the cases that it has in mind, without in any way saying that the court must be limited to those considerations—and one adds the words "and any other relevant consideration that the court may think appropriate". But those matters which Parliament and the Home Office have considered as being material should be there in the legislation.
The noble Earl seems to greet with apprehension the possibility that someone might be able to appeal against a court decision on the grounds that certain considerations were not taken into account. With respect, that is again a novel concept: that we are anxious to stop people from appealing against penalties, again, as I said, especially when the penalisation of those people is not against them as defendants but because of other considerations. I am not frightened by a right of appeal. I should have thought without a doubt that the right of appeal ought to be there.
The hour is late, the patience of the Committee is great and the courtesy of the Minister abundant. Taking all those matters into consideration, if the noble Earl would indicate that he will take into account this important debate and consider putting such provision into legislation, without undertakings of any kind, I should be prepared to withdraw the amendment. But I stand firmly by the need for it.
Earl Ferrers: I understand the noble Lord's anxiety, which he puts with great force and clarity. He said that it was a novel concept. However, in this case novelty goes back to 1933. It does not seem to me novel if it goes back nearly 60 years. Of course I shall consider what has been said. I realise that the noble Lord and other Members of the Committee feel strongly about the matter. I shall think about what has been said and consider the position.
Lord Mishcon: I am grateful to the noble Earl. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Skelmersdale): If Amendment No. 92A is agreed to I cannot call Amendment No. 92AA.
Baroness David Baroness David moved Amendment No. 92A:
Page 33, line 20, leave out subsection (2).
The noble Baroness said: I shall speak also to Amendment No. 92B. Clauses 47 to 49 contain provisions relating to responsibilities of a parent or guardian. Clause 48 amends the 1933 Act which contains powers allowing a parent or guardian to be ordered to pay a fine instead of a child or young person. Clause 48(2) inserts a new subsection into Section 55 of the 1933 Act. Its effect is to put a social services authority in the same position as a parent or guardian in relation to a child or young person in the care of the authority and provided with accommodation by that authority. I submit that that is not reasonable. The Association of County Councils looks on the new provision as unacceptable.
The proposal to make local authorities responsible for the fines of young offenders under the age of 18 in their care appears to go against the grain of the philosophy behind the Children Act 1989. A local authority will consider receiving into its care only a child or young person who represents the most challenging of cases. It will resort to care only once all other available options have been tried and failed. Therefore by their very nature the young people in question will have a number of problems of which offending will be only one. The prospect of many of those children and young people ceasing to offend as soon as they enter care is remote. The fining of the social services authority in such circumstances appears to be inappropriate and positively harmful in relation to a programme of care and rehabilitation.
The ACC has invited the Department of Health and the Home Office to indicate the justification for the inclusion of this novel provision. Significantly no response has been received to date. The holding of a social services authority responsible as a parent or guardian is a precedent which is not logical to adopt when the Home Office is not responsible for offences perpetrated by prisoners in its care, on bail or on parole. If Clause 48(2) is appropriate, it would also seem logical to hold magistrates responsible for offences committed by alleged offenders to whom they grant bail.
As regards social services authorities, civil remedies are at present available in respect of third party claims against children and young people in care. Justification for the liability contained in Clause 48(2) is therefore by no means clear. I hope that the Government are prepared to think again about the clause. I agree entirely with the comments made by the noble Lords, Lord Henderson and Lord Mishcon, in respect of the earlier amendment.
I must repeat that it is unreasonable to expect local authorities to pay and it would in the end be counter-productive. I am glad to have the support of the noble Baroness, Lady Faithfull. My noble friend Lord Richard has tabled an amendment which combines our Amendments Nos. 92A and 92B with

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the obligation to be put on parents. I am in total agreement with his amendment but shall leave him to make his case. I beg to move.
Baroness Faithfull: I rise to support the noble Baroness, Lady David, in this amendment. Children come into the care of local authority social service departments through two routes. One is voluntary care. The parent asks for the child to be taken into care usually for a good reason—perhaps the parent cannot manage the child. Secondly, cases are committed by the courts to the local authorities, very often because the child is beyond parental control.
I had a very difficult case. I recommended to the court that the child should be sent to a penal institution because I recognised that the child was very difficult. The magistrates thought that it would be good for the local authority to be responsible for the child. Therefore, by order of the court it was my responsibility to look after the child. He was very difficult, had a shocking home background and was extremely unhappy. It is impossible to reform a child within two days of him coming into care. On the third day he slipped out of the children's home late at night and burnt down his school. The education officer rang me the next day and said, "If one of your children is going to burn down a school, could he burn down an old one instead of a new one?"
Under this Bill the local authority would be responsible for that child burning down that school. That is quite unreasonable. First, the child was committed to the care of the local authority by the court; and, secondly, it was impossible to reform the child within two or three days. A child is committed to the care of the local authority either by the court or by parents asking the local authority to take a child into care. Therefore it is quite impossible for local authorities to be responsible financially for the misdemeanours of the children in their care.
Lord Mishcon: Perhaps it may be for the convenience of the Committee if I speak to Amendment No. 92AA. The Committee will see that this amendment makes it quite clear that in relation to a child or young person who is being looked after by the local authority, an order under Clause 48 may not be made against the parent or guardian or local authority.
I believe that earlier the noble Earl quoted a case called Leeds City Council v. West Yorkshire Metropolitan Police. Whether or not he did, that case was decided under Section 55 of the 1933 Act to which we have referred quite often in our proceedings. That said very clearly that the fining under that 1933 Act was aimed at an individual and not at a public body or its agents such as foster parents. Therefore until this clause is put into the Bill, as I understand it, local authorities could not be penalised in the way in which we are penalising them now.
Sometimes legislation is put forward by those who have no intimate knowledge of the circumstances but to whom it looks like good law. If it looks like good law and it is possible to go for a local authority or parent where the child is being looked after by a local
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authority, why not do that? If parents are to be penalised generally, why should that not apply also to the local authority?
That this sort of legislation may be put forward by those who have no intimate knowledge of what really goes on is a relevant consideration this evening as regards this amendment. Anyone who knows anything about the situation in some of our juvenile courts knows perfectly well that there are some courts where it is known that there is almost an open feud between the magistrates and the social workers. To the Government's credit, they are doing everything they possibly can by persuasion to remedy that. I am sure that in this legislation they are trying to see that those relationships, which should be much better, between courts and social workers are fundamentally improved. I cannot imagine an improvement coming out of the provision with courts being able to fine local authorities in that way.
Another real life situation relates to whom the Government think they are punishing. If local authorities feel that there is a possibility of being fined, they will not use their powers to look after young people. They will say, "This chap looks as though he might be a risk. Therefore we will see that greater use is made of secure accommodation in his case. We cannot face our local committee and say that we have been fined, so we will not take the chance".
Whom do the Government think they are punishing? Do they believe that the juvenile offender will say, "My word, what a dreadful thing I have done. The local authority has to pay a fine for my conduct. It is dreadful. It will really make me reform"? The average juvenile offender will laugh his head off at the fact that the local authority, which he unfortunately often regards as an enemy rather than a friend, must pay his fine. He will rejoice. He will say, "They have made the local authority responsible for what I have done. What a jolly good thing that is".
Is that the situation we want to procure? I repeat, it is a provision which does not look at the reality of what occurs in these circumstances. I think the Committee will, and I hope that the Government, on reconsideration, will agree to the amendment.
10 p.m.
Earl Ferrers: I always thought that if I were to become involved in a tangle with the law—God forbid that it should ever happen!—there is nobody I should like better to defend my case than the noble Lord, Lord Mishcon. He makes arguments enormously attractive, and he makes it seem so obvious that he must be right. However, although he often is right, he is not always right. There is sometimes another side to the argument which gets lost in his rhetoric.
The purpose of Section 2 of Clause 48 is to bring local authorities within the scope of Section 55 of the Children and Young Persons Act involving the parental payment of children's fines. I know that the noble Lord, Lord Mishcon, does not like that, but that is the purpose of it: to try to make parents responsible for what their children do. As I explained in an earlier

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amendment, it is not a question of making the parents pay the fine for what their children do; it is to make the parents responsible for what their children do.
Section 4 provides for how a compensation order or fine imposed in such a case is to be calculated. We should be clear that Clause 48 will apply to local authorities only in certain restricted circumstances. Not only must the local authority have a general duty in relation to the juvenile by receiving him or her into their care, but they must also assume parental responsibility by virtue of a care order or emergency protection order. That gives them all the rights, duties, powers. responsibilities and authority which, by law, a parent has in relation to a child.
The noble Baroness, Lady David, said that the Home Office is not responsible for prisoners, and she asked why local authorities should be responsible for people under their control. The Home Office does not have parental responsibility for prisoners in this respect. It is only when the local authority takes on to itself the responsibilities of a parent that we believe it is right that they should share the responsibility for the children under their control which normal parents have for a child under their control.
The idea of parental responsibility entails an active interest in what a child or young person is doing. We take the view that those with parental responsibility must expect to face the consequences of what their children do and of their children's misbehaviour. If the important function of exercising parental responsibility falls to a local authority rather than to the parent or guardian, then the local authority should be liable to pay fine under Clause 48.
Some have argued that it would not be right to make the local authority pay a fine if a mischievous juvenile in care committed a crime because he wanted to cause trouble for the authority. Some have also argued that this would result in individual social workers being fined. The court would be able to waive the local authority's financial obligation if it is satisfied that it would be unreasonable to make it pay. The position in law is that the local authority and not the individual social worker would be liable to pay any fine which was imposed. Removing subsections (2) and (4) would have a number of unwelcome effects. It would dilute the meaning of parental responsibility which the local authority had assumed for the juvenile.
It is right that the social services department should take a close interest in what the juvenile is doing. Requiring the local authority to pay a fine resulting from a juvenile's misbehaviour emphasises that responsibility. It will make those responsible for the offender particularly diligent in trying to stop the juvenile committing crime. We seek to improve the present arrangements whereby victims are effectively deprived of compensation. Juvenile offenders in care will probably not have the means to pay realistic amounts of compensation. Under the Bill the youth court will be able to make a compensation order for up to £5,000 against the juvenile offender for personal injury, loss or damage resulting from an offence.
If the juvenile lives at home and his parent has responsibility for him, the parent may be asked to pay,
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although the court would obviously have to take into account the parent's means. If the juvenile is in care no one could be asked to pay. The victim can be properly compensated in the first case but not in the second. In other words, if, for example, his property was burnt down by a juvenile who had a fairly wealthy parent, the victim could expect to be compensated. If he had his property burnt down by a juvenile who was in the care of a local authority, under the amendment proposed by the noble Lord, Lord Mishcon, the victim would not receive any compensation.
The effect would be to ensure that neither the parent nor the local authority would be required to pay a fine imposed on a juvenile who was being looked after by a local authority. That makes the situation even worse. The amendment does not make clear who, if anyone, would have parental responsibility in such cases. The victim would probably not receive compensation to which he or she was entitled. I know that the idea of making parents responsible for their children and what they do through misbehaviour is not one that is necessarily attractive to the noble Lord, Lord Mishcon, but, if one accepts that that is the philosophy behind the Bill, then it is only reasonable that it should apply also to the local authority which has parental responsibility over the child in its control.
Baroness Faithfull: Perhaps I may ask my noble friend two questions. He said that the local authority takes unto itself responsibility for children. It does not take unto itself responsibility for children: it has responsibility for children by statute. Furthermore, a proportion of those children are in voluntary care, the parents having asked for the children to be taken into care. What is much more difficult is that the court has committed children to care and the local authority cannot refuse to accept them. It is an obligation incurred under statute.
A number of local authorities accept children into care, or have children committed to their care, but find that they have no suitable accommodation for a particular child. They therefore apply to a voluntary organisation, such as Barnardo's, the National Children's Home or the Church of England Children's Society, for a vacancy in one of their homes. The local authority then pays the voluntary organisation and the child is transferred to a home run by it. If the child then does damage, who is responsible under the provisions of the Bill? Is it the voluntary organisation by which the child is being looked after on behalf of the local authority or is it the local authority? If Barnardo's or any of the other voluntary organisations thought that they would be responsible I do not believe that they would accept the child.
Earl Ferrers: I dare say they would not. My noble friend said that some parents ask for their children to be taken into care voluntarily. That is perfectly true and I quite understand it. However, if local authorities are asked to take children into care voluntarily they very often do not assume parental responsibility at the same time. It is only when they do assume parental responsibility that this will actually operate.
My noble friend's second point concerned the local authority which takes a child into care but states it

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does not have sufficient provision for the child and therefore gives it over to Barnardo's. That is somewhat less easy. If the local authority has the parental responsibility for the child then it will be responsible. If it then places the child in a Barnardo's home it presumably does not transfer parental responsibility to the Barnardo's home. The local authority still retains responsibility. It is only in the case where the local authority retains parental responsibility that the provision operates. It operates on the child irrespective of where the child happens to be.
Baroness David: That seems a most ridiculous answer. It really does. I was going to make some of the points which the noble Baroness, Lady Faithfull, made about children being committed to care. Local
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authorities do not choose to have that responsibility put upon them—they have it thrust upon them. The Minister has shown very little understanding of what it is like in the social services. It is quite different from what he seems to think. It is most unfair to put this burden on to them. After all it will be the taxpayers or the local community charge payers who pay the fine. There is little enough money for the social services to do what they have to do.
I hope that the Minister will think again about the whole of Clause 48. The least he can do is to provide some criteria. If it were not so late at night I should be tempted to divide the Committee. I shall have to save it up for another time, perhaps a better time of day. This whole clause is totally misconceived. In the meantime I shall withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 92AA:
Page 33, leave out lines 22 to 33 and insert:
("(5) In relation to a child or young person who is being looked after by the local authority, an order under this section may not be made against:

(i) his parent or guardian, or

(ii) the local authority.").

The noble Lord said: I share with my noble friend Lady David disappointment that important matters of this kind—I do not blame anyone for it—seem to come up at a very late hour. They come up in a diminished Chamber—I always try and say this so as not to be too unpopular—diminished only in quantity and not in quality. It is so disappointing when the arguments go all one way and there is no argument against an amendment to find that, because of the lateness of the hour, it is quite impossible in practice to put the matter to the Chamber.
It is in that spirit, which is exactly the spirit of my noble friend, that I ask the Minister to consider what has been said and to balance, if he will, the evils that would result from this clause against the benefit to the victim that he was telling the Committee about. I hope that that reconsideration will lead to an agreement in regard to the amendment. I do not propose to move it.
[Amendment No. 92AA not moved.]
[Amendment No. 92B not moved.]
Clause 48 agreed to.
Clause 49 [Binding over of parent or guardian]:
Lord Skelmersdale: I have to inform the Committee that, if Amendment No. 93 is agreed to, I cannot call Amendments Nos. 93A and 94.
Lord Mottistone Lord Mottistone moved Amendment No. 93:
Page 34, line 13, leave out from ("offence") to ("the") in line 17 and insert ("the court by or before which he is so convicted may exercise the powers conferred by this section if satisfied that it would be reasonable to do so given").
The noble Lord said: This amendment has been grouped with Amendment No. 94. However, I shall speak only to Amendment No. 93. Clause 49(2) gives the court a duty to exercise powers with the consent of the parent or guardian—it states that the parent or guardian should,
"enter into a recognisance to take proper care"
of a child under the age of 16 years—or, if such consent is refused,
"and the court considers the refusal unreasonable"
the court may order the parent or guardian to pay a fine of £1,000. In my view the wording is very strange, although that is often the case in such Bills. It is one thing to say that you will obtain the consent of parent or guardian and quite another then to say straight away that a penalty applies in the case of consent being refused. However, that is by the way. In effect, the clause makes it the duty of the court to bind over parents as regards responsibility for their children, whereas my amendment would remove that duty and turn it into an option.
I have been advised on this amendment by the Magistrates' Association. The association has extensive experience in juvenile courts throughout the country. That leads it to feel great anxiety about the
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present wording of Clause 49(1). Magistrates already have the power to bind over and they wish to retain it, although it is rarely used. Children who appear before magistrates come from families that are already fragile and under stress. I do not believe it to be part of the magistrates' role as sentencers to exacerbate that position by normally—I emphasise the word "normally"—imposing upon parents sanctions with which they may find it impossible to comply. Many of those parents need help and support, not punishment. Binding over parents could result in imprisonment, which would run totally contrary to the philosophy of the Bill.
As magistrates do not have to fine parents if they consider their refusal to consent to be reasonable, I suppose that my noble friend will say that it is an option in that sense. But that puts the courts in a difficult position. No doubt that is what the Government seek. However, it is putting them as courts in a much more difficult position as regards consent by parents in regard to complying with the law than if the existing situation with an option to bind over was to prevail.
It is all very well to say that we must have further ways to make parents take responsibility for their children. But, as the Magistrates' Association has advised me, it is the parents who find it difficult to tackle life and to make ends meet who will be most vulnerable to the provision. If we can, we want to persuade those people to accept the court, if not as a friend, then at least as a body which is very fair. The Bill, as worded, is not totally unfair because there are let-out clauses, but it creates a picture of a harsh court whose duty it is to be brutal if an excuse is not given.
It would be better if this provision were reworded in the way the amendment suggests. We should achieve the same result because the powers will still exist, but the courts would not be put in the position of having to exercise a power which they would find difficult to exercise and which magistrates do not like using in the way the Bill seeks. I beg to move.
Lord Richard: Perhaps I may speak also to Amendment No. 94. We have heard some strange arguments and considered some strange clauses in the course of discussing the Bill. I am bound to tell the Government that this is the silliest piece of legislation and the most arrant bit of nonsense with which we have been presented so far in Committee. What is the object of the exercise? As I understand it, it is to make parents take more responsibility for their children. I do not believe for an instant that we should persuade parents to take more responsibility for their children by having a presumption that if a child is convicted, the parent has to be bound over and that, if the parent refuses his consent to the binding over, he can face a fine of up to £1,000.
I can think of nothing that would be more disruptive of family relations than the automatic nature of what is proposed in the Bill. If the power were discretionary, as it is at the moment, I could understand it. Therefore in suitable and proper cases the court could say, "We think that in all the circumstances of the case it would be right to bind over the parents because there has been an absence of

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responsibility", or "They have ignored the child in the past and have not bothered about what the child was doing, and if there is the goad of the binding over order, they will take more responsibility in the future". But with an approach which, in the words of the clause, provides:
"it shall be the duty of the court, in a case where the relevant minor has not attained the age of 16 years, to exercise those powers unless satisfied that it would be unreasonable to do so, having regard to the circumstances of the case",
I can only say to the Government that they have the presumption totally the wrong way round. The presumption should not be in favour of binding over. It should exist as a penalty which the courts can use in suitable circumstances.
I know of no organization—none that has written to me or about which I have read—concerned with matters such as we have dealing with which has expressed itself as being in favour of the proposal. All the groups which oppose the provision, including organisations representing magistrates—after all they are the ones who have to operate the system—justices' clerks, probation officers, social workers, and resettlement organisations such as NACRO, accept the importance of parental responsibility, as does everyone else, and are actively concerned to find effective ways of reinforcing it. They oppose the measure because they know that in practice it would damage rather than increase parental responsibility. The Times summed up the point in a leading article on10th November 1990 in which it said:
"This is the kind of proposal that makes perfect sense to middle class ministers, who generally leave the taming of adolescence to their children's boarding schools. For, say, the single mother in Brixton, struggling against odds to keep a young person on track, they represent only a threat. Many such parents will be tempted to wash their hands of their responsibilities. Parental influence—the last, best hope of deflecting the youngster from a life of crime—will be removed. The magistrates do not want these powers. Parliament should not force them to have them".
On the face of it, this is a politically motivated piece of nonsense. The only organisation in favour of it is the Government. I hope that the Committee will accept the amendment.
Baroness Seear: I agree with the noble Lord, Lord Richard. Since every known organisation is against this, it would be extremely interesting if the Government would tell us from where this absurd idea came. Whose brain child is it—if "brain child" is the right term?
Baroness Faithfull: Amendment No. 94 is grouped with the amendment moved by my noble friend. It would leave out the presumption in Clause 49 in favour of binding over the parents of juvenile offenders. I shall not rehearse all the arguments put earlier by the noble Lord, Lord Mishcon, and other noble Lords who have spoken in this debate. If parents are to be bound over in this way, I assure the Committee that it will be impossible to work with their families. It is one or the other. If one has a relationship with a family, over the years it is possible to help the parents and children later on to live as a family.
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However, binding over would put paid to that and there would probably be more homeless children than at present.
I hope that the Government will think again about the matter. I assure the Committee that one cannot steamroller over personal relationships. If the Bill has this provision, then personal relationships will go out of the window. If that happens, children will be without a home and without parents interested in them. I hope that the Government will reconsider the point.
Lord Windlesham: I support Amendment No. 94 which will be moved by the noble Baroness, Lady Faithfull, and to which I have put my name. As I understand it, the Government's intention in this part of the Bill is not to punish the parent but to encourage parental responsibility and to strengthen family ties. It rolls well off the tongue, but I fear that the result of the three Clauses 47 to 49 and this clause in particular will be the opposite of what is intended. Many parents will feel that they have been punished and penalised. Family ties will be put under greater stress, causing a deterioration rather than an improvement in relations in the home.
I wish to dwell for a few minutes on the aspect of punishing or penalising parents for acts which they did not commit. The noble Lord, Lord Mishcon, touched on this in an earlier amendment. It is a matter of considerable importance. We should recognise that the provisions sail perilously close to the wind of criminal responsibility. We must never lose sight of the fact that it is the child not the parent who committed, or is charged with having committed, a criminal act. At common law the mens rea that the prosecution must prove the defendant to have had at the time of committing the crime in order to secure conviction requires one of two elements, and two elements only: that there was a direct intention to bring it about or there was recklessness as to whether or not such a consequence might come about. It is crucial to state that this cannot simply be transferred to another person. So the route that has been chosen is negligence or lack of care.
It is too late to go into the history of this ambition, this well worn grail that has been pursued for over 100 years. Just one example is that in this House in 1890 an unsuccessful Bill was introduced, seeking to make general negligence in the care and control of a child a statutory offence for which parents would be punished by a small fine or ordered to pay compensation and subject to imprisonment in default of payment of the fine. That was 101 years ago. The motivation was the same then as it is today. The Bill failed.
As we know, later legislation empowered the courts, where appropriate, to summon a parent to attend the court proceedings, or in certain circumstances to bind over parents to exercise due care and control of their children, but at the discretion of the court. The discretionary power was not widely used because the courts were aware of how counterproductive it could be in practice.
As we have heard, in Clauses 47 to 49 the discretionary powers are replaced by a statutory duty to secure the attendance of parents at court

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proceedings against juveniles below the age of 16 and to bind them over, by entering into recognisance to take proper care of and exercise control over their children, and if there is refusal to give consent-"give consent" are oddly chosen words to use in this context-there is a financial penalty of up to £1,000. If the child re-offends, that recognisance is forfeited to the amount that has been set by the court.
Those provisions must be regarded as penalties of a different order to that which we have seen before. The draftsman, probably acting on the instructions of the Leader of the House (who has joined us for this debate) when he was Home Secretary, has recognised that, because in Clause 49(7) we find an appeal:
"A parent or guardian may appeal to the Court of Appeal against an order under this section made by the Crown Court, as if he had been convicted on indictment and the order were a sentence passed on his conviction".
So this is now appealable by statute, or would be if this clause went on the statute book.
There is much more to be said about the social impact in the family of this provision. I shall not repeat what has been said by my noble friend Lady Faithfull and others. I would only say to my good friend on the Front Bench whom I so much admire, the noble Earl, Lord Ferrers, who has been handling this Bill with such care for the Government, that although he remarked-not reading from his brief but speaking for himself-in reply to the noble Lord, Lord Mishcon, that the aim of this part of the Bill is to make parents or local authorities acting as guardians take responsibility for the wrong-doing of their children, the criminal law is not an instrument that can achieve that end.
Lord Hutchinson of Lullington: I should like to ask whether the Government have taken into consideration a point made by that highly practical organisation, the Justices' Clerks' Society, that these provisions are going to add to the congestion in the courts. A bind-over has always required the person's consent. Here such consent is simply a mockery because there is a fine if there is no consent. The result will be protracted hearings in the court when parents refuse their consent. There will also be protracted hearings as to whether the parent should have the recognisance forfeited. In addition, as the noble Lord, Lord Windelsham, has pointed out, there will be further appeals after those protracted hearings. Quite apart from all the points which have been made already, this is an absolutely crazy provision from the purely practical point of view of adding to the congestion of the courts.
I hope that the noble Earl will spell out to the Committee how it is that every single organisation involved at the coal-face is profoundly against this provision. Why is it? Have they all gone completely mad? I hope that he will point out why each and every one of them is wrong.
Baroness Faithfull: Before my noble friend replies perhaps I may ask one question. As my noble friend Lord Windlesham said, there will be a right of appeal. Will a woman living in one room in a high-rise block of flats receive legal aid in order to appeal?
Viscount Tenby: I should like to speak very briefly in support of Amendment No. 94 and of the remarks made by noble Lords and the noble Baroness earlier. In particular, because he was the last person to speak before me, I should like to support the noble Lord, Lord Hutchinson, who spoke about the amount of time that these new provisions will add to the magisterial system. I speak as a magistrate, and I can assure the Committee that it will indeed increase considerably the workload of magistrates' courts.
I fear that these provisions to compel parents to be responsible for their children's behaviour are in danger of being non-runners in the practical world in which judges, magistrates, probation officers and social workers have to work. We all agree in theory that parents should be made responsible for their children's behaviour. Indeed, for some parents of means who conspicuously refuse to accept their responsibilities it may be that the law has a role to play. However, the overwhelming number of families with which the lower courts have to deal are not in that category. They are disorganised, disadvantaged and in many cases despairing. Very many are one-parent, inner city families where family ties are fragile and under constant pressure. No measures are more likely to put those ties under strain than these.
I should like to remind the Committee that, as has already been said, magistrates already have power to require parents to attend courts and can take other actions as necessary. But such power is used sparingly. We ought to ask ourselves why it
is used sparingly. Why do magistrates not make more use of that power? First, such action increases considerably the length of the proceedings, as the noble Lord, Lord Hutchinson, said. Secondly, it puts in even greater danger what may already be a fragile human relationship. Thirdly, the creation of such a grey area, though perhaps not altogether unwelcome in some legal circles, will increase uncertainty, and uncertainty is bad law.
So far as concerns the provisions of the Bill I accept that benches will have the power to proceed or not according to the defendant's circumstances and that no recognisance will be surrendered or fines imposed on parents without means. That was patiently and courteously made plain to me by the noble Earl the Minister in correspondence. However, I suspect that the majority will be people without means. So why are we going through all this emotional turmoil with no tangible and measurable end product in view and when the operation of such clauses will undoubtedly in some cases result in children leaving home—let us be quite frank about this: it will—or parents cutting themselves off from children in trouble who desperately need such a link?
We all deplore the collapse of responsible parenthood in modern society. Some, though perhaps not enough, deplore adultery as well. However, provisions against that in a Criminal Justice Bill would not, I suspect, get very far. The fact is that to legislate against social behaviour and certain aspects of the moral condition is fraught with dangers, apart from, as in this case, being rather like trying to put your little finger into a sluice gate to stop the flow of water.

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Times change and people's perceptions of their moral obligations change with them. More could and should be done in the area of education for parenthood, and the courts must continue to exercise sympathetic and helpful control in that area. But that is the way forward. I have yet to speak to a magistrate or a probation officer who believes that the proposals will bring anything but heartache and muddle and that they will in effect be largely unworkable.
Lord Hylton: A great deal has been said about the amendments. I should like to support the general thrust of both of them and underline what my noble friend said about disorganised families. There is plenty of evidence to show that the majority of children and young people who come before the courts come from disorganised backgrounds.
That evidence takes many forms. The relationship between the parents may be rocky or non-existent or they may be totally separated or divorced. The relationship between the parents and the young person may be damaged and non-functioning in varying degrees. It is highly probable that the child or young person will have failed to get the benefit from education and schooling which one would normally have expected. There is a great deal of probation evidence on that point. By the time one reaches the point of a conviction—perhaps even a first conviction—the situation has probably gone too far and the intervention of the court will come too late. I ask the Government to think again on those grounds.
Earl Ferrers: Many points of anxiety have been raised this evening and I quite understand them. I see that the provision may well cause distress, concern and sorrow in various cases, but we must look back and think, what is the reason for the provision? The noble Baroness, Lady Seear, asked who thought of the idea. I disclaim personal responsibility, but the Government have considered the idea for this very reason: we have all been concerned over the years at the increasing number of crimes, including crimes of violence and theft from property and people. It is a pretty amazing fact that the peak offending age is in the teens.
Too often people have said, "What are we going to do? Nothing has been done. The youth was taken to court and nothing happened". Parents have often seen their children go to court and said, "That's little Tommy, it's his responsibility. It's nothing to do with me". Parents have a responsibility to look after their children. As I said earlier, the proposal was considered desirable, not to punish the parents, but to inculcate a little more responsibility on the part of parents for what their children, many of whom are in their teens, do. It is not always good enough for parents to say, "That's what little Tommy has done. It's up to him. It's nothing to do with me". Parents have a responsibility and, if they do not have it, they should have.
That is the background to the proposal. We hope that such a provision will encourage parents to take care and notice of what their children do, not just from a moral point of view, but because children's actions
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affect other people, perhaps offensively and harmfully. It is always possible to take a case at the far end of the spectrum and say, "What about the single-parent family living at the top of a block of flats in Brixton who has a hulking great youth of 15 and cannot do anything about it?". Of course there are cases like that.
My noble friend Lady Faithfull asked whether people who are bound over and forced to forgo their recognisance can appeal against the decision and obtain legal aid. In principle, they can obtain legal aid. The legislation allows it and it is for the magistrates to decide. In all the binding over provisions they will always exercise their powers unless the court is satisfied that it would be unreasonable to do so. The court will take into account the points that have been considered this evening as part of the reason for deciding whether the parents should be bound over.
The noble Lord, Lord Hutchinson, and the noble Viscount, Lord Tenby, say that that will clog up the courts. I have no doubt that if a lot of cases came before the courts it would add to the work of the courts. Whether or not it would clog them up is a matter for speculation. One thing which clogs up the courts is a lot of offenders committing offences where at the moment there appears to be very little responsibility. I will not deny that this would add to the work of the courts, but if we are not prepared to go along this sort of track, to a certain extent we are washing our hands of part of the problem. Both amendments would remove from the Bill the duty which Clause 49 places on the court to bind over the parent or guardian of an offender aged 10 to 15, unless it would be unreasonable to do so. In place of that duty the court would simply have a power to bind over parents and guardians to take proper care and exercise proper control over offenders aged 10 to 17. I think that would weaken the provision in Clause 9. We are not saying that the parents of an offender under 16 must be bound over in every case, but we are changing the presumption. The noble Lord, Lord Richard, does not like the change in presumption, but at present parents will be bound over only if there is a specific reason to do so in the case in question. Therefore, the presumption is against binding over. We think the presumption should be in favour of it.
In cases involving offenders aged under 16 the Bill requires the court to bind over a parent or guardian unless that would be unreasonable in the case in question. Children and young persons under 16 cannot be expected to take full responsibility for their actions. Their parents should, and in most cases do, exercise some influence over their behaviour. Parents and guardians have an important role to play in teaching their children to know the difference between right and wrong and to respect other people and their property. As we all know only too well, if they neglect their responsibilities their children may well fall into crime. If that happens the courts should in our view bring home to parents or guardians in a real way the consequences of their neglect. The prospect of being bound over should encourage them to take a greater interest in what their children do.

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Responsible parents have nothing to fear from these provisions. Nor does Clause 49(1) pose a threat to those simply unable to exercise proper care and control - for example, if they are in hospital - since it does no: require courts to exercise the power to bind over if would be unreasonable to do so. We are not requiring the courts to exercise their binding over powers in cases involving offenders aged 16 to 17. It will be rip to the discretion of the courts to do so. Those young people are at an intermediate stage between childhood and adulthood. Some will be mature enough to take responsibility for their actions, others will not. I agree with the amendment to leave the courts with a discretion in those cases.
For offenders under 16, we believe the courts' powers need to be strengthened in the way suggested so that the presumption is changed from being against binding over to being in favour of it.
Those are the reasons that we have included these clauses ill the Bill, and I do not think it unreasonable, particularly in view of the amount of concern expressed over offending by young people.
Lord Richard: Before the Minister sits down, perhaps I may put to him two points. He is not strengthening the powers of the courts at all. He is not even altering the powers of the courts. He is telling the courts the way in which they must exercise those powers. That is entirely different.
The courts already have powers to bind over, as he knows. The presumption now is that one binds over "unless", which is a totally different situation from the present one. Let me put to him the fact that in 1989 40,300 juveniles were convicted of offences. If there is a similar figure for 1990 and 1991, how many binding over orders does the noble Earl think will be made when the presumption is now in favour of making them unless it is unreasonable to do so? We are talking in terms of tens of thousands of binding overs. If the noble Earl believes that the courts can cope with that situation without any undue difficulty, I can only say that he does not know much about the way in which the courts work.
Lord Harris of Greenwich: I return to a point that I made earlier. What exactly do the Government believe will happen to a family in a deep sense of crisis following a child of that family getting into trouble with the police? Do they not recognise that in many underprivileged households, and possibly others too, the likelihood is that some of those children will be expelled by their parents from their homes. It is sheer humbug for Ministers to go around saying that they believe that theirs is the party of the family when they are prepared to contemplate an absurdity of this sort. The noble Lord, Lord Richard, has rightly said that the implications for the courts are massive if that particular requirement is to be followed, as I suspect it will be in a substantial number of cases.
The question asked by my noble friend was: who exactly is in favour of this measure? It is quite obvious that no o le in this Committee, apart from the noble Earl, Lord Ferrers, is in favour of it. We have still to hear from anyone who is prepared to stand up and say that this is an admirable idea. Not a single voice has
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been heard in favour of this proposition. I see that the noble Lord, Lord Elton, is about to rescue the Minister from his position. Up to now he has said nothing, but I welcome his intervention.
Lord Elton: I rise with great diffidence. I do not believe in joining in debates of which one has not heard the beginning or in which the temperature has risen to such a level that one would have wished to have spoken before.
I must point out that two years ago I chaired the inquiry into discipline in schools. Among teachers there was a real concern to find some means of involving the aid of parents in the management of the behaviour of their children when they were in the school and away from home. I do not say that teachers ask for this measure; nor will I analyse it in detail since that has already been done, although I see that there is an escape clause for courts where it would be unreasonable to exercise the power which they are otherwise required to exercise on children under 16. But having heard the noble Lord, Lord Harris of Greenwich, say that not a word has been spoken in favour of the measure, I believe that it would be unjust not to reply that there are some people who are concerned with children who want something like it.
Lord Hutchinson of Lullington: Can the noble Lord, who has very great experience in this area, explain to the Committee why every single organisation involved in these matters is against this measure, and profoundly against it? We have not heard from the Minister, although he was invited to give the Government's view. I do not know whether the noble Lord, Lord Elton, would have a view as to why every single organisation is against this idea. There must be some reason for it.
Lord Hylton: In partial reply at any rate to the noble Lord, Lord Elton, is not the answer to the problem that he was raising a very much greater expansion of parent-teacher groups and associations? That is the classic kind of instrument in this type of case, particularly in the inner city and places where such things do not normally happen very much. To carry that point a little further, surely we need the kind of mutual support groups between parents which my noble friend Lord Henderson advocated a little earlier rather than this attempt to legislate and impose new duties on the courts.
Lord Elton: I was not embarking on advocacy; I was stating a fact. Perhaps I should state it more clearly. The committee over which I presided asked the Government to look into the possibility of making parents responsible—I believe that "vicariously" was the word that we used—for certain kinds of behaviour in school. We asked them to consider the matter. Whether or not this provision is the result of that request, I do not know. I do not believe that I ought to analyse what is needed for the reform of our schools at this time of night, a subject on which I could speak happily for an hour and a half.
Baroness Seear: My noble friend Lord Harris was in the middle of a sentence when the noble Lord, Lord Elton, intervened. He might at least be allowed to finish his sentence.
Lord Harris of Greenwich: My noble friend, as always, is extremely generous. I was coming to the conclusion of my remarks. The noble Lord, Lord Elton, was not quite so much help to the noble Earl, Lord Ferrers, as I suspected that he might be. He told us that under his chairmanship teachers had been worried about the matter, in particular in schools. I am sure we all share their concern.
The question before us is wholly different. Those Members of the Committee who have been present throughout the debate have noticed that no one has risen to support the proposals of the noble Earl. That is not altogether surprising given the fact that not a single organisation in the criminal justice area has done other than oppose the Government's proposals. Who knows the problems associated with crimes by juveniles? The Magistrates' Association and the justices' clerks are firmly opposed to what the Government propose. We have asked the Government—unhappily, we have not so far received a response—what organisation they can name which wants this provision? Is there a single organisation? I think that the noble Earl, Lord Ferrers, owes us some explanation on that.
Such a provision, which has the potential to create massive problems for the courts, and can lead to a situation where almost inevitably children will be expelled from their own homes by their parents, could hardly do more damage to family life.
Lord Mottistone: We were debating my Amendment No. 93. Noble Lords have talked for far too long on the subject. It is quite simple. I do not believe that the Government have given us a satisfactory answer. However, I do not think that it is so important as to be dealt with at this stage of the business of the House. As noble Lords have made clear, the issue affects the courts, and how they view the matter. The ordinary person who will be affected by the provision by being bound over will not read the legislation, nor understand it if he does, in particular when one considers the convoluted way in which the relevant subsection is written. It will make no difference to him.
I suspect that it is gross exaggeration to say that it will make extra work for the courts. I believe that the courts, as usual, will act sensibly and take advantage of the escape part of the clause. However, I believe that the Government are unwise to persist in their view that this will make any difference to the juvenile delinquency situation. It is probably a mistake to be quite so persevering.
In my view the best course is to bring the matter back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 93A:
Page 34, line 14, leave out from second ("by") to ("and") and insert ("which he is sentenced for that offence").
The noble Earl said: I speak also to Amendment No. 94A. Clause 49 places a duty on the court to bind over the parent of an offender under the age of 16 in every case except where the circumstances of that case mean that it would be unreasonable to do so. Where the offender is 16 or 17, the courts are not required to bind over the parents but they have a power to do so where they consider this appropriate.
Clause 49 allows the courts to bind over parents for up to three years. During such a period family circumstances may change. For example, it is possible that a child whose parents are bound over when he or she is 14 or 15 and still at school may leave school, get married and leave home before a bind-over period of this length has ended. To allow for such changes in circumstances Amendment No. 94A provides the courts with a power to revoke or vary an order binding over a parent if it would be in the interests of justice to do so. The parent or guardian must make an application to the court, and the court must be satisfied that there is a real and relevant change of circumstances. This is I believe a useful addition to the Bill. I am grateful to the noble and learned Lord, Lord Donaldson of Lymington, for drawing my attention to the need for such a provision.
Amendment No. 93A is a technical amendment. I beg to move.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 94:
Page 34, line 14, leave out from ("convicted") to end of line 18.
The noble Baroness said: The amendment has been debated but I am not happy about the situation. I shall not move the amendment but bring it forward at the next stage.
[Amendment No. 94 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 94A:
Page 35, line 4, at end insert:
("(8) A court may vary or revoke an order made by it under this section if, on the application of the parent or guardian, it appears to the court, having regard to any change in the circumstances since the order was made, to be in the interests of justice to do so.").
On Question, amendment agreed to.
Clause 49, as amended, agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 94B:
After Clause 49, insert the following new clause:
Remands and committals to local authority accommodation
("—(1) For section 23 of the 1969 Act there shall be substituted the following section—
"Remands and committals to local authority accommodation.
23.—(1) Where—

(a) a court remands a child or young person charged with or convicted of one or more offences or commits him for trial or sentence; and

(b) he is not released on bail,

the remand or committal shall be to local authority accommodation; and in the following provisions of this

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section, any reference (however expressed) to a remand shall be construed as including a reference to a co remittal.
(2) A court remanding a person to local authority accommodation shall designate the local authority who arc to receive him; and that authority shall be—

(a) in the case of a person who is being looked after by a local authority, that authority; and

(b) in any other case, the local authority in whose area it appears to the court that he resides or the offence or one of the offences was committed.

(3) Where a person is remanded to local authority accommodation, it shall be lawful for any person acting on behalf of the designated authority to detain him.
(4) Subject to subsection (5) below, a court remanding a person to local authority accommodation may, after consultation with the designated authority, require that authority to comply with a security requirement, that is to say, a requirement that the person in question be placed and kept in secure accommodation.
(5) A court shall not impose a security requirement except in respect of a young person who has attained the age of fifteen, and then only if—

(a) he is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or

(b) he has a recent history of absconding while remanded to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded,

and (in either case) the court is of opinion that only such a requirement would be adequate to protect the public from serious harm from him.
(6) Where a court imposes a security requirement in respect of a person, it shall be its duty—

(a) to state in open court that it is of such opinion as is mentioned in subsection (5) above; and

(b) to explain to him in open court and in ordinary language why it is of that opinion;

and a magistrates' court shall cause a reason stated by it under paragraph (b) above to be specified in the warrant of commitment and to be entered in the register.
(7) A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, require that person to comply with any such conditions as could be imposed under section 3(6) of the Bail Act 1976 if he were then being granted bail.
(8) Where a court imposes on a person any such conditions as are mentioned in subsection (7) above, it shall be its duty to explain to him in open court and in ordinary language why it is imposing those conditions; and a magistrates' court shall cause a reason stated by it under this subsection to be specified in the warrant of commitment and to be entered in the register.
(9) A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, impose on that authority requirements—

(a) for securing compliance with any conditions imposed on that person under subsection (7) above; or

(b) stipulating that he shall not be placed with a named person.

(10) Where a person is remanded to local authority accommodation, a relevant court—

(a) may, on the application of the designated authority, impose on that person any such conditions as could be imposed under subsection (7) above if the court were then remanding him to such accommodation; and

(b)where it does so, may impose on that authority any requirements for securing compliance with the conditions so imposed.

(11) Where a person is remanded to local authority accommodation, a relevant court may, on the application of the designated authority or that person, vary or revoke any conditions or requirements imposed under subsection (7), (9) or (10) above.
(12) In this section—
'court' and 'magistrates' court' include a justice;
'imprisonable offence' means an offence punishable in the case of an adult with imprisonment;
'relevant court', in relation to a person remanded to local authority accommodation, means the court by which he was so remanded, or any magistrates' court having jurisdiction in the place where he is for the time being;
'secure accommodation' means accommodation which is provided in a community home for the purpose of restricting liberty, and is approved for that purpose by the Secretary of State;
'sexual offence' and 'violent offence' have the same meanings as in Part I of the Criminal Justice Act 1991;
'young person' means a person who has attained the age of fourteen years and is under the age of seventeen years.
(13) In this section—

(a) any reference to a person who is being looked after by a local authority shall be construed in accordance with section 22 of the Children Act 1989;

(b) any reference to consultation shall be construed as a reference to such consultation (if any) as is reasonably practicable in all the circumstances of the case; and

(c) any reference, in relation to a person charged with or convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.

(14) This section has effect subject to—

(a) section 37 of the Magistrates' Courts Act 1980 (committal to the Crown Court with a view to a sentence of detention in a young offender institution); and

(b) section 128(7) of that Act (remands to the custody of a constable for periods of not more than three days),

but section 128(7) shall have effect in relation to a child or young person as if for the reference to three clear days there were substituted a reference to twenty-four hours."
(2) In section 37 of the 1980 Act (committal of young person to Crown Court for sentence)—

(a) in subsection (1), for the words "17 years old" there shall be substituted the words "18 years old";

(b) in subsection (2), for the words "A person committed in custody under subsection (1) above" there shall be substituted the words "Where a person committed in custody under subsection (1) above is not less than 17 years old, he"; and

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

"(3) Where a person committed in custody under subsection (1) above is less than 17 years old—

(a) he shall be committed to local authority accommodation; and

(b) the court by which he is so committed shall impose a security requirement within the meaning of section 23 of the Children and Young Persons Act 1969." ").

The noble Earl said: I shall speak also to Amendments Nos. 94C, 94D, 95BA, 95BB, 95BC and 104BA. I apologise for the length of the amendments and the fact that they were not tabled earlier. They

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fulfil our commitment to improve the statutory arrangements for the remand of alleged offenders who are under the age of 17. I hope that meets with the approval of the Committee.
It has long been recognised that the present arrangements have serious shortcomings. The procedures are complex and confusing. They can lead to unsuitable decisions being made; but, more importantly, they rely on the use of adult prisons for remanded young people who need to be securely held. Despite the best efforts of the prison service, adult prisons are not satisfactory places in which to hold unconvicted 15 and 16 year-old boys. That was proved by the distressing suicide of one such 15 year-old in Swansea prison last summer. The provisions in the amendments before the Committee would mean that the courts would no longer have to rely on using adult prisons for these young people.
In February my right honourable friend the Home Secretary published the consultation paper setting out detailed proposals for reforming the juvenile remand arrangements. The principal objective was to end prison remands for juvenile defendants. We received more than 100 sets of comments on the consultation paper. Almost without exception they warmly welcomed the proposal to end juvenile remands in prison. Views on the other detailed proposals were mixed, but overall the Government's objective of improving the juvenile remand arrangements was supported. The Government have weighed carefully the response to the consultation paper. These amendments give effect to the proposals in the paper taking account, as far as they have been able to do so, of the comments received.
With that brief explanation and considering the hour of the night, I beg to move.
Lord Richard: Grouped with this series of amendments are Amendments Nos. 95ZC and 95ZD standing in my name. It may surprise the noble Earl, but I congratulate the Government on coming forward in this amendment with what we regard as a welcome and substantial step towards eliminating what up to now has been a blot on the reputation of British justice.
Having said that, I am afraid I cannot go much further in congratulating the Government. The need is to see a complete end to the remand of juveniles to adult prisons and remand centres. While the Government are committed to ending juvenile remands in custody eventually, they have not yet committed themselves to a timetable for doing so. They have said that they will end such remands when sufficient local authority secure accommodation is available but have not announced a specific timetable for bringing that about.
In February the Home Office issued a consultation paper on the subject entitled The Remand of Alleged Juvenile Offenders. It proposed to restrict custodial remands in the short term on the lines of these amendments; to establish between 30 and 35 more secure places (that is, beds and not establishments) for
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juveniles in local authority homes over the next four years; and to review the position—not necessarily to end juvenile remands in custody—in four years' time.
What is the scope of the problem with which we are faced? As I understand it, in the 12 months to the end of June 1990, 1,300 boys aged 15 and 16 were remanded to prisons and remand centres. The remanding in custody of girls under 17 ended in 1979, so we are not faced with that problem. The number of juveniles on remand in penal establishments at any one time is much smaller than 1,300. On 30th April 1990, 65 untried and 19 convicted but not yet sentenced boys under the age of 17 were in prisons and remand centres in England and Wales. With numbers of that size surely it should be possible to plan a strategy to end such remands completely much more rapidly than is currently envisaged.
I do not believe that I need to emphasise the difficulties which have arisen and the disturbing aspects of the number of juveniles who continue to be held in penal establishments. The Chief Inspector of Prisons has done that with great force.
At present central government are meeting the revenue costs of keeping juveniles in prison. The London Boroughs Association has contacted me on this matter. It believes that the Government should reimburse local authorities for at least part—and it suggests 75 per cent.—of the revenue costs provided for any 15 or 16 year-old boy who is to be remanded to local authority accommodation as a result of these clauses. If that is not done, I gather that the costs will be very burdensome for local authorities.
Lord Harris of Greenwich: As I understand the situation, the Home Office estimate is that in terms of the amount of secure accommodation available we are talking about another 30 to 35 places. The London Boroughs Association says that that is an underestimate because there is already a serious shortage in London.
Perhaps I may refer the noble Earl to a Written Answer which I received from the noble Baroness, Lady Hooper, on 20th December last year. It is important to remember the figure of 30 to 35 extra places. On 1st January 1980 there were 329 secure places in England. On 1st January of last year there were 294 secure places. I am sure that the noble Earl will accept that that is a fall of 35 places. If those figures are correct, as I am sure they are, we are being told by the Government that it will take three or four years to get back to the situation which we were in 10 or 11 years ago. That is not a very impressive record.
If we consider the boroughs which have cut back on their provision of secure places, we find one interesting example: the London Borough of Wandsworth. That is a borough we are constantly told we should look to and respect for its remarkable record of local authority administration. In January 1980 it had 28 secure places; now it has none. In other words, very nearly the whole of the extra resources that the Government will have to find in regard to secure accommodation is explicable by the cut-back in the London Borough of Wandsworth. That is indeed a remarkable record.

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Perhaps I may add a further point. Those of us who visit prisons regularly are depressed on each occasion by the substantial number of children we see in remand accommodation. It is obvious that if we do not have adequate secure accommodation available, as far as local authorities are concerned children will continue to go to prison. That is inevitable given that the Government have not agreed any clear timetable for getting them out of prison.
All I say to the noble Earl is that we expect the Government to discuss the matter realistically with the local authority associations, bearing in mind that some of the local authorities which will be required to provide the additional accommodation are already capped The difficulties in that regard will be formidable indeed.
Baroness Faithfull: Perhaps I may reinforce what has already been said by many noble Lords. I received a huge document from the Association of Directors of Social Services covering the whole of England and Wales. The Association of Directors of Social Services is in deep trouble. On the one hand it supports the Government in not wanting to send children to prison on remand; on the other, as the noble Lord, Lord Harris, of Greenwich, mentioned, it simply does not have the money to set up the secure accommodation required. If that is to be done, the funds will need to be ring-fenced.
I turn to my second point. In the halcyon days gone by I had a splendid remand home run by extremely good people. A number of those children were so treated in that remand home that when they came before the courts they were not sent to a penal institution because they had been so helped on a welfare basis in the remand home. It is a real dilemma for the Association of Directors of Social Services. It does not want children to go to prison; yet it does not have the money to set up secure accommodation throughout the country.
Baroness Seear: I believe that this is the best place—though perhaps not totally appropriate—to raise an issue in regard to young offenders since this clause discusses issues concerning them. The issue involves the rehabilitation of the young offender. I understand that the matter was raised in another place and the Minister said that he was giving the matter attention. However, it seems appropriate that it should also be considered in this Chamber.
Under the Rehabilitation of Offenders Act, offences of a less serious kind are regarded as spent after a period of 10 years. The offender does not have to admit to any offence in any sphere in which he finds himself, but most importantly, in applying for jobs. People specifically concerned with the question of the young offender suggest that, since so many offences are committed between the ages of 15 and 22 and after that very often young people settle down and offending becomes a thing of the past, it would be extremely helpful if, to the Rehabilitation of Offenders Act, could be added a clause to allow for the offence to be spent in a shorter period of years—perhaps three or four. It would then be more possible for the young offender to obtain employment.
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Hideous examples exist of the experience of young offenders when they have completed a period in prison. In one case a young man applied for 89 jobs; he secured none and went back into crime. The ability to have an offence spent, and therefore greatly to enhance the opportunity of getting a job, would surely be a very valuable way of cutting down on the continuation of offences among young persons. I very much hope that the Minister will give this matter very careful consideration.
11.15 p.m.
Lord Elton: I wish to say a few words in support of my noble friend Lady Faithfull. The concept of sending juveniles and children to prison is entirely abhorrent. I hope that my noble friend recognises the enthusiasm with which we support the amendment and with which we press him to ensure that it will be used on every possible occasion until no juvenile is ever sent to prison.
Earl Ferrers: I recognise the concern which my noble friend has referred to. We do not want to see children and young people going to prison. We shall have gradually to find ways of avoiding that. The noble Baroness, Lady Seear, referred to young offenders. The point that she made is very real. The example that she gave is a very graphic one. She spoke of a person who has his conviction not spent then tries to find a job but cannot, as a result of which he goes back into crime. We shall certainly take these matters into account. All Members of the Committee are concerned about that situation and about what we are trying to do about secure accommodation.
The noble Lord, Lord Richard, and a number of other Members of the Committee, asked about that provision. The proposals that we have put forward have important resource implications. Work on the resources will be an important part of what has to be done as we take these proposals forward. Officials have already had discussions with the local authority associations. Prison remands can only be abolished when enough secure accommodation is available. There will be a need for new building, which takes time to plan and complete. We intend later to review what has been achieved and what more needs to be done. There are now about 300 places in secure accommodation which are used mainly for difficult and disturbed juveniles in care. The consultation paper estimates a need for between 30 to 35 extra places by 1995.
The noble Lord, Lord Harris, referred to a Written Answer which he received from my noble friend Lady Hooper about a decline in the number of places. Part of the answer lies in Amendment No. 94C, which introduces the second new clause. For the first time it puts a duty on local authorities to provide enough secure accommodation. The costs are funded 100 per cent. by central government. That will provide a solid basis for building up the number of places to meet the demand. I realise that it will not be done overnight. In the general course of events these provisions are not created as quickly as one would wish. I can assure the Committee that it is the intention of the Government

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to do the best they can to provide sufficient secure accommodation in order to keep the persons in question out of the prison system.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 94C:
After Clause 49, insert the following new clause:
Provision by local authorities of secure accommodation
("—(1) It shall be the duty of every local authority to secure that they are in a position to comply with any security requirement which may be imposed on them under—

(a) section 23(4) of the 1969 Act (remands and committals to local authority accommodation); or

(b) section 37(3) of the 1980 Act (committal of young person to Crown Court for sentence).

(2) A local authority may discharge their duty under subsection (1) above either by providing secure accommodation themselves or by making arrangements with other local authorities for the provision by them of such accommodation.
(3) The Secretary of State may by regulations make provision as to the co-operation required of local authorities in the provision of secure accommodation.
(4) The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) In this section expressions used in section 23 of the 1969 Act have the same meanings as in that section.").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 94D:
After Clause 49, insert the following new clause:
Transitory provisions pending provision of secure accommodation
("—(1) In relation to any time before such day as the Secretary of State may by order made by statutory instrument appoint, section 23 of the 1969 Act as substituted by section (Remands and committals to local authority accommodation) (1) above shall have effect with the following modifications.
(2) In subsection (1), immediately before the words "the remand" there shall be inserted the words "then, unless he is declared by the court, after consultation with a probation officer or a social worker of a local authority social services department, to be a person to whom subsection (5) below applies".
(3) For subsections (4) and (5) there shall be substituted the following subsections—
"(4) Where a court declares a person to be one to whom subsection (5) below applies, it shall remand him—

(a) to a remand centre, if it has been notified that such a centre is available for the reception from the court of such persons; and

(b) to a prison, if it has not been so notified.

(5) This subsection applies to a young person who is male and has attained the age of fifteen, but only if—

(a) he is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or

(b) he has a recent history of absconding while remanded to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded,

and (in either case) the court is of opinion that only remanding him to a remand centre or prison would be adequate to protect the public from serious harm from him."
(4) In subsection (6)—

(a) for the words "imposes a security requirement in respect of a young person" there shall be substituted the words "declares a person to be one to whom subsection (5) above applies"; and

(b) for the words "subsection (5) above" there shall be substituted the words "that subsection".

(5) In subsections (7) and (9), the words "without imposing a security requirement" shall be omitted.
(6) After subsection (9) there shall he inserted the following subsection—
"(9A) Where a person is remanded to local authority accommodation, a relevant court may, on the application of the designated authority, declare him to be a person to whom subsection (5) above applies; and on its doing so, he shall cease to be remanded to local authority accommodation and subsection (4) above shall apply."
(7) In subsection (12), the definition of "secure accommodation" shall he omitted.").
On Question, amendment agreed to.
Lord Reay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-one minutes past eleven o'clock.