Lords Sitting of 17 January 1992

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by
the Lord Bishop of Chichester.

Trident
Lord Mayhewasked Her Majesty's Government:
Whether a Trident submarine could be used, if necessary, in a sub-strategic role.
Earl Howe: My Lords, Trident is a strategic system. NATO's new strategic concept approved at the Rome Summit in November 1991 made clear that sub-strategic forces are an essential link between conventional and strategic forces. There are many technical and operational reasons for not relying on Trident to discharge sub-strategic roles too.
Lord Mayhew: My Lords, will the noble Earl confirm that Trident could have many advantages? Does he agree that it is less vulnerable than air-to-surface systems; it is probably more accurate; and if it could combine the two roles it would save the country well over £2 billion?
Earl Howe: My Lords, the reason why the Government disagree with that view can be summed up in two words: flexibility and security. If we were now to rely solely on submarine-launched systems we should be putting all our nuclear eggs into one basket for decades ahead. A separate capability is a hedge against the possibility of unanticipated technical or operational advances which could threaten Trident's capability. Advances in anti-submarine warfare techniques are one example.
Lord Mellish: My Lords, will the noble Earl confirm that Trident is a minimum deterrent? Does he agree that it is to the credit of this Government and the nation that we continue to rely on nuclear deterrents while the world is in its present state?
Earl Howe: My Lords, I agree with the noble Lord that this is a highly uncertain world and that it is the task of the Government to plan for the long term.
Viscount Mersey: My Lords, does the noble Earl agree that with the variable yield warhead the Trident missile could indeed be regarded as sub-strategic? How can one measure sub-strategic by any means other than by the size of the explosion?
Earl Howe: My Lords, the best way to describe what we mean by a sub-strategic strike is that it would be a measured but unmistakable warning in the face of aggression against us that we were unwilling to yield. The aim would be to induce an enemy to end his aggression to ensure his continued survival. That is very different from an all-out strike.
Lord Molloy: My Lords, does the noble Earl agree that at present there is a possibility that the breakup of' the USSR has created a more dangerous situation than when the Soviet Union existed? Does he further agree that we therefore have to be cautious and give great thought to any changes made in any form of our armaments?
Earl Howe: My Lords, I fully agree with the noble Lord. Control over a nuclear arsenal is only as good as the commitment and dependability of the forces which guard it.
Lord Williams of Elvel: My Lords, will the noble Earl agree that his definition of a sub-strategic strike lends credence to the idea that Trident could be used in such a capacity if necessary? That is not to say that there should not be a strategic role as well. But if a sub-strategic strike is to deter a possible aggressor with a limited strike, could not Trident do that perfectly easily?
Earl Howe: My Lords, Trident is a system designed to fulfil a strategic role. The Government fully subscribe to NATO's policy of maintaining separate sub-strategic forces in Europe.
Lord Mayhew: My Lords, is the noble Earl aware that a previous Answer on this subject showed that the Government regard Trident as extremely flexible and quite capable of firing not only a single missile but a single warhead from a single missile? Is he further aware that the arguments that it cannot use the sub-strategic role are not satisfactory?
Earl Howe: My Lords, doubtless a missile of any kind could be launched from a submarine, but that is not the point. The Government believe that it would be unwise to rely on the noble Lord's premise as the basis for the country's defence in time of war.

Wind Turbines
11.10 a.m.
Viscount Hanworthasked Her Majesty's Government:
Why they decided to discontinue funding for an experimental wind turbine out to sea.
Lord Cavendish of Furness: My Lords, I believe that the question refers to a proposal by the former Central Electricity Generating Board to build a wind turbine in the North Sea, off the coast of Norfolk, which the board subsequently decided not to proceed with. Following the Central Electricity Generating Board's decision the Department of Energy commissioned a feasibility study, which is due to be completed by the end of this year, to identify the costs of an off-shore experimental machine.
Viscount Hanworth: My Lords, I thank the Minister for that very full Answer. Does he agree that we may be limited on the number of wind turbines that we can put on land and therefore the possibility of putting them out to sea—for example, in the Wash— must and should be investigated? While the costs

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appear to be much greater, does he consider that they could be reduced if we had a programme of development?
Lord Cavendish of Furness: My Lords, the noble Viscount is quite right to say that there are limits to on-shore generation. If 1 per cent. of our electricity needs were to be generated from wind, we should need turbines occupying some 300 square kilometres of land. Our present estimates—they are only estimates—suggest that to put generators off-shore would about double the cost. In view of that, we are first making a priority of studying on-shore generation.
Lord Donoughue: My Lords, is the Minister aware —I am sure he is—that in 1990 the Watt Committee Report on energy renewables warned that it was not possible to support large-scale renewable energy projects from private funding alone? I hope that the House will be tolerant if I quote its recommendation for:
"a measure of public sector funding in all such major projects and continuing support for R&D across all the renewable energy technologies".
The report concluded that:
"With a sustained programme of research and development the working party predicts a technical abundance of renewable energy resources which could more than satisfy our needs".
In the light of that, is it not unfortunate that we are apparently withdrawing from serious endeavours in the offshore wind area, given what has been said about the social limitations there are bound to be with regard to onshore wind turbines?
Lord Cavendish of Furness: My Lords, I am grateful to the noble Lord for quoting that. I broadly agree with the Watt Committee's suggestions. The renewables budget in 1991–92, as I have quoted before in this House, is £24.3 million, which is an increase of 20 per cent. There is no area of renewables that we neglect altogether. Like every programme, we have to make our priorities.
The Government have given a major boost to renewables through the non-fossil fuel obligations. The First and Second Renewables Order under the Electricity Act 1989 resulted in a total installed capacity of about 642 megawatts being contracted.
The Earl of Lauderdale: My Lords, does my noble friend agree that the phrase quoted from the Watt Report "more than satisfy our needs" discredits rather than credits the credibility of the report? It is an exaggerated phrase. No source of energy can be said to more than satisfy our needs.
Lord Cavendish of Furness: My Lords, my noble friend is absolutely right. The noble Lord, Lord Donoughue, qualified the expression by saying "a technical capacity" which is the correct way to describe it. It would be possible to envisage that all generation could come from offshore—the subject of this Question—but it is unlikely, being intermittent, that it would ever satisfy our needs in reality.
The Earl of Lauderdale: My Lords, is that irrespective of cost?
Lord Cavendish of Furness: My Lords, indeed.
Lord Williams of Elvel: My Lords, does the noble Lord recall in evidence to your Lordships' Select Committee on renewable energies, which reported a year or two ago, that the CEGB stated that technically it would be possible to provide 100 per cent. of the country's electricity needs through offshore wind turbines but that clearly the economics are wrong at present? Is it not a fact that sooner or later the economics will come right? It may take 10, 20, 30 or 40 years, but would it not be totally wrong not to investigate the matter fully? If we can achieve such provision it will avoid all the difficulties of North Sea oil running out and the environmental problems associated with some wind farms on land.
Lord Cavendish of Furness: My Lords, I cannot quarrel with anything that the noble Lord said. We are currently undertaking a thorough study. The point of giving priority to onshore development is that there are still technical matters to be dealt with in regard to turbine technology—for instance, vertical as opposed to horizontal technicalities. However, there is encouraging evidence that we shall be generating more from renewables and a real expectation of one day being able to generate 20 per cent. of our generating needs from renewable sources.
The Earl of Lauderdale: My Lords, following the argument of the noble Lord, Lord Williams, does the noble Lord agree that we should therefore also spend a lot of money on fusion research over the next 50 years, which is the most expensive but the most hopeful research?
Lord Cavendish of Furness: My Lords, into this argument must come the question of diversity. If we are to feel secure in our energy needs we must conduct that research within our means on many different fronts.
Lord Hatch of Lusby: My Lords, the noble Lord boasts about spending £24.3 million a year on research and development of renewables. How does that compare with the figure that is being spent on research and development on the nuclear industry? Is it not essential that we move more towards the use of renewables in view of the environmental disasters forecast with the continuing use of carbon fuels?
Lord Cavendish of Furness: My Lords, as I have said previously to the noble Lord, there is no reason why research and development expenditure on renewables should have a proportional relationship to the expenditure on nuclear research. I have spoken already about the need for diversity. We shall continue to commit research to both areas.
Lord Hatch of Lusby: My Lords, will the noble Lord answer my question? If he is boasting about spending £24.3 million a year on research and development of renewables, what are the Government spending on research and development in the nuclear industry?
Lord Cavendish of Furness: My Lords, the subject of nuclear research is not on the Order Paper. Nor have I done any boasting.
Viscount Mersey: My Lords, what my noble friend said about offshore generation being more expensive than land generation is true. However, is that not offset by the fact that it is windier at sea than on land and that therefore sea wind generators would be able to generate electricity for a higher proportion of the time?
Lord Cavendish of Furness: My Lords, my noble friend makes a perfectly correct point. The potential offshore is almost limitless.

Tees and Hartlepool Port Authority
11.19 a.m.
Lord Ezraasked Her Majesty's Government:
Whether they are satisfied with the procedure adopted for the privatisation of the port of Tees and Hartlepool.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, on 18th December my right honourable friend the Secretary of State announced in another place that he was minded to give his formal consent to the recommendation of the Tees and Hartlepool Port Authority board that its undertaking should be sold to Teesside Holdings. Since then THPA Consortium, the management-employee buy-out team which bid for the port, and honourable Members in another place have put forward representations that there were defects in the THPA board's consideration of the bids. My right honourable friend will consider carefully the matters which have been raised before making a final decision on the sale.
Lord Ezra: My Lords, does the Minister agree that considerable confusion has surrounded this first bidding process for a trust port to be privatised under the 1991 Act? Does he also agree that some of the bidders in this case submitted revised bids while others did not? Is it correct that the successful bidder, still to be confirmed by the Minister, did not submit the highest bid; nor did it represent the interests of the management even though that was supported in the Act? Will the Minister confirm press reports that, because of the confused situation, a news blackout has been imposed on the bidding processes for other trust ports?
Lord Brabazon of Tara: My Lords, I should not regard what has happened as confusion within the bidding process. As I stated in my Answer, the THPA board recommended to my right honourable friend that the bid should go forward. Since then various allegations have been made, upon which I do not intend to comment today. It is true that it was not the highest bid but my right honourable friend said in answer in another place:
"the THPA board concluded that the bid by Teesside Holdings Limited, although not the largest in monetary terms, was the most consistent with the authority's
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privatisation objectives and, taken overall, the most beneficial to the port, its employees and the Teesside community generally". —[Official Report, Commons. 18/12/91; col. 163.]
Lord Clinton-Davis: My Lords, will the Minister confirm that the allegations that are being considered by his department in relation to the Teesside bid involve allegations that Teesside Holdings Limited offered inducements to the port authority which was handling the bid; that it was given a degree of favouritism; that conflicts clearly arose vis-à-vis Teesside Holdings Limited and the port authority; and that there was an omission on the part of two directors to disclose their involvement in malpractices relating to redundancy payment issues under the Dock Labour Scheme some time ago? In view of those serious allegations, will the Minister indicate whether the police are being called in to investigate the matters?
Secondly, would he not think it appropriate, since after all justice must not only be done but be seen to be done, that this port authority should not handle the issue again and that, in the interests of fairness as perceived by the other bidders, there should be a renewal of the whole proposal?
Lord Brabazon of Tara: My Lords, as I have already said, I do not intend nor would it be right for me to comment on the allegations which the noble Lord has wrongly repeated in the House today. When the time is right my right honourable friend will respond in full to the allegations that have been made. I have no knowledge of whether police involvement will be necessary.
Lord Clinton-Davis: My Lords, is the Minister aware that in another place these allegations were made most specifically because otherwise no one would be any the wiser about why the matter was being reviewed? In my submission it is perfectly proper to advert to those issues now. Can the Minister indicate whether the police are being called in? After all, in the interests of public information about the matter that issue is absolutely crucial.
Lord Brabazon of Tara: My Lords, I do not intend to reply to the allegations—it would not be right for me to do so. They must be properly considered. As I have already said, I do not know whether there is police involvement.
Lord Bruce of Donington: My Lords, the Minister has said that the Government will investigate the whole matter in detail. Will he give the House an undertaking that the results of their inquiries into these serious allegations will be made fully available to the public and to the House?
Lord Brabazon of Tara: My Lords, when my right honourable friend responds to the allegations he will undoubtedly wish to publicise them in some way. They were made by honourable Members in another place who are entitled to a reply.
Lord Tordoff: My Lords, would the Minister care to comment on the suggestion made by my noble

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friend Lord Ezra that a news blackout has been imposed on any bids made in similar circumstances? If that is the case it is most serious.
Lord Brabazon of Tara: My Lords, I believe that to be the result of a misunderstanding. The department has asked trust ports seeking privatisation to delay making any public announcement about their boards' recommendations on the successful bidder for the port until my right honourable friend has had an opportunity to consider the recommendations and to decide whether to give his consent. The request was made because my right honourable friend might not give his consent to a recommendation. Should he not do so it would be misleading and unhelpful both to the recommended bidder and to the other bidders if the port announced its recommendation publicly. There is no reason why we should try to prevent bidders for a port from making public whatever information they choose about their bids and we were certainly not seeking to do so. The only confidentiality clauses that bidders are being asked to sign relate to commercially-sensitive information which they receive from the port for which they are bidding.

Local Government Finance Bill
11.26 a.m.
Earl Howe: My Lords, I beg to move the Motion standing in my name on the Order Paper, subject to one amendment occasioned by a printer's error. Between "Schedules 1 to 4" and "Schedule 8" there should be inserted "Schedule 6". I trust that the House will agree to the Motion subject to that amendment, which originates purely from a printer's error.
Moved, That it be an Instruction to the Committee of the Whole House to whom the Local Government Finance Bill has been committed that they consider the Bill in the following order-

Clauses 1 to 4,

Clauses 70 to 73,

Schedule 5,

Clauses 5 to 10,

Clauses 74 to 78,

Clauses 11 to 38,

Clauses 79 to 93,

Clause 97,

Schedules 1 to 4,

Schedule 6,

Schedule 8,

Clauses 39 to 69,

Clauses 94 to 96,

Clauses 98 to 99,

Schedule 7,

Clauses 100 to 102,

Schedule 9,

Clauses 103 to 118,

Schedules 10 to 14.—[Earl Howe.]

On Question, Motion agreed to.

Aggravated Vehicle-Taking Bill
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Aggravated Vehicle-Taking Bill be read a second time.
The Bill strengthens the law against criminals who take other people's cars illegally and then drive them dangerously or cause injury or damage. This practice has sometimes been called "joy riding" but, of course, there is nothing remotely joyful about these activities. As last year's events in Oxford, Newcastle and elsewhere showed, the illegal taking of cars leads to danger to other road users, the destruction of property, and injury or even death. So much for joy!
The practice is an appalling menace and one which, up to now, the criminal law has had some difficulty in dealing with adequately. The basic mischief of taking a vehicle is, of course, already an offence under Section 12 of the Theft Act 1968. And, at least in theory, there are offences such as manslaughter, criminal damage, reckless driving and causing death by reckless driving which are available to catch other mischiefs which are connected with the original offence. Sometimes these offences can be enforced; but sometimes they cannot.
Let us consider for a moment the problems which there may be in proving the offence of criminal damage. Data from the British Crime Survey shows that at least 40 per cent. of illegally-taken cars are damaged by the time the owners get them back. But Home Office statistics indicate that only 6 per cent. of those charged with illegal taking are also prosecuted for criminal damage. All too often it is just not clear which member of a gang caused the particular damage, or who actually had his hand on the wheel when the car crashed and someone was killed or injured as a result. They might all have had a turn; it might have been dark; the car might have been travelling too fast for clear identification; or perhaps the vehicle was found abandoned and burnt out in a wood and the taker simply denies having had any responsibility for it.
But none of these things would have happened if the vehicle had not been taken in the first place. If the takers are prosecuted only for the basic offence of "taking" their punishment will just not be sufficient to reflect the havoc which they have wrought, the misery which they have caused, or the moral culpability which they bear.
This Bill therefore provides that, when a basic offence of taking a vehicle without consent is accompanied by dangerous driving, by injury, by damage either to the vehicle or to other property, or by any combination of these aggravating circumstances, those who are guilty of the basic offence will be guilty in addition of an aggravated offence and they will be liable to increased penalties.
It is important to stress that the circumstances to which I have just referred are treated in the Bill as aggravating events. The Bill does not seek to convict anyone of the separate offences of criminal damage, reckless driving, dangerous driving or any offence against the person. They will continue to be covered

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under other legislation. This Bill simply recognises an aggravated form of what is an existing Theft Act offence.
As with the basic offence in the Theft Act 1968, the new aggravated offence will apply not only to whoever takes the car initially, but to anyone who drives it or who is driven in it, provided that they know that the car has been taken illegally. This means that the prosecution will not have to show which of the gang was actually driving at the particular time, or who was responsible for a particular piece of vandalism. The whole episode will be viewed as one offence and all those who are involved will be equally liable to punishment for the aggravated offence. That seems to me to be not only a realistic solution to a problem of enforcement, but it also represents a moral position.
If a gang takes a car and tragedy results, it is invidious to attempt to single out just one member of the gang and to say that he alone is to blame. All members bear moral responsibility and all should be criminally liable both for taking the vehicle and for the consequences of that offence. Of course, if it is clear in a particular case that one gang member was especially culpable, it will still be possible to prosecute him individually for criminal damage or for reckless driving or for other offences as appropriate as well.
Clause 1 provides that the aggravated offence will carry a maximum penalty on indictment of two years' imprisonment, or an unlimited fine or both, or five years' imprisonment in a case where death has been caused.
These penalties are in line with those for the existing offences of reckless driving and causing death by reckless driving, and for the new offences of dangerous driving and causing death by dangerous driving which was created by the Road Traffic Act of the last Session.
The maximum penalty for the basic offence of "taking" is six months' imprisonment or a £2,000 fine or both. That is clearly an inadequate response to the more serious cases which are the concern of this Bill.
Some of your Lordships may recall that the maximum penalty for the basic offence used to be three years' imprisonment or an unlimited fine or both. Your Lordships may wonder why this was reduced in the Criminal Justice Act 1988, and why the Government do not simply reinstate the old penalties. The fact is that when the basic offence was made summary only and when the penalty was reduced to six months, that was simply a recognition of what was in fact already the practice of the courts. We should wish to avoid returning to the situation before 1988 when any vehicle taker, however minor his mischief might have been, could elect for a Crown Court trial.
That is why the Bill creates an aggravated offence with an appropriate penalty, and why it does not simply raise the penalty for the existing general offence of unlawful vehicle-taking. The Bill makes it clear which cases are to be viewed more seriously.
Clause 1 is the most important, and the most substantial, part of this Bill. Clause 2 provides that, if the only aggravating event was damage below the value of £2,000, then the aggravated offence has to be
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tried summarily, and it provides the formulae by which the court will determine the value of any damage which has been done.
These provisions reflect those which have been made for the substantive offence of criminal damage by the Magistrates' Courts Act 1980. They are designed to prevent the Crown Court from becoming clogged up with less serious cases.
Clause 3 means that the courts must normally disqualify everyone convicted of the new offence from driving for at least 12 months. If, for some exceptional reason, disqualification is not appropriate, the court must endorse his licence and impose penalty points. Clause 3 also provides that the fact that an offender was only a passenger in the car concerned is not to be treated as a special reason for letting him off a ban. Of course, the length of the ban is at the determination of the court.
Clause 4 provides for the Short Title, commencement and scope of the Bill. The law is different in Scotland and Northern Ireland, so this Bill will not apply there. However, I understand that my right honourable friend the Secretary of State for Northern Ireland will consider whether there is a need for similar legislation in the Province.
This Bill has been generally welcomed and it received a good measure of support from all quarters in another place. I hope that it will receive equal, if not enhanced, support in this House.
There have been suggestions that the Bill may create an undesirable precedent by making an offender liable for the actions of others, or even by reversing the usual burden of proof in criminal cases. Some of the press reports about the Bill concentrated on these two alleged departures from principle, so it may be for the convenience of your Lordships if I were to deal with those misunderstandings now, at the beginning of this debate.
The Bill is, in fact, less novel than has been sometimes suggested. In order to obtain a conviction for aggravated vehicle-taking, the prosecution will have to prove both that the accused committed the basic Theft Act offence, either as a driver or as a passenger, and that an aggravating event occurred during the time when the car was taken.
Both elements of the offence must be proved beyond reasonable doubt in the usual way. There is no question of a defendant being presumed to be guilty unless he can prove his innocence. It is true that the prosecution need not prove that a particular defendant was personally responsible for a particular aggravating event but, if that could readily be proved, there would, of course, be no need for this Bill. A defendant could simply be prosecuted for a free-standing offence of manslaughter, dangerous driving, criminal damage or whatever.
The Government believe that anyone who deliberately involves himself in an episode of illegal car-taking incurs moral responsibility for whatever happens—whether or not he was in the driving seat at the time. If things go wrong, he should take the legal consequences, and he has no one to blame but himself.
Far from being too draconian, the Bill provides defences for defendants who can show that an

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aggravating event occurred before they committed their basic offence, or at a time when they were not in, on or near the vehicle concerned. As with most other statutory defences, these will be for the defendant to establish on the balance of probabilities. As your Lordships will appreciate, there is a substantial difference between providing a defence of this sort and reversing the usual burden of proof, and that the Bill does not do.
The Government accept that this Bill is not the complete answer to the problem of car crime. It is just another weapon in the armoury of measures against crime. That is why we are encouraging local probation services, the police, voluntary groups and others to work to reduce motor offending, and why the Home Office is providing nearly £200,000 this financial year for motor projects, working with young offenders and others. That is also why my right honourable friend the Home Secretary is engaged in a series of meetings with leading manufactures to try to encourage them to make improvements in car security, and why, on 11th February he will inaugurate Car Crime Prevention Year to increase public awareness of ways in which car crime can be prevented. Nevertheless, some element of cure is needed when prevention fails. This Bill provides it. I beg to move.
Moved, That the Bill be now read a second time. —(Earl Ferrers.)
11.40 a.m.
Lord Morris of Castle Morris: My Lords, those of your Lordships who benefited from a classical education may well recall the words of the satirist Juvenal when he wrote, "Galeatum sero duelli poenitet", or, "It's too late to shirk the fight when you've got your helmet on". Recent Home Office policy seems to have been to put a helmet on, if I may say so, at the drop of a hat, and only then to consider how to fight the legislative battle on half a dozen different fronts at the same time. Even so, and not otherwise is it with this Bill.
For the past year and more Her Majesty's Government, and particularly the Home Secretary, have identified one painful problem after another and tried to defend themselves against press and public outrage by a bit of speedy footwork in the legislative ring. There were media headlines regarding dangerous dogs, prison mutinies and car crimes and there were panic reactions in the Home Office—"The public must be protected; something must be done". So legislation was dreamt up, brought in, and rushed through to cover up a basic lack of planned policy.
The Bill is a partial answer to part of a problem. It represents short-term thinking and it seems to have been devised far more to impress the newspapers than to depress the potential criminal. It is certainly unlikely to do much to stem the rising tide of car crime. To be fair to him, the Home Secretary recognised its limitations when he said —and the words were echoed by the noble Earl this morning —that the Bill is not the whole answer to car crime,
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nor does it pretend to be. But it is the only measure currently before us and we must evaluate it as it stands and for what it is worth.
It stands unsteadily. It offers little that is new. In itself it will achieve little because it duplicates powers which already exist to deal with taking and driving away a car and with many aggravating factors. Any driver who recklessly drives and causes damage or injury, or any passenger who encourages him to do so, is liable, upon conviction, to two years' imprisonment under the Road Traffic Act 1991. To cause death by reckless driving carries a maximum sentence of five years; manslaughter carries a maximum of life imprisonment. Even the offence of deliberately damaging a vehicle attracts a possible 10-year sentence.
Powerful penalties already exist and the Bill duplicates many of them while adding only a few new ones, mostly concerned with people other than the driver, who will now be required to establish their innocence if they are to avoid sentence. It hardly gets to the root of the problem. As I said, the Bill is a knee-jerk Home Office reaction to some well publicised, horrific events which took place last summer and autumn. Children and adults were killed or maimed by young villains driving stolen cars, usually high-performance vehicles. What was variously described as "joy-riding", "ram-raiding" or "hotting" was a sudden, short lived, fashionable behaviour cult which only highlighted the vastly greater, longstanding, steadily growing problem of car crime, incorporating everything from the gravest of manslaughters to the more venal escapades of so-called joy-riding.
It is significant that the word "joy-riding", however inaccurate, is no new invention. The Oxford English Dictionary records it as early as 1908 and includes in its definition,
"a pleasure trip in a motor car, aeroplane etc., often without the permission of the owner of the vehicle".
It has been with us for a long time. The point is that in recent years it has grown to horrific proportions. Car crime offences, as it is better to call them, have increased steadily and alarmingly to proportions which are little short of monstrous. That is the real heart of the problem.
In 1990 there were 494,000 recorded offences of theft or unauthorised taking of motor vehicles; that is a 25 per cent. increase on the previous year. That followed a 7 per cent. increase in such offences between 1988 and 1989. We can rely on those figures because one thing is clear—that owners of cars almost invariably report the loss of their vehicles.
The Bill is the Government's response to that situation. In considering the problem of car crime as a whole we must ask three questions. Who commits it? Why do they do it? What will stop them? The answer to the first question is easy. The majority of known car crime offenders are teenage boys. Thirty-four per cent. of offenders are aged 15 and 16, and 39 per cent. are aged 17 to 20. The result of these offences is, at the minimum, distress and inconvenience and at least temporary loss of the use of the vehicle; often damage is caused to the vehicle and in all too many cases injury

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and even death are caused to innocent parties and, tragically, to the young offenders themselves. Research suggests that the driver of a stolen car is 200 times more likely to be injured in an accident than the authorised driver.
Comparatively few adults steal cars except for other criminal purposes, and hardly any women steal cars at all. It has been reported in many research papers and articles that the young men who form the bulk of offenders usually cease to offend in this way when they marry or settle down in a steady relationship. I admit that I am being imaginative, but not wholly facetious, when I say that we could eliminate much of the car crime in this country by lowering the age at which one can qualify for a driving licence to 14 and making the penalty for subsequent car crime offences immediate compulsory marriage.
The second question regarding why young men commit this crime is no more difficult to answer. They do it for excitement, for thrills, for kicks. They do it to achieve status in the peer group; to relieve boredom in a society where unemployment is high and many people have little to do and where the excitement of the as yet unattainable car of one's own is elevated by so many television police programmes, often American in origin, which culminate in high speed car chases demonstrating impossible driving skills as though they were within the reach of everyone.
There is a secondary reason why young men in this country commit car crimes. They know perfectly well that if they do so they are unlikely to be caught. Of the 400,000 offences that occurred in 1990 only 5,000 offenders went to prison or to a youth offenders' institution. Of those, 4,000 went in for six months or less and only 1,000 out of 400,000 cases were caught and given sentences of six months or more. The bored boy living in an urban high-rise flat, excited by the fast cars he sees belonging to other people and envious of their freedom and lifestyle, knows that the odds are heavily on his side if he simply takes that vehicle and drives it away, regardless of the hideous damage that he may do.
The third question regarding what will stop them from committing this crime is more complex. However, one thing is clear. This Bill is unlikely to do so. I cannot for one moment believe that the new penalties it introduces will act as any sort of deterrent. Deterrents are irrelevant. Deterrents are only effective when people coolly and rationally consider the odds and the penalties. Most car crimes are impulse actions done on the spur of the moment; hardly any of the offenders would be able to give an accurate account of the present penalties. Even if a potential offender of 15, 16 or 17 made a careful study of the new penalties proposed, he would rightly conclude that he had no means of calculating the additionality of the danger in which he stood should things go wrong and his stolen car damaged property or killed or injured someone.
Nor will the threat of obligatory disqualification deter those young men and boys. Thirty-four per cent. of recent offenders were too young to qualify for a licence and there is no terror in the thought that in two or three years' time one may not be able to obtain one. Of the 39 per cent. aged between 17 and 20 a fair
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proportion had never bothered to obtain a licence in the first place and had absolutely no intention of doing so. Licences mean little to the lawless.
Above all, the possibility of swingeing and unlimited fines will not deter this group of people above all other groups. The majority of the offenders are either too young to have an income or too poor to pay even the modest fines which magistrates deem it sensible to impose. It has been argued elsewhere that since last year's legislation the parents of such young people will now be liable and the sins of the children will be visited upon the fathers. That may be true in some cases. But in many more the parents themselves will be unemployed or living on social security. The courts know full well that heavy fines in such cases are simply unrealistic. They do not get paid.
The one small step forward which the Bill does take and which may influence the actions of potential car crime offenders is that it makes everyone in the car, not merely the driver, liable for the aggravated offence. That is not very likely to reduce the number of offences, but it may deter some young people from simply "going along for the ride". That would be a good thing.
That is the best I can say for this Bill. I must point out the opportunities which have been missed. Car crimes will not decrease until it is made much harder to steal cars. For many years the Government have been discussing car safety with the manufacturers and next to nothing has come of it. Modern technology can produce a means of immobilizing a car, and a Bill to compel the manufacturers to alter their priorities and put safety before in-car entertainment would go a long way towards solving that problem. It has been said that we cannot legislate on this safety matter; progress must be by consultation and by consent. Why so? We legislated over seat belts and great good it did to us.
Similarly, the Government should introduce tax concessions and the insurance companies should reduce premiums for motorists who can show that their cars are as fully protected as possible. It has been suggested in another place that we should buy and use our own wheel clamps and that is not a silly idea. Leicestershire, Warwickshire, South London and other areas have introduced vehicle watch schemes to very good effect. Such schemes should be given Government encouragement and support. But above all research has shown that motor schemes run by local authorities for offenders or for volunteers dramatically reduce the rate of re-offending: 9 per cent. re-offended in the South London area as opposed to 80 per cent. in the surrounding areas. What greater proof do we need! Young people, permitted to explore the forbidden mysteries of powerful engines under supervision, are manifestly less likely to do so unlawfully.
All such opportunities have of course been missed in this very modest and misdirected little Bill before us today. We on these Benches shall not oppose it because there is very little in it which is going to have very much effect. We shall try if we can to improve it, but without very much hope that any real good can result however we amend it. The problem that it

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attempts feebly to address is large and growing at a frightening rate. It is far more pervasive in our society than the short-lived spectacular events of last autumn in Oxford and the North East of England. Yet it is in a panic reaction to those events that this largely irrelevant little Bill has been conceived.
Faced with the glaring newspaper headlines, all the mighty legislative machinery of Queen Anne's Gate was cranked into action and the result is these four strange little clauses which offend many and which will deter few. One recalls the words of that other Latin poet, Horace,
"Parturiunt montes, nascetur ridiculus mus".
The mountains will go into labour and will bring forth a ridiculous mouse.
11.53 p.m.
Lord Meston: My Lords, a first reaction to a Bill such as this ought to be to ask how life would be if we had to do without it. The fact is that for all practical purposes the armoury of the criminal law is already quite strong enough to deal with the offences that this Bill tries to tackle by putting yet another criminal statute on the book.
There is nothing new about the nature of the offence itself. It can be met with a whole range of criminal charges starting from the basic offence under Section 12 of the Theft Act and going on to include criminal damage and the more serious dangerous driving offences which have been introduced in their modernised and workable form in the Road Traffic Act 1991. The noble Earl the Minister described those as theoretical possibilities. I suggest to your Lordships that those are practical possibilities to meet the requirements of a particular set of offences. The law has always had this flexibility. As long ago as 1955 the then Lord Chief Justice recommended that theft of petrol could be included as a charge in a taking and driving away offence, as it then was. I recall an ingenious university lecturer suggesting that abstraction of electricity from a car battery could be charged, but perhaps that is a little fanciful. It is noticeable that the proposed new offence in this Bill is apparently not needed to supplement the law of Scotland. I read and re-read the debate in another place and I still do not understand what the law of Scotland has that we apparently lack.
We can all see the impulses which produced this Bill following the events of last summer. Those events simply demonstrated what anyone who has spent a little time in a magistrates' court or a Crown court knew all too well. The offence of taking a vehicle can simply be an offence which is little more than an anti-social nuisance, but at its worst it can be a terrifying crime with dreadful results. Of course the public must be protected from unqualified, uninsured young men driving dangerously in other people's cars. If it is right that the existing law is essentially adequate one has to try to see what this Bill adds. It adds more for the prosecution to have to prove. It gives new maximum penalties. The irony is that, until Section 37 of the Criminal Justice Act 1988 was passed, the basic
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offence of taking a vehicle contrary to Section 12 of the Theft Act carried a maximum penalty of three years' imprisonment. The noble Earl referred to that.
Re-reading those debates of 1988 it appears that what became Section 37 was agreed on all sides. Until the downgrading by the 1988 Act, the offence was triable in the Crown Court as an "either way" offence. Until then the Court of Appeal had upheld quite stiff sentences for repeated and serious offenders. Indeed, in the The Times' law report only yesterday the Court of Appeal approved a custodial sentence on a juvenile passed for a typical combination of charges at the more serious end of the scale. I doubt whether this Bill will do much to prevent such offences. It certainly will not cure the problems of a culture which glamorises fast cars and trivialises most motoring offences. If the Government want to produce a tough deterrent measure they do not require a new criminal offence which will make little or no impression on the youngsters behaving in the way we have heard about. They may achieve a wider range of penalties to enable the public to be safeguarded from the worst offenders, but that is all.
This Bill creates an offence which requires the prosecution to prove something about the conduct of the driver, the standard of the driving and the consequences of the driving. In reality those are all matters which can be, and traditionally have been, raised at the sentencing stage and reflected accordingly. This Bill adds complication as well as duplication. It exposes those who take cars or who are carried in them, to liability for the aggravated offence caused by damage they themselves did not directly cause. It is presumably said that people who take and abandon cars should be responsible for the consequences of that action even if they were not the direct cause of such damage and even if the damage was not foreseen or foreseeable.
The noble Earl referred to moral culpability. The sad truth is that young offenders do not foresee the consequences of those activities and will not be made to do so by this Bill. Reference has been made to penalty points and disqualification. As the noble Lord, Lord Morris of Castle Morris, said, those matters simply will not deter 15 year-olds in the situations which he described and neither will fines. The reality is that the courts will be unable to impose fines which have any significant effect on such people or probably any significant effect on their parents. The person charged can defend himself by trying to prove a negative under the proposed new Section 12A(3). I look forward to trying to argue what the phrase "in the immediate vicinity" means, but that is something for future litigation.
Noble Lords: Near, my Lords.
Lord Meston: My Lords, near might be good enough I suspect. The nature of the offence is such that the person will probably be tempted to plead guilty and try to establish his subsection (3) defence, whereas without this new provision the consequences of the basic Section 12 offence could be more usefully analysed by the court at the sentencing stage and any gravity appropriately marked.

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Having expressed the rather negative view that the Bill is likely to have minimal impact on the problems that the Government quite properly want and need to deal with, I welcome the indication from them that the Bill is not seen as the complete answer. We on these Benches would certainly support any initiatives to improve vehicle security—though preferably not car alarms going off louder and longer in the middle of the night—and we would support any initiatives for projects to create a more mature attitude to the use and care of cars; for example, projects which have already been established under the probation service.
I hope the Minister will take the opportunity to confirm our understanding that those projects do have a good record in preventing reoffending, as the noble Lord, Lord Morris, said. The attitude from these Benches is the same as the attitude expressed by the previous speaker. The Bill will do little harm, but it will probably do little good. It may need some attention at Committee stage.
12.2 p.m.
Lord Ackner: My Lords, I must confess to a somewhat uneasy and nostalgic feeling of playing truant. Fridays, as your Lordships know, is when all good and true Lords of Appeal in Ordinary apply themselves assiduously to drafting their reserve judgments, viewing critically those provided by their "brothers" and preparing for the rigours of the coming week. It is not this Bill, with its somewhat unattractive title, that has provided a spontaneous overflow of powerful emotion which has caused me to be diverted from my usual Friday activities. It is his Honour Alfred Blennerhassett QC—a former circuit judge, chairman of a government committee on drink and driving (an expert on that subject) and an old friend and fellow Bencher of the Middle Temple—who has drawn to my attention a point which I think it is my duty to draw to the attention of the House.
I have taken the great advantage of the courtesy and kindness always shown by the noble Earl, Lord Ferrers, to discuss the problem with him despite his crushing programme which he has had this week.
The point arises in this way. Section 22 of the Road Traffic Offenders Act 1988 requires a court to notify the Secretary of State for Transport whether, in any proceedings committed in respect of a motor vehicle, it appears to the court that the accused may be suffering from any relevant disability or prospective disability within the meaning of Part III of the Road Traffic Act 1983.
In a case where an offender has been disqualified then unless he can satisfy the department's medical advisory branch—that is, after a reference—that he is no longer suffering from the disability, his licence is not returned at the end of the period of disqualification.
The problem arises out of the definition of the word "disability". Section 92 of the Road Traffic Act 1988 is headed "Physical Fitness" and has the side note,
"Requirements as to physical fitness of drivers"
Subsection (2) states:
"'disability' includes disease,
'relevant disability'… means
(a) any prescribed disability"
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that is prescribed by regulations made by the Minister, and,
(b) any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public".
Regulation 24 of the Driving Licence Regulations 1987 has described as disabilities, among other things, epilepsy, severe subnormality, mental deficiency, sudden attacks of disabling giddiness or faintness. I was not in any way surprised to learn in relation to the offences to which this Bill relates that drink and drugs play a major part. I do not suggest that those who suffer from alcoholism—that is, a dependency on alcohol—or those who suffer from a dependency on drugs are not suffering from a disability within the meaning of the section. But according to the medical evidence sent to me by His Honour Alfred Blennerhassett, the majority of offenders are not alcohol or drug dependants but merely resort from time to time to what is called mis-use or abuse of alcohol or drugs. Probation officers' reports frequently refer to the defendant as having a drink problem in the sense that although perfectly capable of withstanding the urge to drink, from time to time he will behave irresponsibly, over-imbibe, and then take someone else's car and drive in a highly dangerous way.
Mr. Blennerhassett has taken up this general problem with the Home Secretary and the Secretary of State for Transport in the hopes of persuading them, or one of them, to amend Section 92 but has failed in his endeavours. Among the many letters he has sent to me is one from the Minister for Roads and Traffic dated 31st July 1991 which I have drawn to the attention of the noble Earl, Lord Ferrers. It states inter alia:
"It remains the Department's view, and one which is supported by the Medical Advisory Panel on Driving Alcohol and Drugs, that alcohol misuse represents a relevant or prospective disability".
With the greatest respect, that just cannot be right. Alcohol mis-use is an activity, not a disability. That it can lead to a disability when it results in alcoholism —that is, a dependency on alcohol—is not to be doubted.
Yesterday, when considering how to present my submissions to your Lordships, I happened to come across the case of the Queen and the Chichester Justices, ex parte Crouch, decided in February 1981, but only reported very briefly in the journal Justice of the Peace. I have, however, managed to get faxed to me from the Crown Office a photostat of the decision—the decision of the Divisional Court of the Queen's Bench Division presided over by Lord Justice Waller and Mr. Justice Kilner Brown—a copy of which I have given to the noble Earl. It concerned an application for judicial review of a decision made by the Chichester magistrates who made a reference to the Secretary of State under Section 92 of the Road Traffic Act 1972 which was in similar terms to Section 22 of the Road Traffic Offenders Act 1988 to which I have already referred.
Mr. Crouch pleaded guilty to a drink-driving offence and as a result was fined and disqualified for 21 months. His solicitor, in the course of what I

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imagine he thought was likely to be a successful mitigation, said words to the effect that his client had a drink problem, or something of that sort. At the conclusion of the mitigation the justices' clerk said that the solicitor had impliedly indicated that his client was an alcoholic and that in the circumstances the justices should notify the Secretary of State. In his affidavit provided to the Divisional Court the chairman of the magistrates said:
"My colleagues and I took the view that because the applicant appeared to have a drink problem in the past and because he admitted driving a vehicle with a high concentration of alcohol in his blood, suggesting a significant 'tolerance' to alcohol, he may be suffering from alcoholism. The Clerk confirmed to us that suspected alcoholism is reportable to the Secretary of State as being a disease or disability under the Act. The Justices directed the Clerk to write to the Secretary of State".
Having recited the relevant facts Lord Justice Waller giving the leading judgment with which Mr. Justice Kilner Brown agreed said:
"Nothing that I say should be taken to suggest that magistrates could not properly take account of something said in mitigation on behalf of the accused person. Clearly there might be an admission of a specific relevant disability but in this case all that was said by the solicitor acting for the applicant was that the applicant had a drink problem and this was a first conviction for an offence of this nature. In my judgment, that does not suggest at that stage either that he was suffering from a relevant disability or prospective disability".
The Lord Justice referred to the Secretary of State's letter:
"It appears that during the course of the proceedings in Chichester Magistrates' Court on 29 September, it was disclosed by or on behalf of the defendant that he is an alcoholic".
The judgment continues:
"It appears from the papers that is not so. A statement that he had a drink problem does not go far enough to suggest that the applicant is in fact an alcoholic, and, in my judgment there was not sufficient material in this case on which the magistrates could properly refer the matter to the Secretary of State".
I very much doubt that either the Home Office or the Department of Transport is aware of that decision since in the guidelines issued to magistrates, seeking to encourage them to refer more cases, it is stated:
"A driver who has an alcohol or drug misuse problem may properly be regarded as suffering from a relevant or prospective disability within the meaning of Section 92. Guidelines cannot of course extend the meaning of words used in an Act of Parliament".
The noble Earl most helpfully advised me that it would be going outside the scope of this Bill to make the appropriate amendment to Section 92 of the Road Traffic Act 1988. So be it, but that still leaves it within your Lordships' powers to make provision in the Bill that when a person is convicted of an offence under Section 12A of the Theft Act 1968—the very offence which this Bill is creating—then the relevant or prospective disability referred to in Section 92 shall be deemed to include the misuse of alcohol or drugs.
I thought it right that I should give notice of my intention to submit to your Lordships an appropriate amendment to be considered in Committee. Perhaps before that event occurs the Minister for Roads and Traffic might consider cutting the Gordian knot
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generally by making appropriate use of his powers to prescribe disabilities under Section 105 of the Road Traffic Act 1988.
12.14 p.m.
Lord Lucas of Chilworth: My Lords, noble Lords will understand if I do not follow the noble and learned Lord, Lord Ackner, in dealing with a particularly narrow point of the Bill. It was upsetting to me that the noble Lord, Lord Morris of Castle Morris, should be so grudging in his acceptance of the principles of the Bill. His concluding remarks, in which he echoed the view of my noble friend the Minister that the Bill is in effect but a small weapon in the armoury against car crime, did little to undo the damage caused in his opening remarks. I should have thought that the noble Lord, speaking as he did from the Opposition Front Bench, might have given greater support to the forces of law and order in an area of crime which seems to be unique to the United Kingdom, has grown in proportion over recent years and needed immediate action—not headline action —on the part of the Government. At least one can say about the contribution of the noble Lord, Lord Meston, that though it may have been lukewarm it certainly was not grudging. We should be grateful to him for that.
This is not a new crime. That there have been, sadly, deaths and injuries reported in recent months has merely highlighted the crime of taking away a motor car. It has merely highlighted the crime of reckless and dangerous driving. We have been through all of that with the North Report. It is regrettable that it took some five years for the recommendations of the North Report to be brought to Parliament in the form of law. It came in two parts. Many sections of the the Road Traffic Act 1991, with which we dealt at some length, have still to be brought into force.
The noble Lord, Lord Morris, said that he would like to see legislation introduced to force motor manufacturers to make their vehicles more difficult to take away. That may be useful but I do not think that it is of any value in that it begs the main question. One has first to get into a motor car before one can take it away. That is not very difficult. We have all read reports. Some of us know how to get into a motor car fairly easily. If the motor vehicle is immobilised by an electronic or mechanical gadget—that is not difficult to devise—the frustration of the potential taker may cause him to do immense and irreparable damage. The noble Lord, Lord Morris, shakes his head. Although anecdotal evidence to the House is not necessarily good evidence I can tell him that I know what I have said to be true. I have spent enough years in the motor business and in the repair of motor cars which have been taken away or damaged by frustrated thieves —thieving is what it is — to know that what I have said is right.
Why is it that while motor cars built in this country are substantially the same as those built in Western European countries the offence to which this Bill directs itself is not apparent in those countries? It has

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little to do with motor cars. It is to do with attitudes towards them. The Bill has not attempted to deal with those attitudes; nor should it.
Motor manufacturers have done a great deal, but on reading reports I learn from the police authorities that 20 per cent.—that is one-fifth—of cars that are found in streets, in car parks, whether public or private, are left unlocked, with windows open, and many of them have the keys inside them. It reminds me very much of what my late father said to me about the encouragement of crime; that if you leave £5 on a desk you encourage someone whose level of temptation is low to take that money. In other words, you are a contributor towards the cause of a crime and the making of a criminal. I suggest that much of the problem devolves upon the owner of the property.
I agree with the noble Lord, Lord Morris of Castle Morris, that perhaps the insurance companies may take a rather different view of the safety of property when they are considering premiums, as indeed they do in the event of a damage claim where seat belts have not been worn. But, again, I think that that is a different issue. We have before us a very small Bill designed to bolster that which Parliament agreed to do in the 1991 Act as a result of the North Report. I think that we should give it support. When the Bill becomes enacted I believe that the magistrates will have a responsibility to represent in sentencing the feelings not only of the public but also of Parliament. In my view it is fairly useless to impose a fine of £500 where there is no £500 to be found either from the defendant or indeed from his family.
As regards the family, there are cases, which have not been mentioned in your Lordships' House this morning, of men in the age bracket of 27 to 32 of previous good behaviour and good standing who are guilty of taking away motor cars and driving them for the sheer hell of it. Therefore, I do not say that it is entirely young people who are involved.
As I said, I welcome the Bill. However, I should much prefer to see those measures in the Road Traffic Act 1991 which have not been included brought in quickly. I have a case at the back of my mind which took place two years ago which concerns me, upon which I should like to see a successful prosecution. So far as I can see all the evidence in the case—and I am only a layman in such matters—was portrayed in the car, on the pavement and in the shop window into which the thief drove the motor car. However, so far as I can trace, no prosecution has yet taken place.
I should like to encourage my noble friend the Minister to pursue with diligence this little extra piece of legislation to deal with an unhappy and unwarrantable crime.
12.23 p.m.
Baroness Mallalieu: My Lords, two weeks ago a young man who was a passenger in a stolen car being chased by police died when that car hit a tree close to my home in rural Buckinghamshire. The problem of young people who take cars and then cause damage, injury and even death with them is not a problem, sadly, confined to estates like Blackbird Leys, the
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Barton Estate in Oxford or to inner-city areas. Car crime of that sort has now become nationwide and increasingly is a curse in small country villages.
There is obviously mounting public concern and it is entirely appropriate for the Government to react and respond to it. But that reaction ought to be carefully considered first and the response that they make should be an effective one. To react hastily and inappropriately, in the way in which I fear that the Bill does, is to indulge in a mere public relations exercise, to lose an opportunity to tackle the problem in an effective way and, perhaps even more seriously for reasons which I shall outline to your Lordships if I may, to introduce an element of potential injustice into this area of the criminal law.
In 1988 the Government effectively sent out a message to young men tempted to take cars belonging to others that that offence was no longer to be regarded as a serious one. It became a summary offence triable only in the magistrates' court with a maximum penalty of six months' imprisonment. The reason that that was done was purely and simply to save money in terms of legal aid and court time. They did not want cases of that nature taking up time in the Crown Courts when the outcome almost inevitably was a sentence which the magistrates could have imposed.
While I do not suggest that those setting out to take cars went off with copies of the Criminal Justice Act 1988 tucked into their back pockets, thereafter it became increasingly obvious to those young men that, on the rare occasions when their friends or acquaintances were caught taking cars, nothing much could happen to them. It is not purely coincidental that there has been an explosion in this type of crime since that date.
As my noble friend Lord Morris of Castle Morris has already said, existing legislation provides more than adequate penalties for each of the aggravating factors which are incorporated in the Bill—not just in theory, but also in practice. Those who cause damage to cars, or are with them, can face heavy penalties under the existing criminal damage legislation, as they do under the existing regulations and legislation in connection with reckless and dangerous driving, causing death by those two actions and also, of course, manslaughter. The law is already in place to deal with those who commit such aggravated acts while taking cars.
I suggest that the appropriate response to what has happened since 1988 and to current public concern in terms of legislation would have been two-fold: first, to increase the maximum penalties for the basic offences of taking a vehicle without the owner's consent and allowing oneself to be carried in such a vehicle; that is, those very sentences which were reduced back in 1988; secondly, to consider carefully, not hastily, and then to produce appropriate legislation along the lines suggested by my noble friend Lord Morris of Castle Morris which would require motor manufacturers to fit as standard effective security devices. It is no good simply talking to and requesting manufacturers to take those steps because, unless they see some economic benefit, they are not about to do so. Noble

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Lords may remember that the former Prime Minister did just that six years ago, receiving promises and assurances from the motor manufacturers which have, as yet, failed to be translated into proper action.
I should also like to see a government initiative on public car park security involving the police, local authorities, private car park firms and so on, together with the manufacturers and insurers, to ensure that car parks whether at stations, whether they are multi-storey car parks or whether they are park-and-ride areas—and it should be noted that most of those Blackbird Leys cars to which I referred come from the Oxford park-and-ride system—are fitted with adequate surveillance equipment and proper security. The cost involved must be justified when set against the cost to the criminal justice system and the insurance industry, let alone the cost in terms of injury and death.
The Bill before us goes beyond simply raising penalties with which, as I have already indicated, I have no quarrel. First, it extends criminal liability for the aggravating features of dangerous driving, damage or injury to anyone who is involved with the vehicle beforehand, even in the taking and even when that person plays no part in the aggravating features himself. That is a classic illustration of how hasty legislation is ineffective and, ultimately, bad law. The reasoning behind it, which the Minister has outlined, is clear, and the intention is commendable: to make the offender responsible for the consequences of his acts. But the result in practice is that the CPS will have to consider, before it launches any prosecution, whether there is at least a 50 per cent. chance of a successful prosecution. That, as I understand it, is how cases are approached.
If there is not such a chance of success, it is clearly a waste of public money to proceed. The CPS knows well, as do all those who practise in the criminal courts, that juries do not like convicting accused people where, in effect, vicarious liability is alleged. While juries will willingly convict the man who, they are sure, drove dangerously or caused the injury or the death, they will be reluctant in the extreme to convict of those aggravating features the man who originally stole the car but who played no part in the driving, the damage, the injury or the death which occurred subsequently.
In virtually all cases, in reality, no prosecution can be properly advised on that basis, and the provision will become ineffective, because if there is insufficient evidence to prove existing offences, there will not be sufficient to prove the new offence against those who are not directly responsible.
Further, a law which makes a defendant guilty of the aggravated offence, even though he does no more than commit the basic offence, and the event which makes the crime aggravated is outside his control, surely offends against commonsense and justice. It is, in effect, bad law.
If the Bill deceives the public into thinking that it enacts stronger measures when, in reality, they will rarely, if ever, be effective, it also contains a minefield of potential unfairness to those who are accused under
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its provisions. Those on the receiving end of this legislation are likely, in almost all cases, to be young. These offences are usually committed by two or more people acting together. By reversing the normal burden of proof so that the defendant has to prove that the aggravating features occurred before he was involved with the car or after he had left the scene, instead of requiring the Crown to prove he was present at the time, the Bill opens up an area fraught with potential for the miscarriage of justice.
In the environment in which these offences usually occur, young and easily intimidated witnesses, likely to be motivated by friendship, loyalties and often by fear, who may well be accomplices themselves, are likely to present a defendant, who should rightly be acquitted, with great difficulties in discharging that burden of proof. To reverse that burden runs counter to the traditional principles of English criminal law. Of course it has been done in other legislation, but in cases like these, with offences of this nature, almost exclusively the prerogative of the young—often juvenile offenders—I hope that the Government will feel on reflection that it would be wrong to impose such a provision.
The Bill as presently drafted, will, I am afraid, do little to meet public anxiety, and, sadly, nothing to tackle the deep-seated causes of this type of crime.
12.34 p.m.
Earl Nelson: My Lords, I congratulate the Government on bringing forward the Bill, which I consider to be reasonably powerful and certainly worth while. It will clear up some of the ambiguities of years ago where when offences allied to taking and driving away were charged all sorts of problems arose. While I welcome the increased penalties that the Bill imposes, it appears to me that a considerable emphasis is being placed on longer terms of imprisonment. That idea might be misplaced. Perhaps I may quote some rough figures: during 1990 in the Metropolitan Police district, for example, about three-quarters of the people charged with taking and driving away and with allowing themselves to be carried in stolen motor vehicles were under the age of 21. Such offenders are, for the most part, unlikely to be sentenced to terms of imprisonment, given the ramifications of the Children Act. It follows therefore that the deterrent effect of an increase in the length of sentence is likely to be limited.
There are one or two words in the Bill to which I should like to draw your Lordships' attention. The first word is "dangerously" in Clause 1(2)(a) on Page 1. As many of your Lordships will be aware, the word "dangerously" was removed from the offence of dangerous driving under the road traffic legislation because of the difficulty experienced in specifying what it meant. I wonder whether we shall fall into the same trap with this Bill. I am aware that "dangerously" is explained in subsection (7)(a) and (b) but I can only refer to the problem encountered under the road traffic legislation. Is the definition of "road" and "public place" in Clause 1(2)(a) the same as that in the Road Traffic Act 1988? I ask that because under that Act the words have a wider definition which may fit well into the Bill.

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I was delighted that a number of your Lordships mentioned vehicle projects, because I believe that they work. The police support them and I wonder whether we could introduce them on a statutory basis with proper funding, allied to probation or supervision orders. That is a point worth considering, for some offenders at least.
As I have said before, one of the major encouragements to commit this type of crime and some others, especially among the younger elements of our society, is the ease with which offenders obtain bail and then go on to commit more and more offences while on bail. If any of your Lordships like reading horror stories they should read the reports of the Northumbria police and the Avon and Somerset police. They are horror stories in their own right.
I welcome and support the Bill, but unless the scope for refusing bail is widened considerably, legislation, no matter how well conceived, will not, in itself, stem the rising tide of motor vehicle crime or indeed other —I use the word advisedly—"popular" crimes. When my noble friend replies, perhaps he will comment upon the subject of bail as well as the other matters that I have raised.
12.38 p.m.
Lord Cochrane of Cults: My Lords, I am grateful to my noble friend the Minister for his clear exposition of a Bill which is plainly necessary. I sat practically open-mouthed in front of the television set watching a Range Rover reverse into a shop in Newcastle: this was filmed by the security camera. I wondered whether the people who did that were ever caught. The crime we are discussing is serious. It has shown up weaknesses in public order and in the construction of buildings.
As we have heard from various speakers on both sides of the House, vehicle theft is far too common and is becoming more common. Figures approaching 500,000 offences per year known to the police are a serious matter. Much of that crime is motivated by the prospect of gain from stealing the vehicle, or objects within it, or from the using the vehicle, as in ramraiding, to assist in a major robbery.
Another aspect which worries people is much more difficult to understand: why should so-called joyriding be so much more prevalent in this country than it is reported to be in the rest of Europe and elsewhere? It is easy to see how it happens if there is a group of people with scant regard for the established order. They may have gone to an indifferent or even worse school, and their parents may also have done so. There is clearly a real possibility of gaining status within the peer group by acts of daring and defiance, no matter how reckless or stupid they may appear to others of more mature judgment.
I read in the papers recently that a remand centre had been wrecked by those sent to it because they wanted to get back to the dismal and dreadful Armley Gaol at Leeds. People got brownie points in street cred if they had been there, whereas they were reckoned to have had something of a holiday if they went to a newly established place. That clearly illustrates the dilemma and to some extent the pressure that exists
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within these groups. I find it hard to imagine that, should any noble Lords find themselves in a relatively commodious gaol, they would wish to exchange it for one of the more dire types merely to establish greater credibility among others. It defies reason, but there it is, it happens.
I agree with noble Lords who have said that—although no doubt eminent sociologists of every degree will dispute the fact—if we reduce the sentence the crime becomes more prevalent. Perhaps attention should be paid to that aspect of the matter. The problem needs to be attacked on a wider front than under this Bill and I am sure that my noble friend will be able to assure us that, apart from the present Bill, the other educational and social problems will be addressed with vigour—if necessary, by the expenditure of money.
The noble Lord, Lord Morris, mentioned a point, which particularly interested me, about reducing the age limit for driving. I live in the country and have some mileage of private roads. I was therefore able to teach my two children to drive at what would have been a wholly illegal age had they ventured outside on to the public roads, however defined. I had special insurance. The car cost £20 and the children each contributed a fiver out of their accumulated savings. I believe I am right in saying that it was a useful move. That was about 20 or 25 years ago and they have both driven blamelessly since then. I hope that that will continue because early training in a good family environment contributed to that success. However, were this to be adopted on a wider scale I fear that the old Whitehall excuse that the public would not stand for it would be in the forefront of reasons for inactivity. Perhaps some middle way can be found. I merely mentioned my experience in one case with two sensible boys.
I thank the Minister for introducing the Bill and I wish it well. In conclusion, perhaps I may ask the noble and learned Lord, Lord Ackner, whether he is satisfied that, as the Minister claims, the provision would not reverse the onus of proof in a damaging way.
12.43 p.m.
Lord Airedale: My Lords, I wish to raise a small point as an addendum to the speech of my noble friend Lord Meston about the Bill not being applicable in Scotland. The Minister told us that it applied to England and Wales and that Northern Ireland was considering it but it did not apply to Scotland. I believe that my noble friend said that he had not been able so far to discover what it was about the law of Scotland that made it unnecessary for the Bill to apply there. It may be that the Scottish people are more successful in controlling their car hooligans, if I may call them that, than we are in England.
What I believe to be true is that within England and Wales the car hooligans in the north of England are just as tiresome and numerous as in the rest of the country. I do not know whether the Minister will be sable to answer the point this afternoon, but it needs to be considered. It occurs to me that the following is what may happen. Car hooligans will steal a car in

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Newcastle or some other northern town. They will have discovered that in England and Wales the law is more severe on car hooligans than apparently in Scotland. They will have realised that the thing to do is to turn north and drive sensibly until they get to the border and then all hell can be let loose. They can drive the car to destruction, smash it about and do exactly what they like because the penalties in Scotland will not be so severe as those which will apply in England.
I do not know whether the Minister can answer the point now, but the Secretary of State for Scotland had better consider carefully whether to make the Bill applicable in Scotland.
12.46 p.m.
Earl Ferrers: My Lords, I am grateful to your Lordships for most of what has been said on the Bill this afternoon and particularly to my noble friend Lord Cochrane of Cults for saying that he supported it and that he hoped that the Government would continue to deal with the other aspects of the whole social problem. I can give him the assurance that this is a matter which greatly worries us. The whole problem of vehicle taking and misbehaviour with vehicles as well as theft of and from vehicles is enormous and one to which the Government pay great attention.
I am bound to say that I found the speech of the noble Lord, Lord Morris of Castle Morris, quite astonishing. He said that it was a misdirected little Bill. If he will forgive me saying so, I thought his was a miserable little speech. My noble friend Lord Lucas said—and he was quite right—that he would have expected a speech of rather more substance and responsibility from one who occupies the position of authority which the noble Lord, Lord Morris of Castle Morris, does in his place on the Front Bench opposite. I can only say that if the views he expressed represent the attitude of his party towards law and order, then heaven help the government of the country if that party gets in. If it does not represent his party's view on law and order, then he may regret having made that speech.
The noble Lord said in a somewhat scathing way that my right honourable friend the Home Secretary attacks one problem after another, first dangerous dogs, then prison mutiny, then car crimes, as if there were something wrong about doing that. These are matters of huge public concern and it is the Home Secretary's quite proper right to do something about them. If the Government do nothing then everyone says that the Government are doing nothing, they are paying no attention at all. If they do do something then the noble Lord, Lord Morris of Castle Morris—I wish he had chosen an easier title to say—claims that the Government should not have done it.
The noble Baroness, Lady Mallalieu, differed from the noble Lord, Lord Morris. She said that the Government were quite right to do something, but then turned round and said that they should have taken longer to think about it. That is an old chestnut: if you do nothing everyone says, "You're not doing
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anything"; if you do something then everyone says, "You shouldn't have done that, you were in too much of a hurry". I believe that there must be a balance.
When the noble Lord, Lord Morris of Castle Morris, said that the Bill was a knee-jerk Home Office reaction, I found that quite astonishing. He knows perfectly well that this matter has caused enormous concern throughout the country. I suggest to your Lordships that it is quite right that the Government should do something to try to make this offence, which is causing so much disquiet, one for which the offender is not necessarily more capable of being caught but when caught is capable of being dealt with.
The noble Lord minimised the importance of the Bill. He claimed that this aggravated offence of taking a vehicle was merely an inconvenience to the owner and resulted only in the temporary loss of a vehicle. I believe that is a totally unsympathetic view to take. The noble Lord was frankly frivolous in his ensuing remarks. He said that the majority of offences were carried out by children who were younger than the age when one is permitted to drive. He said that many of the offences were committed by children of 14 and 15 years of age. The noble Lord suggested we should lower the age at which one is permitted to hold a driving licence to the age of 14. He said that a licence should be issued only when an undertaking had been given that an immediate marriage was in prospect. Frankly if the noble Lord, Lord Morris of Castle Morris, treats this matter in that frivolous manner, he will not gain the sympathy of the country.
Lord Morris of Castle Morris: My Lords, I am grateful to the noble Earl for giving way. The suggestion that the age at which one is permitted to hold a driving licence should be lowered came from a chief constable who is reported as having made that suggestion. That suggestion was reported in a debate in another place. It was not a frivolous remark.
Earl Ferrers: My Lords, the noble Lord cannot try to pass off his own remarks by claiming that someone else has made them. The noble Lord makes his own speech and he is responsible for his own remarks and for any innuendo his remarks imply. However, the noble Lord made a number of points in his speech. He said that the majority of those who take vehicles without consent are juveniles. Home Office figures show that 95 per cent. of those who are convicted of the basic offence of taking a vehicle without consent are 15 years of age or over, while half of such offenders are 18 years old or over. Therefore they will be liable for the new increased penalties.
The noble Lord also questioned the objective of imposing an endorsement and penalty points on someone who has no licence. I believe he claimed that boys were not interested in licences and there was no point in attempting to remove licences when they did not have them anyway. The noble Lord also questioned the objective of fining such offenders as he said they had no money anyway. The Government have said that parents should be responsible for their children and the noble Lord said that the parents

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probably would have no money either. According to the noble Lord, one might as well do nothing about this problem.
Endorsements and penalty points will be recorded by the DVLA in Swansea and placed on any licence which an offender may subsequently apply for until four years after the expiry of the endorsement and the penalty points. Driving in defiance of a ban is a further offence. I should remind the noble Lord that the courts are free to impose a period of disqualification of any length. That can extend way beyond the offender's seventeenth birthday, which means he cannot then acquire a licence on that birthday. It is of course for the courts to decide how long such a ban should last.
The noble Lord, Lord Morris of Castle Morris, said little progress had been made by manufacturers on this matter. I do not agree. My right honourable friend the Home Secretary has had meetings with manufacturers which have proved fruitful. I accept that more needs to be done, but nevertheless progress has been made. Central locking is now fitted as standard on 74 per cent. of vehicle models. Alarms are standard or are available at the point of sale for 95 per cent. of new models. Immobilisers are fitted as standard or are available at the point of sale for 60 per cent. of United Kingdom produced models and 42 per cent. of imported models. That progress is encouraging.
The noble Lord said the Government were doing little to combat car crime. However, I suggest that many strands are being pursued. We are encouraging manufacturers in this matter and they are responding in the ways I have described. We are also encouraging the insurance industry for the first time to take security features fitted by manufacturers into account. We are taking the lead to improve the European Community directive on vehicle security. This year has been designated car crime prevention year and the Home Office is spending £5 million on advertising and promotion in a campaign to mobilise the public to take measures against car crime and to emphasise the need for security. Major contributions are expected from manufacturers, insurers, car park operators and retailers. Therefore a great deal is being done in this area.
I now turn to the speech of the noble Lord, Lord Meston. I agree with my noble friend Lord Lucas when he said that the noble Lord, Lord Meston, was a little more encouraging towards the Bill. We must be grateful for small mercies. The noble Lord, Lord Meston, was concerned about motor projects. The Home Office is providing nearly £200,000 for motor projects in the current financial year, including over £150,000 through the young adult offenders grant scheme. That scheme supports voluntary organisations that offer supervision, in partnership with the probation service, to a wide range of offenders. Its funds are set to increase by £1 million during the next financial year. The noble Lord then addressed a tricky problem where he was supported by the noble Lord, Lord Airedale. For some reason the noble Lord, Lord Airedale, seems to have disappeared into vapour. He
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referred to a problem as regards Scotland. The law in Scotland is different and I am no expert on it. I hope the noble Lord will understand that.
Joyriders are normally charged under Section 178 of the Road Traffic Act 1988. My following point would have surprised the noble Lord, Lord Airedale, had he been sitting in his seat in the Chamber. However, as he is not sitting in his seat, he will not be surprised. The offence of joyriding under the terms of that Act carries a maximum penalty of 12 and not six months' imprisonment. That does not apply to England and Wales. In serious cases joyriders can also be charged under Scottish common law with theft and other common law offences such as malicious mischief for which there is no maximum penalty.
The noble and learned Lord, Lord Ackner, made an important, and as always, penetrating contribution. I am sorry to think that the normal Friday activities of the noble and learned Lord—whatever they may be in his exalted profession—have been disturbed. However, as his attendance today is an inconvenience to him, I hope I may assure him that that inconvenience is shared by others including myself. As the noble and learned Lord has suffered such inconvenience, I hope he will prolong it and join in the discussions on the Sunday trading Bill later this afternoon. He might as well be hung for a sheep as a goat, as it were. However, that is not a good simile as the noble and learned Lord is of course neither. However, he has spent a considerable period in the House today and I hope we shall see him a little later this afternoon and that he will be able to give us the advantage of his knowledge.
Lord Ackner: My Lords, I can assure the noble Earl that I have always enjoyed playing truant. When I get the opportunity to do so, I usually take it. This has been such an enjoyable opportunity.
Earl Ferrers: My Lords, the speech of the noble and learned Lord was also enjoyable. He referred to the problem of His Honour Judge Blennerhassett. The noble and learned Lord was concerned that we should take this opportunity to amend Section 92 of the Road Traffic Act 1988 in order to make it clear that a relevant disability which should be notified to the Secretary of State includes alcohol dependency or alcohol abuse. Whatever the merits of the suggestion —I appreciate that the noble and learned Lord spoke to me about this and has given me time to think about it—I believe this modest Bill which simply inserts a new offence into the Theft Act 1968 and makes a few consequential amendments to other legislation is not the right place to make a change which would affect the whole range of road traffic offences. As I explained to the noble and learned Lord, I shall be glad to consider his remarks and I shall draw them to the attention of my right honourable friend the Secretary of State for Transport to discover what his views are.
I was also grateful to the noble and learned Lord for drawing my attention to the judgment in the case involving William Charles Crouch. I shall undertake to draw that case to the attention of my right honourable friend.

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I appreciate that the noble Baroness, Lady Mallalieu, considered that the Government were right to introduce this Bill. She was concerned about mandatory car crime security. Of course we cannot legislate unilaterally to impose stricter requirements than those which are laid down in the existing European Community directive on vehicle security. To do so would create a barrier to trade with other European Community member states. We are therefore pressing to have the voluntary British Standard on vehicle security adopted as a compulsory European directive.
I do not accept that the Bill's aggravated offence is without precedent or is bad law. The noble Baroness was worried that it reversed the burden of proof. I do not think that it does. It says that the offence, when it is created, is a whole offence in which all those who are involved are equally to blame. That is not a reversal of proof. It is up to the defendants to show that they were not involved and it is up to the prosecution to show that is what happened. That is a normal pattern of law, as I need not remind the noble Baroness, who is far more familiar with legal matters than I ever shall be. It is not unprecedented to hold somebody liable for the acts of others when they arise from joint criminal enterprises. For example, if a gang of robbers goes out to rob and someone is killed in the process, all those involved may be guilty of manslaughter, not just the one who pulled the trigger.
A case of vehicle taking which results in death, injury or damage is objectively worse than one which does not and it is right that the law should distinguish between the two cases to make stiffer maximum penalties available for the more serious offence. I do not believe that that would make innocent people liable to punishment for what is not their fault. By committing the basic offence they incur moral responsibility for what happens. If people want to be sure that they will not pay the legal penalty for the aggravated offence they should make sure that they do not commit the basic offence. That is a matter which is entirely within their control. The fact that an offender can be held criminally liable for unintended consequences of his actions is a well-established legal principle, as I am sure the noble Baroness will agree.
I was very grateful to my noble friend Lord Lucas for his support for the Bill. He asked when the new offences in the Road Traffic Act would be implemented. The Government are gradually implementing the provisions of the 1991 Act and will bring the offence provisions into effect as soon as is practicable. However, as yet the date has not been decided.
My noble friend Lord Nelson suggested that the word "dangerous" was unclear and pointed out that it had been removed from the Road Traffic Act. I believe that my noble friend is incorrect on that point. "Dangerously" is defined in the Bill and is designed to avoid the pitfalls of the term "reckless driving" in the Road Traffic Act 1988. That is why last Session's Road Traffic Act created a new offence of dangerous
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driving. "Dangerous" is defined objectively and does not depend upon proving a driver's state of mind as recklessness does.
The noble Baroness, Lady Mallalieu, referred to the Criminal Justice Act 1988 and said that she thought that it was wrong to have reduced the penalties in that Act. We reduced the penalties for taking a vehicle without consent to reflect the practice in the courts. I doubt whether any young criminal was aware of the change. We have not returned to the old penalty simply because it was not effective in practice.
My noble friend Lord Nelson was anxious about what happened to joyriders who are on bail. Government policies are already directed towards reducing the likelihood that people on bail will commit crimes. That is achieved through bail information schemes which allow magistrates better to identify defendants who can be released on bail and by increasing the provision of places in bail hostels where people on bail can be monitored to minimise the risk of further offending without the need to remand to prison. The Home Office has a programme to provide 1,200 additional bail places at approved hostels by 1994; 500 of those have already been delivered and 600 to 700 places are already occupied by defendants who were on bail before the programme began.
I should like to conclude by making a point which was made by my right honourable friend the Secretary of State in another place. It is a simple one. The law has to be judged by its results. There is general agreement that the criminal law is not dealing adequately with those who take other people's cars and who thereby cause damage, injury or even death. When I opened the debate I explained what those problems are and how the Bill will remedy them. It is designed to fill an unacceptable gap in the law. There are those, including some in this House, who say that it is inadequate, that it does not do all that it should and it has not been properly thought out. Everyone is entitled to their views, but in my judgment it would be wrong if the Government had seen this kind of malpractice occurring—a malpractice which creates fear, creates damage and sometimes even causes death —and had done nothing about it. I suggest that this is a modest Bill and I commend it to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Dog Control and Welfare Bill [H.L.]
1.6 p.m.
Lord Houghton of Sowerby: My Lords, I beg to move that the Bill be now read a second time.
The Bill is the one to which I referred in my speech on the humble Address in November. I informed the House then that I intended to bring the Bill forward in the hope of improving and strengthening the machinery of consultation which Ministers would wish to have on the growing complexity and political controversy over problems relating to dogs.
The Bill is short and it is simple. Its Long Title is confined to a single purpose. That purpose is to

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provide Ministers with a sound base for representative and responsible advice on controversial but nonpolitical matters, which seems to be strikingly absent at present.
When noble Lords have asked me what the attitude of the Home Secretary might be in relation to the Bill I have said that the Bill should be the answer to any Home Secretary's prayer. However, one cannot be sure whether Home Secretaries say their prayers. When they do not they get into serious trouble.
The provisions of the Bill will be familiar to all noble Lords who have any contact with the Farm Animal Welfare Council. The purpose is to bring the problem of dog control and welfare, with all its growing significance, controversy and social interest, into line with farm animal welfare, which has been subject to a similar advisory body for many years past. It is familiar territory in the field of government procedure and public administration.
Another link with the advisory system is provided through the Animals (Scientific Procedures) Act 1986 which established a statutory procedures committee, which the Home Secretary of the day badly needed. The 1986 Act gave the Home Secretary powers of decision on the relative value of certain experiments in the light of the purpose of the experiment and the amount of suffering that would be caused to animals in the research. He felt that he needed some expert and responsible committee reporting in public, and especially to Parliament, to protect him by advising him on what decisions he should take in difficult cases. I am not suggesting that anything quite so difficult may arise in connection with dogs, though we got dangerously near it last year.
I do not need to go through the Bill in detail. It is almost a copy of the Farm Animal Welfare Council constitution, which incidentally is not a statutory body. It is to establish a body of up to 18 or so people representative of expert opinion, such as veterinary surgeons, lawyers, intelligent lay people and dog breeders: those who know what they are talking about and who can provide between them the kind of advice on which Ministers can rely.
The question arises: is there a case for bringing into operation machinery of this formalised character in place of the rather sporadic and disconnected kind of consultation that Ministers may be having on their difficult tasks? One of the complications here—and I ought to refer to it right away—is that this advisory council would cover an interdepartmental area. The Farm Animal Welfare Council is responsible to the Minister for Agriculture. But in this case we have the Secretary of State for the Environment, the Secretary of State for Home Affairs, the Minister for Agriculture, and, as a separate matter, the Secretary of State for Scotland, all interested in the position of dogs.
The long discussions that took place two years ago on a national registration scheme were frustrated by the fact that those talking to officials had to talk to representatives of three separate departments. That is a difficulty in moving that a committee be appointed by a Secretary of State. But the Bill envisages that the Government themselves would find ways and means
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of appointing an advisory committee that would be representative of the boundaries of the departments concerned.
The question is whether this Bill is needed. First, I am bound to say that what is proposed in this Bill does not require legislation at all. It is a non-statutory advisory committee that I have in mind, but I am introducing a Bill on the subject in order to establish a claim for the attention of the House and outside the House to the worries that I have had—and I have been deeply worried in the last couple of years—about the way in which the dog question is being handled. However, if the Ministers were so disposed, there would be no need to have a Bill at all. I shall come in a minute or two to the future of the Bill.
In the meantime I want to make out, to the satisfaction of your Lordships, the case for this form of formalised advisory machinery. Surely it lies in the experiences that we all so vividly remember in the last couple of years. I am not going to take your Lordships back over the controversy concerning the dog registration scheme, or indeed the Dangerous Dogs Bill of last year, but surely we all realise how distressing it was to see the Government in the kind of situation in which they found themselves.
Certainly the Home Secretary cannot have taken any responsible advice about his first announcement of what he regarded as the remedy for the danger of the pit bull terriers. He was of the opinion that they should all be destroyed, and he made his intention to set about doing that public. It was only when those whom he should have consulted insisted on seeing him to tell him that it was not on, that this was outrageous and could not possibly stand as part of government policy on animals, that he had to begin the retreat. That should never have arisen, no matter what the emergency at the time. The emergency was a press emergency. It was a tabloid splash, and there is not the slightest doubt that it disturbed the cool and the temper of Ministers at the time.
It may be argued that, however bad things were then, they have been remedied since. For one thing the Dangerous Dogs Act of last year provides a statutory requirement for consultation between the Home Secretary and others on questions arising from that Act. There is a section in the Dangerous Dogs Act which requires that the Home Secretary undertake certain consultations. This Bill in its last clause provides that those consultations would be channelled into the proposed Dog Control and Welfare Council.
There is one aspect concerned with existing arrangements to which I should refer. Ministers may be satisfied that there can be adequate consultation and that they would exercise proper discretion in seeking the help that they might need. But what about the public? What about Parliament? The great advantage of formalised committees of advice and consultation is that they receive evidence, they make reports, and all concerned are told who was advising, and some account is given of the consideration that the committee gave to the problems before it. It is not enough for the Home Secretary or any other Minister

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to say, "I have consulted with representative bodies". One does not know how he has done so or what ground was covered in such consultations.
One cannot always be satisfied that the range of consultation should be confined to organised opinion whether in charitable or campaigning welfare organisations or in professional bodies. It is as well that it should be known by the public, whose dogs after all are involved in this, who gave evidence, what they said, and what attention was paid to it. It is much better, if one is going to establish a firmer foundation for democratic government and consultation, to get one's machinery reasonably formalised, well understood and commanding confidence; whereas consultations between Ministers and societies which are not made public, and are not required to be made public, do not always give people that confidence.
Therefore there is a strong case for this Bill. However, I do not think that I can ask the House to impose on Ministers a form of machinery that they are perfectly well able to provide for themselves, unless it is felt that it is in the public interest to do so. I should much rather that it were done by persuasion, as in the Farm Animal Welfare Council, or by ready acceptance, as in the Procedures Committee under the 1986 Act, and with general accord where advisory committees have been appointed in every field of public administration and ministerial contact, which have smoothed the path of administration and legislation. If the Government intend to say that they are satisfied that the present informal state of consultation with representative bodies is adequate and satisfactory, that proposition needs some examination.
In the time available to me I have not been able to complete all the necessary research into attitudes toward the problem. I have worked very much on my own because I did not want to feel that this proposal must have the consent of a large number of organisations before being introduced. I feel very strongly that it is in the interests of Parliament, the government and the public that matters of such deep concern to so many people should come to the surface and be openly discussed. There is much lacking in the field of information at the present time. There is an almost total absence of reliable statistics.
I read the Veterinary Record avidly every week and I should like to refer to two matters which I saw in a recent issue of that magazine. First, the verdict on dogs in relation to the events of the past two years is described as "unedifying", which is perhaps a dignified reproof from a veterinary body to Her Majesty's Government. Secondly, there is a reference to a report made by the Birmingham Casualty Centre on incidents in the past few years in which people who have been attacked by dogs have required plastic surgery.
The relative delinquency of different breeds of dog was examined. The statistics, which cover the serious cases and a particular area, are somewhat surprising. The kind of tabloid shock tactics used about pit bull terriers, for example, were not supported by statistics over that limited area of statistical record. Other dogs,
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such as Jack Russells, were involved. Pitbull terriers were not the principal culprits; yet they were the dogs which were marked down for execution. It so happens that the Staffordshire bull terrier came out top of the league in the Birmingham area. They probably had a near miss for execution but at least at the present time they do not feature in the Dangerous Dogs Act and there is no move to put them in it. Other dogs, such as rottweilers which bite now and then and get a lot of attention are not on the hit list.
One expects from advisory machinery of this kind proper statistical information. I am told that no such information will be available earlier than the end of this year because it has not been collected. Nobody knows how many dogs there are in this country. Since the abolition of the dog licence fee nobody has known or cared how many dogs there are. There was no chance given to the public to have their dogs brought within the scope of "reasonable appreciation of danger" or welfare or anything else. Statistical information is badly needed and this advisory committee could set about obtaining it.
But there is much else which needs attention and which does not come within the scope of the Home Office or the Department of the Environment. That includes education in dog care. Where is dog welfare in the administration of government at the present time? Who is responsible for dog welfare? There is no dog welfare ministry. There is probably a very strong case to be made for a minister for animal welfare, but that is a different constitutional matter. I suggest that such a council would have standing and a range of operations which would be much more adequate for our requirements than anything we have at the present time.
I wait to hear what the Minister says before I make my comments on what is to be done subsequent to today's debate. I confidently hope that no noble Lords wish to obstruct the Bill's Second Reading in the House this afternoon and that we can go on from there. How we go on is a matter which will require my attention a little later, after the Minister has spoken. I have various ideas on what might be done in the near future to advance this matter in circumstances which probably could be more fruitful than banging at the door of legislative opportunity in the final session of a Parliament.
We all believe that there will be many matters of pressing importance coming before us between now and the general election. We must be realistic, especially about a Private Member's Bill in the House of Lords, which has no right of entry into the House of Commons. I shall not be surprised if the Home Secretary says, "For heaven's sake, don't let us have a dog Bill in the House of Commons at this stage in this Parliament. Let sleeping dogs lie". While the lying dogs are sleeping and while there is something of a lull on dogs in the sense of mental disturbance ministerial-wise, I want to see a little more rational consideration of the problem. I beg to move the Second Reading of the Bill.
Moved, That the Bill be now read a second time. —(Lord Houghton of Sowerby.)
1.28 p.m.
Lord Stanley of Alderley: My Lords, if there is one matter that the Government have failed to address or on which they do not have any coherent policy, it must be dog welfare and control. Certainly that must come top of the list for ineptitude. When I say "the government", I hope that the noble Lord, Lord Houghton, will agree that that does not mean simply the government in power today but governments in the past. Therefore I welcome the noble Lord's endeavours today, and indeed over a long period of time, to try to drive a little sense into the Home Office's incompetence regarding dog control and welfare.
My criticism is considerably more fierce than the veterinary publication from which the noble Lord has just quoted. My noble friend Lord Astor may say that there is no need for either this Bill or the formation of a Dog Control and Welfare Council. I agree that there is no need for the Bill for the reasons which the noble Lord, Lord Houghton, has just given. However, I very much hope that my noble friend will be able to say that the Government will give serious consideration to setting up such a council.
There is a need for a continuing long-term look at our dog problem. Certainly the public are and have been demanding it. The last time that I was involved in your Lordships' House on issues concerning dogs, I received over 500 letters criticising the Government's ineptitude. It is absolutely no good for my noble friend to say that everything is fine, that the Home Office understands the problem and receives plenty of advice. The proof of the pudding is in the eating. The actions taken by the Government each time have been of the knee-jerk type. The latest horror was the Dangerous Dogs Act. The noble Lord described its weakness. Indeed, some of the reactions by Ministers and departments over dogs have suggested to me that there must be a rabid dog wandering around their department.
The noble Lord, Lord Houghton, has suggested a Dog Control and Welfare Council to provide continuing advice. The council would be able to warn of problems and suggest a sensible way forward. I hope that my noble friend will give the noble Lord's suggestion careful and sympathetic consideration.
1.31 p.m.
The Viscount of Falkland: My Lords, we on these Benches support the philosophy behind the Bill introduced by the noble Lord, Lord Houghton, today. Most of the speakers in the debate today have spoken at some length on the subject of dogs on various occasions. The last occasion was during the passage of the Dangerous Dogs Bill through your Lordships' House.
Criticisms of the Dangerous Dogs Bill were made during debates on the Bill which arose out of public reaction. The Bill was conceived in haste and as a reaction to some regrettable incidents which took place in which people, notably children, were attacked
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by dogs which had not been kept under proper control. Most legislation on dogs originates from Private Bills in Parliament.
The Government take little notice of problems relating to dogs in our country unless there is some public commotion which prompts immediate action. The Dangerous Dogs Bill was one such example. Effectively it dealt with only one breed of dog, the pit bull terrier. Most of us know of the problems with regard to the pit bull terrier, but it does not mean that all pit bull terriers are a menace to society. In retrospect that restriction has been shown as one of the drawbacks to the Bill. There was a sad case with regard to a pit bull terrier which was owned by a young person who, unwisely as it turns out, took the muzzle off that bitch in order for it to have a drink from a puddle in a street. He was observed by a police officer who took the correct action. The owner of the dog was taken to court and under the conditions of the Act the magistrates could take no action other than to order the dog's destruction. That seems to be a drawback of the Bill. Contrary to justice in this country, the Bill allows no discretion by magistrates with regard to infringements of that law. That factor was anticipated only by the noble Lord, Lord Houghton, as I recall, in his speeches during that Bill.
We welcome the idea of a council, whatever may be the fate of the noble Lord's Bill. There are various aspects of dog life in this country, not the least being the education of people on the problems of owning dogs. The control of the population of dogs is important. We have dealt with various other aspects: for example, puppy farming and the potential evils of that trade.
If I quote the noble Lord, Lord Houghton, correctly, he said that what is required more than anything else is rational consideration of the problem. I agree with that. I believe that steps suggested in the Bill would lead to a more rational consideration of the problem of dogs and the ownership of dogs in this country. For anyone who reads Hansard or who listens in your Lordships' House, I hope that the debate will add to an understanding of the problem. Perhaps we have moved a small way towards a rational consideration of the problem.
1.35 p.m.
Viscount Montgomery of Alamein: My Lords, the noble Lord, Lord Houghton, began his speech by saying that no Bill was really necessary. I hope therefore that he will not press the matter. However, he is quite right—it has been echoed by the noble Viscount, Lord Falkland, and my noble friend Lord Stanley—that dog control is a subject which has been ignored. We have made many attempts in this House to do something about that subject. The dog licence was abolished. However, the price of the dog licence should have been increased enormously. That would have been a single, simple issue. Inspired by my noble friend Lord Stanley, we attempted to introduce a dog register and the Government failed to do anything about it. I believe that they are culpable in that matter and will be for a long time to come.

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The issue needs to be addressed. Dogs are a problem, especially in the urban environment. The Bill has been couched in consideration of the agricultural scene. It has been based on the animal welfare scheme. One of the biggest single problems relates to dogs in the urban environment. On many occasions in your Lordships' House we have had discussions about the problem of dogs fouling pavements. It is not only insanitary and unsightly, it is extremely unpleasant. As it stands, the law seems incapable of doing much about the problem, which continues. I believe therefore that something has to be done about such problems. The noble Viscount, Lord Falkland, said that today provides an opportunity for rational discussion. I do not believe that it is an opportunity for introducing more legislation. The statute book is cluttered with a great deal of unnecessary legislation. Some of us seek from time to time to get some of it taken off the statute book. On occasions we feel a little like King Canute in our failure to get legislation off the statute book.
The issue of dogs in the urban environment in particular needs to be addressed. The only way to tackle it is either to have an increased dog licence fee at the proper price or to have a dog register. The cost of keeping dogs in particular in the urban environment is high. Anyone who owns a dog has to spend an enormous amount of money on feeding it. One has only to look at television to see the volume of advertising which is devoted to dog food. It indicates that that is a multi-million pound business. People who own dogs wish to look after them. They should be protected. No one would mind paying a fee for a dog registration. That is what we should have done in the first place. It is a great tragedy that it never happened. The noble Lord, Lord Houghton, has done the House a service by drawing our attention to the matter today. I hope that the Government will pay some attention to his ideas.
1.39 p.m.
Lord Soulsby of Swaffham Prior: My Lords, one should not doubt for one moment the sincerity of purpose with which the noble Lord, Lord Houghton, brings forward the Bill on dog control and welfare. It is well acknowledged that he is associated with a large number of organisations concerned with the welfare of' animals, in particular with the welfare of dogs. Indeed, as has been mentioned by other noble Lords, there is a plethora of organisations concerned with the welfare of dogs such as the British Veterinary Association, the Kennel Club, the RSPCA, the National Canine Defence League and so on.
There is also an abundance of legislation. According to present reckoning, there are about 30 pieces of legislation dealing with dogs and that makes life difficult in terms of understanding the law. When I first read the Bill I thought that the noble Lord, Lord Houghton, wished to add another piece of legislation to that number. Although he wishes to create a body which is non-legislative it would add to the mass of directions that already exist on the statute book or in a non-legislative form. The noble Lord said that there
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would be a similarity between it and the Farm Animal Welfare Council. I submit that the circumstances that led to the setting up of the FAWC were somewhat different from those which now pertain. When the FAWC was set up there were few if any bodies concerned with farm animals as opposed to domestic animals or domestic pets. It was necessary for the FAWC to draw up guidelines and codes of conduct for the treatment of farm animals. Those have been particularly effective. I am not sure that the situation now relating to dogs is the same as that which then related to farm animals. One wonders about the wisdom of adding another body to the list in order to do the type of work that is already done by a variety of voluntary organisations.
After reading the brief that the noble Lord kindly provided in respect of the Bill I wish to emphasise certain points that are already being attended to. For example, there is mention of the need to monitor and review the emergency measures for rabies control in the event of an outbreak. They already exist under legislation relating to the diseases of animals and extensive programmes will be put into operation should rabies enter this country. The Ministry of Agriculture's animal health division is well prepared for that event. Similarly, there is an extensive programme of spaying and neutering of dogs by the RSPCA, another issue mentioned in the noble Lord's brief for the new body to take up. Again, that is already under control and the aims and objectives of the RSPCA coincide with those of the noble Lord.
Nevertheless, there is a substantial amount of common ground in the general philosophy put forward in the Bill by the noble Lord, Lord Houghton. A particular point which curiously he has not mentioned but which has been mentioned by other noble Lords in the debate is the need to consolidate the legislation dealing with dogs in this country. There are already some 30 pieces of legislation. They are widely disparate and urgently need bringing together. An effort to do so would clarify the situation in respect of dogs. We could then go forward and see what needs to be done because it is difficult to find one's way through the mass of legislation.
That area of common ground does not extend to a level at which I could give full support to the noble Lord's proposition for a welfare council for dogs. However, I believe that certain action should be taken by the Minister concerned in order to solve some of the problems identified in the Bill, in his speech which introduced the Bill and by other noble Lords. Although not being able to support the Bill in full, I believe that action must be taken in respect of some of the issues. I hope that that will be done.
1.45 p.m.
Lord Morris of Castle Morris: My Lords, this is a Private Member's Bill. Therefore I do not speak on behalf of the Labour Party which maintains a neutral stance on such matters—I speak for myself alone. The Bill appears to me to be necessary. To be more precise, I believe that something should be done about the situation which the Bill seeks to address. For example, recent legislation on dangerous dogs has made it clear

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that a far wider and more comprehensive overview needs to be taken on the whole issue of dog control and welfare. That point was made clearly by the noble Lord, Lord Stanley, and the noble Viscount, Lord Montgomery.
Your Lordships will recall that last year in our debates on dangerous dogs we ranged far and wide beyond the immediate questions before us. We wandered all over the place and became tangled up with issues such as local and national registration schemes, breed definition, import control regulations and so forth. We might easily have lost our way and lost sight of the original issue were it not for the wise and calm guidance given to us by the Minister, which I recall with considerable admiration. Our confusions and excursions were clear evidence of the need for an advisory body of some kind. The model put before us is the Farm Animal Welfare Council. I take seriously the reservations of the noble Lord, Lord Soulsby, who has forgotten far more about veterinary science than I shall ever know.
What little I know of the FAWC and what little I have seen with admiration proves that it was needed at the time. It can point to real and helpful activity in pursuit of its aims and objectives. Advisory bodies of that kind, provided that they are never allowed to swell and develop into some bloated quango which they were never originally intended to be, are a useful and characteristic feature of our national life. They allow voluntary expertise to be at the disposal of government departments. That can be achieved over a reasonably extended period of time. Therefore they can be more valuable than the type of quick, professional consultants employed for specific tasks who are here today and gone tonight.
Perhaps your Lordships will pardon a personal example. I have had 15 years' experience of a successful advisory body called the Museums and Galleries Commission. It assisted the Government in planning and legislating for the art galleries and museums of the United Kingdom. Although trying to achieve a united opinion among the nation's 3,000 and more museums is closely akin to the problem of trying to herd cats, successive governments were kind enough to say that they found our reports, our monitoring and our suggestions useful. Above all, the commission was remarkably cheap and excellent value for money. The same would obviously be true for the proposed dog control and welfare council.
I believe that it is necessary for some such body to be set up to look at our partial and piecemeal legislation. It should be proactive in suggesting cohesive and coherent ways ahead in the matters of planning and policy. Clearly there is no body already in existence—not the Kennel Club nor even the RSPCA—which goes anywhere near fulfilling that kind of role. Yet stray dogs roam our streets, dangerous dogs attack and kill small children, research into health problems caused by dogs is in its infancy and there are frequent allegations that dogs are stolen and maltreated in the interests of so-called research into cosmetics and tobacco. As my noble
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friend pointed out, no one can give adequate and accurate statistics showing how many dogs this country has.
I point briefly to three areas in which a Dog Control and Welfare Council would be helpful. First, there is the vexed and difficult matter of a national dog registration scheme. If I remember correctly, our debates last year were enlivened by the history of the dog belonging to the noble and learned Lord Lord Hailsham. That sticks in my memory and I am sorry that he is not here to tell us more about his dog today. Those debates showed that on that issue we are divided about the advisability of a national scheme. Surely it would be advantageous for a highly qualified, expert, well-informed, objective, dispassionate body to take away that question, to consider it in depth and, if necessary, at length. We could then return to the matter with the relevant research evaluated and the options considered. We may then reach a sensible conclusion.
Secondly, the council would be best placed and well able to build up a relationship with the local authorities, many of which have introduced various dog warden schemes with varying degrees of success. The council could well devise guidelines and descriptions of best practice which would extend the scheme, lower the cost and go a long way towards solving the problem of stray and unwanted dogs at a national level.
Thirdly, the council could act if not as a policeman then as a kind of traffic warden to help to regulate some of the dangerously unpleasant abuses to which dogs are liable. I am thinking in particular of abuses in breeding and selling practice, especially in the matter of puppy farming. The noble Viscount, Lord Falkland, referred to that and I have some experience of it. In west Wales a year or so ago reports flooded the newspapers of unbelievable cruelty and neglect on puppy farms which had obviously been set up by hard-pressed owners of farms and small holdings purely and simply as a means of avoiding bankruptcy, to make a quick profit and to keep the wolf from the door. They were run by people who had no professional training, no professional veterinary advice, no expertise, ludicrously inadequate facilities and no love for animals. It may well be that a Dog Control and Welfare Council could prevent abuses of that kind, to say nothing of the commercially arranged dog fights about which one hears so much in rural areas—and they are far more common than we know. It would be a signal service to the community if a Dog Control and Welfare Council were able to sponsor research into those scandalous matters which are at present the concern only of the police and the understaffed inspectorate of the RSPCA.
As proposed, the council would be an expert and professional body. It would be effective and cheap. As regards dogs, the need is great. It is clear that the Government have, by their recent legislation on dangerous dogs, accepted a degree of responsibility for the welfare and good treatment of dogs kept as pets. The establishment of a council for control and welfare seems to me an obvious and praiseworthy next step forward. At all events, I suggest that the onus is

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on Her Majesty's Government to propose solutions to the problems which confront us here and to tell us, if they do not like this proposal, their suggestions and when should they be implemented.
1.52 p.m.
Viscount Astor: My Lords, this is a day in your Lordships' House which is very much a Home Office day. Fortunately, no noble Lord has yet suggested a Bill to prevent car theft with a dog on a Sunday so we are lucky that we can deal with those three matters separately. I suppose that the Sunday trading law discriminates against dogs because one can sell horse fodder on a Sunday but not dog food. However, that is a different matter.
The commendable interest of the noble Lord, Lord Houghton, in animal welfare is well known to your Lordships' House. Indeed, it is less than two months since I last had the opportunity to discuss animal related matters with him. That was in the context of the annual report of the Animal Procedures Committee. Last year we also discussed badgers and, of course, dangerous dogs at some considerable length.
Turning to the Bill before us today, it is only right to say at the outset that the Government have some reservations about the need to create a statutory council as the Bill proposes. Many of our reservations were raised at the Committee stage of the Dangerous Dogs Bill when the noble Lord, Lord Houghton, tabled an amendment requiring the Home Secretary to consult with a body along the lines of the Dog Control and Welfare Council before deciding whether to use the reserve powers in Section 2 of the Act to apply controls on types of dog which he considers present a special danger to the public. I will not, therefore, rehearse our anxieties at great length on this occasion. However, I should just like to bring a few points to the attention of your Lordships' House.
The Bill appears to us to be unnecessary in that it would create a statutory body to fulfil functions already carried out effectively through existing channels of consultation. As the noble Lord, Lord Houghton, has already outlined, the Bill provides for the establishment of a council to advise the Secretary of State on matters concerning dog welfare and control.
The Home Secretary already seeks and receives advice from bodies such as the RSPCA, the Royal College of Veterinary Surgeons, the British Veterinary Association and the Kennel Club. All those bodies, and others, were consulted during the passage of the Dangerous Dogs Bill. Both before and since then there has been frequent constructive consultation on dangerous dogs and other animal matters. I am not persuaded that the creation of the new Dog Control and Welfare Council would improve upon the flexible non-statutory arrangements that are already in place and which work well as they stand. Rather, I fear that the establishment of a permanent committee could lead to a great deal of additional administrative work and unnecessary expense. Indeed, all that might actually make the process of consultation overly
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bureaucratic and reduce its effectiveness. It could result in the loss of some of the flexibility that characterises the current arrangements. That would not be desirable.
The current scheme of things works well as it is and I can assure your Lordships' House that we have every intention of continuing our practice of consulting expert bodies as necessary on a whole range of dog and animal welfare issues generally. We shall also continue to receive, with interest, representations from such bodies if they wish to bring matters to our attention.
As an example of recent co-operation I am able to advise noble Lords that it was partly as a result of representations from the British Veterinary Association and other animal welfare bodies that it was decided to give owners of pit bull terriers, and other specially exempted dogs, an extension to arrange for their dogs to be tattooed in view of some problems which had been reported to us. The British Veterinary Association was able to pass on the anxieties of its members directly to the Home Office. There was no need to wait for the next pre-arranged meeting of a council or to organise hastily an extraordinary meeting. Instead, those most closely involved made direct representations and recommendations which were received, considered and acted upon. That seems to be an eminently sensible way of going about matters.
I should also say that animal welfare issues prompt one of the largest post bags of the Home Office and a good deal of these letters from the public are about dog-related matters. All these letters are read and the views expressed in them are noted. We are, therefore, very much in touch with what the public think and say on dog issues.
I turn now to the amendment to Section 2 of the Dangerous Dogs Act, which this Bill proposes. As noble Lords will be aware, Section 2 already requires the Home Secretary to consult bodies concerned with breeds of dogs, animal welfare, veterinary science and practice before deciding whether to impose restrictions such as muzzling and leashing on a whole breed or type of dog which he considers presents a serious danger to the public. Section 2(4) of the Act, therefore, acknowledges that specific consultation is desirable before decisions about a particular breed are taken.
Moreover, the sort of interests that he must consult as envisaged by the proposed amendment to the 1991 Act are virtually identical to those which the Home Secretary must consult under present arrangements as set out in Section 2(4). All this indicates to me that when considering the Bill Parliament had in mind consultation with the same group of experts as is proposed by the noble Lord, Lord Houghton. That leads me to conclude that it would be unnecessary to amend Section 2 of the Dangerous Dogs Act 1991.
To conclude, while I understand the intentions of this Bill, which I take to be to ensure that the Government continue to be fully briefed and properly advised on matters concerning dog control and welfare, I do not think this Bill is necessary to achieve those ends. As I said, consultation with relevant bodies already takes place as necessary. I can assure

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your Lordships that we will continue to consult and receive representations from the kind of bodies which the Bill proposes will make up the council, and many others.
It has been a useful debate and, as always, your Lordships have been most eloquent on the subject. My noble friend Lord Stanley of Alderley attacked, if I may call it that, the Government's record on dogs brandishing what I might call a "verbal Bonio". He was a little unfair. The Dangerous Dogs Bill was brought in to meet the valid anxieties and problems that are arising in the dog world.
The noble Viscount, Lord Falkland, referred to unmuzzled dogs. Obviously I am unable to comment in detail on the specific case referred to by the noble Viscount. However, I understand that the owner has appealed against his conviction under the Dangerous Dogs Act and it is yet to be decided whether that appeal will be heard. The noble Viscount also said that the Dangerous Dogs Act only applies to pit bull terriers. It is important to remember that Section 3 of the Act, which creates criminal offences of having a dog dangerously out of control in a public place, applies to all dogs whatever the breed. That is an important point.
My noble friend Lord Soulsby of Swaffham Prior, who I know had to leave to attend a Select Committee, as always with his great expertise in the veterinary field pointed out that already a number of organisations consult the Home Office. I believe that he agreed with me that an extra organisation would not necessarily be the most useful answer.
My noble friend Lord Montgomery of Alamein and the noble Lord, Lord Morris of Castle Morris, referred to dog registration. Noble Lords will remember that in opposing dog registration the Government introduced positive measures for the control of dogs in the Environmental Protection Act. Those comprise the seizure and detaining of strays and a duty on the district or borough council to enforce the collar and tag law. The presence of a tag on a dog is the simplest and most effective means of identifying an owner and dealing with strays. The Government declared their commitment to bringing those provisions into force in April 1992. A draft of a joint Home Office, DoE and Welsh Office circular regarding implementation of the relevant sections of the Environmental Protection Act and a draft of the proposed regulations associated with the provisions have been published for public comment.
We already have in place more than adequate arrangements for consultation. I would prefer to keep our consultations on this more flexible basis rather than risk over-formalising arrangements by establishing the Dog Control and Welfare Council. However, your Lordships have made a number of valid points. It would, of course, be foolish for the Government to claim that there could be no room for improvement in the way in which we consult interested bodies on dog matters. The Government are not inflexible and I shall be happy to undertake to consider any suggestions for such improvements as the noble Lord, Lord Houghton, may make to us, either in this House or outside.
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I believe that that is as far as I can go. I know that it is not quite so far as the noble Lord, Lord Houghton, would wish. However, we are aware of the issues involved and we will be happy to undertake to consider any suggestions for improvements that are made to us. In the light of that undertaking I hope that the noble Lord, Lord Houghton, will consider whether or not he wishes to move the Bill for a Second Reading.
2.4 p.m.
Lord Houghton of Sowerby: My Lords, I am grateful to noble Lords on both sides of the House who have taken part in this discussion. I admire the forcefulness, brevity and competence of the speeches to which I listened. It has been a chorus of approval, if not complete very nearly so, for the Bill. It has come from quarters which the House will respect and the Government will feel are significant.
The Bill is an initiative on my part, of that there is no doubt. It is not the first time that I have taken an initiative in this field. I was the first chairman of the Joint Advisory Committee on pets in society. I produced the first report on dogs in society. That was followed by an inter-departmental committee which also produced a report under Mr. Batho which was closely related to my own. I have taken an interest in the subject ever since. I am president still of the Joint Advisory Committee on pets in society.
The debate gives me the strength I was hoping for to take my initiative further and bring together bodies with which I am directly or indirectly associated and to examine the whole question in the light of the debate. I hope that informal contacts can be established between one or two of us and the Government to see how we can move forward from here. In the meantime, I shall take no steps to take the Bill further in the House. However, I hope that the Bill will receive an unopposed Second Reading and establish the platform upon which the House may return to the matter at some future date.
In conclusion, perhaps I may say that I am trying, this time round, to guard against animal welfare being flung about in the election campaign in a manner which will only exacerbate feelings and do the causes no good. We have an opportunity in the lull between the emergency of 1991 and the future Parliament for the further study of the matter. If the House gives the Bill a Second Reading I shall defer further stages of the Bill and try to carry our joint discussions one stage further. I commend the Bill to the House.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Sunday Trading (Amendment) Bill [H.L.]
2.8 p.m.
Viscount Brentford: My Lords, I beg to move that this Bill be now read a second time.
The aim of the Bill is quite simple: it is to increase the maximum penalty for offences against Part IV of the Shops Act 1950 from £1,000 to £50,000. The sum of £1,000 will be increased to £2,500 in October by the

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Criminal Justice Act 1991, but it is still a very small sum. I would much rather be supporting a Bill being introduced by the Government at the present time, preferably along the lines of the REST proposals to reform the law of Sunday trading rather than bringing in this brief Bill on the enforcement of the Sunday trading law. I believe that the REST proposals are a fair and reasonable compromise between those, on the one hand, who want total deregulation of Sunday trading and those on the other who want to retain the present law or even to tighten it up more than it is. I understand that there are moves in another place to ask for leave to introduce a Bill along those lines next week.
Perhaps I may turn first to the present position concerning the Sunday trading law in England and Wales. I am sure that all noble Lords are very well aware of it. A number of the large supermarket chains, but by no means all, including Sainsbury, Asda, Tesco and Safeway, have decided to continue their campaign of law-breaking into the New Year. That is the present position which we are facing. That challenges the supremacy and authority of Parliament in 1992.
Perhaps I may next deal with the review of the legal position and what has been said both in this House and in another place in the past couple of months. It has been suggested that the intervention of European law is to blame for the current shambles that we face today. In my view nothing could be further from reality. In his Statement, repeated in this House, my right honourable and learned friend the Attorney-General confirmed that a reference to the European Court of Justice does not suspend UK law (Official Report, 27th November 1991; cols. 1348–9). In answer to questions from me my noble friend Lord Ferrers has confirmed that more than once.
In that case the contrary proposition which has been put forward by the law-breaking retailers is seen for what it is —that is to say, a deliberate and planned flouting of the criminal law for profit. The European Court at any time has hundreds of references outstanding from the 12 member states. It is absurd to argue that a mere reference neutralises, if I may use a neutral word, the laws of a country pending the court's decision. If that were the case there would be legal chaos throughout all 12 countries of the Common Market.
Three cases have already been brought to the European Court to test whether laws restricting Sunday trading are contrary to the Treaty of Rome. These cases came from France, Belgium and Britain, and in all three the court ruled that countries are entitled to make their own Sunday trading laws and that none is in conflict with the Treaty of Rome. Eleven of the countries certainly have laws restraining Sunday trading or Sunday employment. There is consensus that some restraint on Sunday trading is in the interests of the working population and also has wider social benefits for family life. Against that background for law breakers to appeal to Europe as a defence for their action carries no weight at all.
Perhaps I may now turn to the meat of the matter and the real reason why the Shops Act is currently
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unenforceable. It is due to another decision by the Court of Appeal which requires local authorities to give a cross-undertaking for lost profits when seeking injunctions to uphold the Act.
Lord Simon of Glaisdale: My Lords, I am very grateful to the noble Viscount for giving way. As he is a lawyer, he will know that that is common form to people seeking an injunction in these circumstances.
Viscount Brentford: My Lords, it may be common form, but what I am stating is that in this case I do not consider that that should carry any weight for the reasons which I have given. The real reason why the Shops Act is currently unenforceable is because of the requirement of local authorities to give a cross-undertaking for lost profits when they seek this injunction to uphold the Act. Recently, the City of Hull council, in the run-up to Christmas, was faced with a demand in the court for a cross-undertaking for £2 million from Tesco. Not surprisingly, the authority could not risk local taxpayers' money and was forced to give way. The loser in this case was the rule of law. Local authorities currently face all the risks and the major retailers none whatever. My Bill seeks to adjust that gross imbalance.
I shall now set before your Lordships what I consider to be the options facing the Government today. First, the Attorney General could, if he wished, provide support to the local authorities to make enforcement feasible under current conditions by bringing injunctions himself, as only he and not the local authorities could possibly have Crown immunity. He has refrained from doing so. A second course of action would be for my right honourable friend the Home Secretary to bring forward a statutory instrument to include offences against the Shops Act within the list of offences for which a confiscation order may be made under the terms of Section 71 and Schedule 4 of the Criminal Justice Act 1988. This has been used for a couple of offences so far and is available for use against other offences where appropriate. No doubt when he replies the Minister will give the Government's reasons why these responses are not being acted on at present.
The third course of action would be to increase the fines that are payable under the Shops Act itself without any recourse to any other Acts. That is what my Bill purports to do. The total lack of action so far does not sit well. We have a Government who are totally committed to law and order, family life, the welfare of small businesses and to the environment but I suggest that all those aspects are suffering by the lack of action and the legal shambles which the country faces today.
I turn now to an example from the Common Market to illustrate what is happening in other countries equally bound by the Treaty of Rome. I am sure many of your Lordships will have read this in the newspapers. On Sundays 22nd and 29th December last the Virgin megastore on the Champs-Elysées in Paris opened illegally. Immediate prosecution followed in the local courts. Fines of approximately £50,000, based on the number of employees illegally engaged on each Sunday, were levied. Despite that

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£100,000 liability, the store planned to defy the law again on Sunday 5th January until the French Government made it plain that if necessary further action to close the store would be taken by the police. Wisely, the Virgin management backed down.
Noble Lords will know that Virgin plc and its owner Mr. Richard Branson are leading supporters of the Shopping Hours Reform Council. I am a great admirer of all that Mr. Branson has achieved, both nationally and internationally, but on that occasion he met his match. Perhaps I may illustrate this disaster for Virgin by a few lines of doggerel, though I must admit that I am not a poet as will become obvious. However, noble Lords may be able to recognise the pattern on which it is based:
"There was a young fellow called Branson,
Who decided to take all the Franks on,
So he opened his shop,
But the judge shouted, stop!
And that was the end of his try-on".
I only wish that the same could be true in this case.
The French case is interesting to me, primarily for three reasons. First, the French Government have already committed themselves to making modest changes to the Sunday laws this year, but they are determined that the changes will be made by the National Assembly and not by Mr. Branson or any other shops. Secondly, the law in France remains the law. The French Government see no need to await pending cases before the European Court of Justice and know full well that the court has ruled three times already on the compatibility of Sunday trading restraint with Article 30 of the Treaty of Rome.
The third reason involves me, and perhaps those noble Lords who are of a similar age to me and are not therefore extremely young, in making the most enormous mental jump. I was always brought up to think that laws were always enforced in England but not in France. In this case we have the law being enforced in France and not in England. I find that a difficult hypothesis to master.
With my next point I should like to answer those who ask why I am bringing forward the Bill today and why we are not leaving until the Shops Act is reformed the increase in penalties to be dealt with at that time. I have two reasons. The first is that we need fines that are sensible and appropriate today ready for when the European judgment comes and holds that the Shops Act is not unenforceable. Everyone from my right honourable and learned friend the Attorney-General upwards and downwards says that the fines are ridiculously low. If I assume that in six months' time that judgment comes through and that the courts will then administer the Shops Act properly, there should be a fine of up to £50,000 available for magistrates to use. If nothing happens today it will still be at best another six months after the European Court judgment or such other time as the courts decide they will operate. There will be a long delay and fines will by then be totally inconsequential. Let us put the law properly in operation today.
The second reason is that the local authority could bring an action after the passing of this law and before any judgment is made by the European Court. Then,
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even if a case were adjourned sine die, as is happening many times now, the available fine when the case was later heard would be £50,000.
I shall make two brief points in conclusion. First, the British Government are a signatory to the 1990 Copenhagen declaration of respect for the rule of law and on co-operation to secure its enforcement. Copenhagen continues the process begun by the Helsinki Accord. My modest Bill enables the Government to act in support of its words.
Secondly, my Bill is a positive response to the invitation given to me and my colleagues by my noble friend Lord Ferrers at col. 1357 of the Official Report on 27th November 1991 to take action to pursue those who break the law. All I am doing is accepting his invitation and taking the necessary action. I trust that your Lordships will approve the Bill. I commend it to the House.
Moved, That the Bill be now read a second time. —(Viscount Brentford.)
2.23 p.m.
The Lord Bishop of Liverpool: My Lords, I support the noble Viscount, Lord Brentford, in bringing forward the Bill. At the end of November the House briefly debated the Government's Statement which followed the announcement by Tesco that it was going to break the law. In his reply to me then the noble Earl the Minister said:
"None of us in the Government condones the plans by some retailers to open on Sundays before Christmas. I commend those who remain committed to complying with the law … Those in positions of great authority—and big business commands great authority—who break the law give a very bad example to others. It is to the upholding of the law that we should all he committed".—[Official Report, 27/11/91; col. 1353.]
How are we to uphold the law and how are we to give proper support and protection to those retailers who remain committed to complying with the law?
In Liverpool, the three presidents of the Merseyside Churches Assembly, Archbishop Worlock, Dr. Newton and myself, wrote to the chairmen and managing directors of the stores in Liverpool which had announced at the beginning of December their intention of opening on the Sundays before Christmas. We said that it was very unjust to those companies which keep the law for some to steal a march on them by breaking it. We also said that the decision to open would put an intolerable strain on the conscience of a number of their staff who felt obliged to comply with their company's requirements. We mentioned the telephone poll conducted by the Liverpool Echo during the previous week in which 78 per cent. of callers expressed their opposition to Sunday trading in the Liverpool area.
Perhaps I may quote from the reply that I received from the group chief executive of one of the companies to which we wrote and which had announced that it would open. He wrote:
"The company's support for "Keep Sunday Special" has been our policy before and since deregulation of Sunday trading was defeated in Parliament and we too are opposed to unrestricted opening of shops on Sundays. However, we were placed in an unjust position last year when many stores opened on Sundays and we did not. This year with an even

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greater number of stores opening, the threat to our business and the resulting job security of our staff has become a great concern to us".
Another company chairman rang me and said precisely the same thing: companies were opening against their convictions, purely so that they should not lose ground to competitors who were breaking the law. That letter provides a perfect example of why we need laws: it shows exactly why laws must be enforced and it shows exactly why penalties should be heavy enough to deter powerful lawbreakers. I believe that the Bill of the noble Viscount, Lord Brentford, can help to re-establish the law in this matter.
The government Minister, Mrs. Rumbold, has spoken on occasions as though her only responsibility in finding a way forward was to bang heads together until all parties agreed about a policy. In your Lordships' House the Minister, the noble Earl, Lord Ferrers, said that there was a spectrum of views and that he knew that the noble Lord, Lord Boyd-Carpenter, was at one end of it while I was at the other. We have debated matters in the House on which I would accept that position, but I cannot do so on this matter. The noble Lord, Lord Beaumont, quite rightly intervened at that time to make it clear that the spectrum on the matter is totally free trading at one end and, at the other, the complete Sabbatarian position. That is not where I am; I am not a complete Sabbatarian, or anything like it. The Churches very largely support moderate reform based, for example, on the "open" or the "rest" proposals which I believe are workable.
The Government have a major share in the responsibility for the present state of the law, for it was they who brought in a Bill for total deregulation. It was defeated in another place five years ago. That underlines the responsibility that the Government have to bring in a Bill which can win wide support. Such a Bill must offer protection to shop workers against the very wide requirements to work on Sundays. It is very strange that appeal is being made to Europe in aid of total deregulation when it is clear that there is a wide consensus in the European Community that to restrain Sunday trading is in the interests of good family life.
The report of Durham University Business School on women and work shows the vulnerability that women feel in the employment market. It found a strong association between a woman's willingness to work unsocial hours and whether or not she had children. Of women with children, only 15 per cent. said that they would be willing to work regularly on Sundays. The Government want such women to be able to return to the labour market. Are they not concerned to protect their freedom to keep Sunday as a family day?
In the Durham survey, 56 per cent. of those interviewed said that Sunday was the main time that women employed in retailing had to spend with their families. Some large retailers are now said to be drawing up fresh contracts which will require staff to work on Sundays. Despite assurances that there is no
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requirement by other firms, I hear of existing shop workers being brought under strong pressure to work on Sundays.
Do the Government themselves not have a view on the character of Sunday? I heard a Minister, Virginia Bottomley, on the "Any Questions" programme speaking on this subject. She said that she thought that most people wanted to find a middle way. I believe that she was right. I believe that many members of the Government would think that she was right. Why then is the only initiative that we have had from the Government a Bill for deregulation, which Parliament defeated?
A Bill which took a middle path would, I believe, now obtain agreement from those who believe that there should be some special character for Sunday. Until a new law is in place, existing law should be upheld, for this present flouting of the law brings all law in Britain into disrepute. The Bill could help to re-establish the law until a better one wins assent.
2.30 p.m.
Lord Elton: My Lords, there may be differences as to whether Sunday should be a day of rest, but I think that we are all agreed that Friday should be a day of short speeches. If I merely say that I share the views of my noble friend Lord Brentford and of the right reverend Prelate the Bishop of Liverpool as to the need to mark Sunday out as a special and different day of the week, your Lordships can take it as read that I hold them with great enthusiasm. They have put forward a case that demands a coherent answer from my noble friend the Minister. I hope that it will also be an encouraging one. I shall just add that I believe that we were once a God fearing nation in a sense that we are now not. I do not believe that this or any other piece of legislation will change us back to what we once were and now should be, but we need urgently to consider what we can do to make it possible for that change to take place. I also believe that doing that will create and maintain a space in which the life of the family can recover its strength.
One thing we can do to achieve that purpose is to preserve a time each week when it can be, not just possible, but normal to attend places of worship and consider our lives from the spiritual rather than the material standpoint and to do so in the company of our families. That entails regulating commercial activity on one day a week; and that day is Sunday.
It is not necessary at this juncture to consider what the detail of that regulation should be. It is a necessary question and it is becoming increasingly urgent; but the Government have made it clear that they will not act until the European Court has declared whether the Shops Act 1950 is ultra vires, and no legislation can therefore be prepared until after that judgment is given.
The Bill is designed to meet a particular contingency that we think is likely to arise. It is that the European judgment, when it comes, will be that the Shops Act is not ultra vires and has force. That Act will then once again be the law of the land in reality as well as in name. We do not pretend that it is perfect. It is far from it. One can have great fun—many people

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have had great fun on numerous occasions—in pointing out the inconsistencies in its provision; but it provides some sort of a regulatory framework and, like half a loaf, it is much better than none. That has been put beyond question for those of us who believe that Sunday should be a special day, available for the spiritual life and the family life of most of our people, by the effect of the reference to Europe and the consequent decision by the Court of Appeal in Kirklees Borough Council v. Wickes Building Supplies Ltd in May last year which has been referred to.
That ruling, although it has been appealed, means that no local authority can enforce the Shops Act by means of injunction because, even if an injunction were granted, the local authority would have to give a cross-undertaking in damages which is, in effect, an undertaking to pay at least the total of the profits forgone by the trader against whom it has moved. These are considerable and it would eventually fall to the ratepayers to pay them.
My noble friend Lord Brentford has confessed to not being a poet. I confess to not being a lawyer, though whether with as much justification your Lordships will decide later. Unlike some of my friends, I see no injustice in the Kirklees decision. The courts are there to interpret the law, not to take political decisions. Your Lordships' own House has declared that it does not know what the law is in the matter and cannot know in advance of the European judgment. The lower courts cannot therefore continue to behave as though they did know what the law was, nor can local authorities.
Some of my friends tell me that the enforcement of public law by local authorities attracts Crown immunity; that that immunity extends to cross undertakings and that the Court of Appeal has broken new ground in saying that that immunity appertains to the Crown alone.
It is further argued that the Kirklees judgment implies that the immunity of the Crown, and therefore its Ministers, is unimpaired and that the Attorney-General remains free to seek injunctions without subjecting himself, and therefore the taxpayer, to the enormous contingent costs of cross-undertakings on a national scale. I think that my noble friend was speaking on that assumption. On 27th November, my right honourable and learned friend the Attorney-General said that the Government would be subject to this disability. But much as I should like to see immediate enforceability of the 1950 Act, the difference of opinion seems to me to be of academic interest only.
It would surely not be right for my right honourable and learned friend, even if he were burning with zeal to keep Sunday a holy day, to say in effect, "Even though I don't know what the law is, I am going to make all shopkeepers behave as if it is still what we thought it was—and I bet that the European Court agrees with me in the end".
The injunction and criminal prosecution route is, therefore, to all intents and purposes closed off. It is also very unlikely that any court would award a fine in
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a prosecution under the Act until its status had been made clear. We are now, therefore, I much regret, apparently entirely without regulation.
When your Lordships last attempted to change the law on Sunday trading in 1986, the other place, by a massive vote and many speeches, made it clear that it did not want any significant relaxation of trading law. It simply wanted it made logical and clear. That is an achievable aim, but it will be achieved only by way of something approaching consensus and that is something that successive Ministers have tried and failed to achieve for a long time. It will certainly take time, therefore, and it is important to have an enforceable system in the interim.
That system must of necessity be the Shops Act which we already have. To tinker with its provisions as to the categories of goods and service available for sale would lead to the waste of a great deal of parliamentary time, and we do not propose that.
What we propose is to prepare for one possible outcome of the reference to the European Court—in our view the most likely one—which is a declaration that the current Act is intra vires. If that happens, there will be an interval, possibly a long one, between the declaration and the bringing into effect of new legislation. In that case it is important that the Act, imperfect as it is, is easily enforceable. That means introducing penalties that are not derisory, as at present, but effective as proposed in the Bill.
The present maximum fine, as my noble friend has already explained, is utterly inadequate. The rewards for retailing on Sundays are at present considerable. I mention in passing that for grocers they would be less so if local authorities object—as an accountant friend of mine has pertinently suggested—to the renewal of their liquor licences on the grounds of misconduct and if the licensing magistrates agreed to their objection. It will be interesting to see whether they do that.
In the meantime, however, the weekly average takings in a 40,000 square foot superstore are, I am advised, about £400,000. The gross margin on that turnover is, I understand, likely to be about 12 per cent., giving a gross profit of £48,000. A maximum penalty of £50,000 would mean that a decision to open on the seventh day of the week incurred the risk of forfeiting the profits of the other six. That seems to me a practical way of ensuring that retailers conformed to the most recent declaration by Parliament on how they should conduct themselves on Sunday. That is why I support the Bill.
The need for it has become apparent because of the mess which we have suddenly got ourselves into. This has made us look closely at the operation of the law and leaves me, for one, with a very pertinent question in mind. The cross-undertakings we are talking about are devised to prevent a trader being deprived of profits if it later proves they would have been lawful. However, that is a constraint on only one party in the dispute and it rests on only one contingent result of the reference to the European Court. As a layman, I find that extraordinary. Is not the law supposed to be evenhanded between all parties, whether they be

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individuals, corporate bodies or government? We have prided ourselves on that since Magna Charta. If there has to be a bias, surely it is to the status quo.
Certainly it is fair to say to the local authority, "You must pay the trader what you have made him lose if the law is not what you think it is". I can see the justice in that. But why does the law not also say to the trader that he must forfeit his profits if the law is not what he thinks it is? That would seem to me to be both evenhanded and to tend to retention of the status quo. Will my noble friend the Minister tell me whether, and if so by what means, that can be achieved under the arrangements we have at present? If it cannot be achieved, will he tell us what legislation would be needed to make it possible? I fear I have not given him notice of this question and I apologise for that. If, therefore, my noble friend answers by letter, will he please place a copy of it in the Library of your Lordships' House?
There are many fascinating topics beckoning me, but it is a Friday. If, as I very much hope, our noble friend Lord Cheshire is safe and well, he will be speaking in a debate he has tabled for later this month. Your Lordships may have seen on the tape that he was rescued earlier today from the roof of his burning house. I am sure your Lordships will extend their. sympathy and encouragement to him with mine. I shall put forward my views with enthusiasm in that debate later this month. I commend to your Lordships my noble friend's proposed legislation with all the enthusiasm at my command. My grounds are fractionally different from his, but my enthusiasm is there none the less.
2.42 p.m.
Baroness O'Cathain: My Lords, at the outset I must declare my interests. I am a director of Tesco and have been since 1985. I am also a committed Christian. I therefore find that Sunday trading is one of the most difficult issues for me. In fact it would be much easier not to speak in the debate, but I am taking the opportunity afforded by this Bill to put some facts before noble Lords concerning the very difficult position of Sunday trading.
This issue has been building up for a long time; indeed it can be traced back to the 1950 Shops Act. The 1985 Bill—the Shops Bill—resulted from the Auld Inquiry Report which was presented to Parliament in November 1984. It in effect led to the principles of deregulation being approved in another place.
The 1950 Shops Act allowed certain shops, particularly confectionery, newsagents and tobacconists—they are known as CTNs in the trade—to trade on Sundays. But gradually, particularly during the 1980s, many of these shops extended their range of goods on offer and the hours which they worked. They expended the retail space to become, in effect, mini-supermarkets. High disposable incomes in the 1986 to 1990 period resulted in changes in lifestyle which opened up the market for convenience stores and these erstwhile CTNs became full blown grocery stores.
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These stores traded on various slogans to the effect that they were open every day of the year, including Christmas day. They traded on slogans such as, "Late till eight" and "Seven till eleven". Sunday trading became the norm as these CTNs, which were now small grocery shops, were followed rapidly by DIY and furniture retailing and petrol station forecourts became mini-markets selling everything from bread and butter to flowers and fizzy drinks. By the autumn of 1990 it is estimated that some 100,000 units were trading on Sundays. Indeed if the housewife in my local area of Angmering completely overlooked the fact that people had been invited to Sunday lunch, she could nip down to the local garden centre and purchase a leg of lamb, potatoes, other vegetables, mint sauce and icecream. That is a long way from rose bushes and daffodil bulbs.
The size in terms of square footage of these kind of operations is also considerable. Yet these garden centres would be permitted to operate unchanged under the REST proposals. Because of the inexorable increase in the number of units trading on a Sunday, most of which were making substantial profits, the Association of District Councils announced in autumn 1991 that the present law was unenforceable and flawed. Like other major supermarket chains, Tesco felt unable to allow the situation to continue whereby its commercial progress and that of its 90,000 staff and 110,000 shareholders was being eroded—not to mention the inconvenience to its 10 million customers.
Objections to Sunday trading are well known and are constantly repeated. They are all objections which I understand and concur with, but there cannot be, in effect, one interpretation of the law for one set of traders and another for another set.
If there were no Sunday trading many of those currently trading would not want it. Many would not press for it, but as there is Sunday trading they feel they have no alternative but to safeguard their position by joining their competitors. Competition is what it is all about, not flouting the law for profit, as the noble Viscount, Lord Brentford, stated, nor having total disregard for the sanctity of Sunday.
Many millions of people already work on Sundays, ranging from bishops to farmers, journalists and printers of the Monday newspapers to policemen, supermarket store shelf fillers and distribution staff (to ensure that Monday's trading can go ahead) to newsagents; and in my own major area of activity, violinists to barmen. If we think about it long enough and deep enough we will realise that all of us to a greater or lesser extent rely on somebody else working on a Sunday—indeed some of us already work on a Sunday. Sunday is one of the busiest days of the week in the Barbican Centre.
Despite all this trading, Sunday is different. Sunday is special. Sunday is the day when families can, if they wish, go out together as a unit, go to a concert, visit a stately home and take tea in the tea rooms there and buy goodies in the shop (very often grocery products). Sunday is a day when there must be freedom to worship for those who want to worship, freedom to partake of chosen leisure activities for those who wish

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to do so and, although I prefer not to shop on a Sunday, freedom for those who want to shop on a Sunday, for example, Jewish believers who regard Sunday as a normal day, having had their special day on the Sabbath, namely Saturday.
The Government must try to clear up the current mess—deregulate or introduce universally enforceable regulations where there would be no Sunday shopping. Because of the changed nature of the businesses currently allowed to trade, the existing regulations, if enforced, would result in major distortion of competition.
One point is most important, namely, that the strongest possible efforts should be made to ensure that those who do not wish to work need not work, that no coercion is implied and that people's promotion prospects are not jeopardised if they categorically state that they are not available to work on Sundays.
I believe that the current situation is untenable and that something should be done—and done quickly. Although I welcome the fact that the Bill gives the opportunity to open up the whole unsatisfactory situation I cannot support this particular Bill because I believe that it is not possible to deal with one issue, namely the question of fines, while ignoring the very real problems which the current situation creates.
2.47 p.m.
Viscount Caldecote: My Lords, I apologise to my noble friend Lord Brentford and the House for not being present when my noble friend opened the debate. I experienced a little local travel difficulty.
Although I fully agree with the views put forward by the right reverend Prelate the Bishop of Liverpool and my noble friend Lord Elton about Sunday trading, this is not a debate about the merits or demerits of Sunday trading, which is a contentious issue. It relates entirely to the problem of upholding the rule of law, which is the basis of our democracy, and to enforcing the laws which Parliament has enacted. Whether those are now good laws or whether they need improvement is irrelevant. Neither the upholding of the rule of law nor the enforcement of laws which Parliament has enacted is a contentious issue. They are straightforward and important matters.
There are two main factors which affect the ability to enforce the law: first, the resources available to detect offenders and to bring them to court; and, secondly, the penalty inflicted on those found guilty, which acts as a deterrent to others not to break the law. The fact is that there are many infringements of the laws relating to Sunday trading—we cannot get away from that—as those laws have been enacted by Parliament, whether they are as good as they seemed to be in the first place or whether they need amending or not, as I believe they do.
There is no difficulty in detecting and identifying the law breakers, nor in bringing them to court, even though there is an unfortunate reluctance by the authorities to prosecute. But that also is a subject for another day's debate. I am not so courageous as my noble friend Lord Elton in going into the legal whys
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and wherefors of that position. Suffice it to say today that those obstacles to prosecution could easily be removed, as my noble friend Lord Brentford indicated.
The only major factor preventing the proper enforcement of the law—when it is clarified, if it needs to be clarified —is the ridiculously small penalties in relation to the rewards for law breaking and the financial resources of the law breakers. This Bill seeks to deal with that issue by increasing the penalties for those found guilty of breaking the existing law. It is a simple and effective measure. I hope that when he replies my noble friend the Minister will not use the doctrine of "unripe time" to oppose the Bill. I am confident that all those who support the importance of upholding the rule of law in this country will support this Bill. That must surely include every Member of your Lordships' House. I strongly support this Bill.
2.52 p.m.
Lord Lucas of Chilworth: My Lords, my noble friend Lord Caldecote invited me to join him and other Members in upholding and supporting this Bill. He will not be at all surprised when I tell him that I cannot do so, that I shall not do so, and in fact that I shall positively vote against this Bill having a Second Reading. If I were a generous man I would describe the Bill as mischievous. Of course I am not a generous man and I describe this Bill as aggravating and politically pointed in a direction that I find totally objectionable.
My noble friend in his opening remarks picked out and named Sainsbury, Asda and Tesco as law breakers. He did not add the Co-operative wholesale movement and its retail outlets— supporters of KSS —nor Iceland. They were also law breaking within the terms in which the noble Viscount opened the debate. That is mean, and also mischievous. As my noble friend Lord Caldecote said, we are in danger of having a Sunday trading debate, and that is not what this Bill is about.
The right reverend Prelate said that he supported the Bill because this realistic penalty would re-establish the rule of law. He will forgive me if I say, "Sir, no". Adding a penalty to a penalty does not establish a rule of law. It may well frighten those people who may possibly be subjected to a £50,000 fine instead of an £X or a £Y fine, but it does not re-establish the rule of law. It only fixes a penalty.
I am pretty sure that it was my noble friend Lord Elton who discussed turnover. He suggested that there was a 12 per cent. gross margin on the wholesale take of a 40,000 square foot foodstore or supermarket (whatever it may be called). My information is that the gross margin is considerably less.
Lord Elton: My Lords, perhaps I may interrupt my noble friend to ask whether he agrees that the enforcement of the law is a very important factor in maintaining and upholding the rule of law.
Lord Lucas of Chilworth: I can only repeat what I said earlier, that adding a punitive penalty does not necessarily uphold a law. It may underline an aspect of the law. But the law will not be upheld by increasing

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by 50 times the current penalty for a law which, as has been demonstrated, is unenforceable. Over the past five years the matter has been before Parliament on a number of occasions and it is now to be the subject of a European Court decision.
This is a mean, miserable little Bill which does not deal with the main problem. That main problem is not before the House this afternoon. My noble friend drew in the Branson French operation, which merely confuses the issue. One could bring into the debate the ALDI stores in Germany, other stores in Holland and so on. That argument does nothing to support a law which is already in disrepute and does not justify increasing the current penalty 50 times.
I am surprised that my noble friend Lord Brentford should have resorted to such a mean little tactic. This matter could equally have been dealt with in terms of an Unstarred Question, if he had wished to bring to the attention of Parliament the paucity of the fine for offenders against a law which cannot be enforced anyway.
2.57 p.m.
Lord Monson: My Lords, I, too, submit that the Bill is both unnecessary and undesirable. I have no financial axe to grind either way, but a lot of nonsense has been talked about the actions of the big stores in question by people who ought to know better. For example, Hugo Young, writing in the Guardian of December 17th last, described the stores as "bully boys". It is as though couples, innocently strolling down Oxford Street on Sunday afternoon for a breath of fresh country air, are now at risk of being surrounded by thugs, rather like latter day press gangs, and forcibly bundled into department stores, there to be relieved of large sums of money in return for wholly unwanted goods. What a preposterous fantasy!
Shops which open on Sunday are also accused of wanting to make money, as though the landlords of pubs and the owners of restaurants, cinemas, stately homes, theme parks, zoos and similar places of entertainment are motivated purely by altruism, money being the very last thing to cross their minds. Strange as it may seem to some noble Lords, for many people shopping is a pleasurable form of activity. For them it falls into the same category as visiting the cinema. Why on earth should they be deprived of innocent, harmless pleasures?
To the extent that people tire of a novelty, as may happen in this case before too long, many shops will cease to open on Sundays. After all, that is what happened in Scotland, where only a small minority of shops open regularly, as those who have taken the trouble to study the matter will freely acknowledge.
Is opening a shop on Sunday a crime? We shall have to await the findings of the European Court. However, if it turns out to be a crime it is surely one of the most technical, victimless crimes imaginable. It is more victimless than parking on a yellow line, driving at 31 mph in a built-up area or driving at 71 mph on a motorway. I should be prepared to bet that at a minimum 90 per cent. of the supporters of the Keep Sunday Special Campaign at some point in their
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lives have either parked on a yellow line, driven at more than 30 mph in built-up areas, driven at more than 70 mph on a motorway, or all three.
If it is not a crime, is it a sin? The "Wee Frees" in Scotland would say so. However, unlike the mainstream Churches, they are at least honest and consistent in banning not only shopping but also entertainment and travel on Sundays.
One hesitates to cross swords with the Bishops' Bench, but my understanding is that there is nothing in the New Testament which can be interpreted as being inimical to Sunday trading specifically. That is presumably why the Churches—I exempt from these strictures the right reverend Prelate who spoke today —have tended to fall back on quasi pagan arguments relating to natural rhythms, natural cycles and so on. There is nothing necessarily wrong with pagan arguments. They may from time to time be perfectly valid. It is simply curious that such arguments should be used by the Churches.
Let me freely concede that I too would be somewhat depressed if Sunday turned out to be just like any ordinary weekday. However, I differ from the Keep Sunday Special campaign on two points. First, I do not believe that the criminal law should be used for social engineering purposes. The artificial preservation of a semi-Victorian Sunday is surely a form of social engineering. More importantly, I do not believe that there is the slightest risk of Sunday becoming just like any weekday. The experience of Scotland and other countries where Sunday trading is permitted demonstrates that quite forcefully.
Despite the telephone poll referred to by the right reverend Prelate, our opponents are a minority of the population, as several more scientific opinion polls have demonstrated. One wonders whether those opponents would acknowledge that at the very least the whole of England and Wales ought to be declared a holiday resort in which shops would be allowed to open for, say, 18 Sundays a year. The Sundays in question would tend to fall in December, early January, June and July so that students—who, after all, are in dire need of the money—would be able to work in the stores on Sundays during those months, thereby relieving some of the pressure upon the married women to whom the right reverend Prelate referred. Such a change would be only acknowledging reality. It is silly to claim nowadays that people take their holidays only at the seaside.
However, as a libertarian I should prefer the criminal law to be kept out of the issue altogether. Some local authorities claim that large-scale opening of shops on Sundays would involve them in extra expenses in connection with traffic control, refuse collection, street cleaning and so on. If that is the case, let them be empowered to levy a surcharge of up to 10 per cent. on the uniform business rate: I refer only to large stores which open regularly on Sundays, not corner shops. All the proceeds would be retained by the local authority. That would more than cover the costs of the extra services that they would have to provide on Sundays. At the same time it would ensure that Sundays remained even quieter than they are in Scotland today.
3.5 p.m.
Lord Newall: My Lords, I first ask for the indulgence of the House. I was given to understand that the debate would finish much earlier, as is usual on a Friday. I have an important appointment with the electricity authorities which I must maintain and therefore I may not be able to remain until the end of the debate.
The noble Viscount, Lord Brentford, has introduced a Bill to increase penalties for offences against Part IV of the Shops Act 1950. None of us in this House is in any doubt of the implacable opposition which the noble Viscount has put up for many years against any deregulation of Sunday trading legislation. We all admire him for his perseverance. I believe that he is set on a course which is against the march of time as history may well show. However, we are in total agreement about the appalling situation in which, with the flouting of the law that is taking place, we find ourselves today.
Everything that we have read and heard over recent weeks has demonstrated the amount of aggravation and irritation felt by many sectors of business, industry and sport about the present Sunday trading legislation. In the weeks before Christmas we saw how many of the major retailers decided to open their doors to their customers on Sundays and the resulting consumer demand for these opportunities. This week has seen an announcement by the Jockey Club that it intends to stage some racing on a Sunday later this year as an experiment without, I should add, in any way breaking the law. Who knows?—that may well spread into greyhound racing. However, we have concluded the debate on dogs so I shall not pursue that subject.
I am sure that your Lordships are all aware of the complicated situation we now face while we await the judgment of the European Court and in the light of the Home Office's reluctance to move until that judgment has been laid down. It is all very well for the Attorney-General to say that there is nothing he can do until the legislation has been interpreted and that it is up to local authorities to decide whether or not to enforce the 1950 Shops Act. In the meantime a great many businesses do not know how to react. They risk penalties if they open or further deterioration of their trading position if they remain closed. All this at a time of recession when many businesses, particularly small businesses, should be given the greatest encouragement by government to stimulate what we are told is much-needed consumer demand.
Last year I introduced the Sunday Entertainments (Video Supply) Bill in order to enable video rental outlets to remain open on a Sunday. That Bill passed your Lordships' House and it was taken up under the Ten-Minute Rule in another place, where again it received widespread support. However, it was finally given the coup de grâce by government hands. I make no apology today for introducing the subject once again because the problem has not gone away, in fact just the reverse: it has become even more critical during these past few months.
In contrast to major retailing groups, video rental stores, which are often run by a single shopkeeper, do
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not have the resources to finance sophisticated legal proceedings. Indeed, the fine they currently face under a law enacted before the technology was invented is already punitive in the extreme and in certain areas renders opening impossible in spite of a strong demand. There does not appear to be any reason why other forms of the visual entertainment industry cannot operate on a Sunday. Theatres and cinemas may open on Sundays, and we are free to watch films on television on a Sunday, but in many areas this anachronistic legislation prevents us from renting a video.
Sunday is of course just the time when a great many people, including children, have time to watch a video and the weekend trade represents a very significant part of the video rental business. Every month that is lost whilst waiting for the wrangle to he resolved is another month of reduced or uncertain business.
The Government say that they cannot amend the Shops Act piecemeal, that any reform will have to await the outcome of the negotiations which are presently under way and that a consensus must emerge among all parties on the type of deregulation that will meet with widespread approval. They have constantly stated this position but I do not believe that their position is any longer tenable. If no moves are forthcoming here pending the European Court's decision, there is no other course but to amend the original legislation piecemeal. I believe that there is a great deal of support for just such a course of action. For that reason I intend to put down amendments at the Committee stage of this Bill and to try to put in place the reforms that my previous Bill would have enacted. I gather that the Keep Sunday Special campaign and those who support it do not see any problem as regards video rental on a Sunday. Therefore, once again, I am confident that my attempts will receive a great deal of support.
There is much familiarity with the problem and the imminence of a general election and the paralysis of the Home Office should not deter us from continuing our efforts to reform Sunday trading legislation. In conclusion, I must tell my noble friend Lord Brentford that I do not support the Bill. I believe that to increase penalties on shops which open on a Sunday is not the right way to proceed and I may well table amendments at a later stage.
3.10 p.m.
Lord Ashbourne: My Lords, I rise to support my noble friend Lord Brentford and to thank him for introducing the Bill which seeks to increase the penalties for offences under Part IV of the Shops Act.
Noble Lords hold varying views on the issue of Sunday trading and I do not propose to go into those in any depth today because it seems to me that the real issue is, as my noble friend Lord Caldecote so cogently argued, the role of the state in upholding law and order. To put the matter in another way, has the state a responsibility to uphold the law of the land, which has been so painstakingly considered by noble Lords and Members of another place, when the legislation has evolved in Parliament, or is it in order for the Government to shrug their metaphorical shoulders

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and watch powerful retailing groups deliberately break the law by trading on a Sunday for motives of greed, profit and commercial gain at the expense of law-abiding competitors?
Noble Lords will judge for themselves on that issue. However, I must say to the Minister who is to reply on behalf of the Government that I consider the failure of Her Majesty's Government to act on that issue to be extremely disappointing. In my judgment it will have caused the Government to lose credibility with electors. That may not prove to be wise in the run up to a general election.
What should the Government do? There are two possible courses of action which I should like to mention. My noble friend Lord Brentford briefly touched upon both in his opening speech. First, the Attorney-General could take out national injunctions against the offending groups of stores. Contrary to his assertions that many injunctions will be needed, some legal advisers advise that only one injunction is needed per company. Perhaps the Minister will be prepared to look again at that.
Secondly, as I understand it, the magistrates' courts are currently empowered to act against offences specified under Section 4 of the Criminal Justice Act 1988. That does not include offences under Section 47 of the Shops Act. Surely all that is needed is for the Home Secretary to bring forward the appropriate statutory instruments. Are the Government willing to take that simple step and, if not, why not? Again, I should be grateful if the noble Earl will answer that question when he replies to the debate.
Finally, if the Government really mean business they could make it known that law-breaking companies will be denied public recognition such as Queen's awards, development grants and local authority assistance. Indeed, directors of law-breaking companies should be denied public honours, positions of influence and invitations to public functions. Those already honoured should be informed that they are placing their honours in jeopardy.
Research on Sunday shopping on one Sunday before Christmas showed that one family in 20 did grocery shopping on that particular Sunday. That means that 19 out of 20 households did not. Perhaps noble Lords would care to reflect whether they feel it is right for the Government to stand idly by and allow a relatively small but powerful group of retailers to dictate a fundamental change in our way of life for the benefit of themselves and perhaps 5 per cent. of the population.
For all those reasons, I strongly support the initiative taken by my noble friend Lord Brentford and I have no hesitation in urging your Lordships to give the Bill a Second Reading.
3.15 p.m.
Lord Harris of High Cross: My Lords, I have not had the pleasure of following the noble Lord, Lord Ashbourne, before. However, if I may speak plainly, I find the accusation of greed as the motive for people opening their shops and offering their wares to willing customers simply ludicrous. It is equivalent to saying
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that all people who pursue their own businesses are simply concerned with greed. In a manner of speaking they are concerned with improving their own position by way of peaceful trade; but how absurd to import into a serious debate that kind of accusation.
I am glad to rise from the Cross-Benches, accompanied by others who equally strongly oppose this rather miserable Bill. My noble friend Lady O'Cathain is the only one among us who has experience as an entrepreneur with Tesco's and also at the Barbican Centre, which is an important retail outlet and, as she said, does most of its business on a Sunday. To have her on our side is powerful support.
In view of the passion generated by the noble Viscount, Lord Brentford, he may stand amazed at his own moderation in raising the penalty for opening on Sunday from £1,000 to only £50,000. I assume the noble Viscount is an abolitionist or else he may have thought the death penalty was more appropriate for such wickedness as offering one's business products and services to willing customers on a Sunday.
A large part of the case for the repeal of the Shops Act is based upon absurdities and anomalies. We know that we cannot buy baby's milk but can buy gin. Even the experts among us may not remember from our last debate that there was something in the schedules in regard to partly-cooked tripe. I do not know which way it goes, but one either can or cannot sell and purchase raw or partly-cooked tripe. It is certainly a serious cost for a lapse of memory that we may be faced with a £50,000 fine for selling the wrong kind of tripe on a Sunday.
Lord Elton: My Lords, perhaps the noble Lord will permit me to ask a question. It is possible for offences under an Act of Parliament to be either serious or not. Acts of Parliament provide a maximum penalty for the most serious offences. I would not consider a bowl of tripe to be a serious offence.
Lord Harris of High Cross: My Lords, I hope that the tripe eaters will take comfort from that observation. It is impossible to judge the expediency of the Bill, alas, without rehearsing the whole of the case against the control of opening hours and days for retail establishments. We have been through it all before. There are great arguments of principle. There are questions about the practical effects of the law and in the end, I am afraid, there are decisive political considerations.
It cannot be disputed that on grounds of principle we are faced with a dilemma. It is perfectly clear that opening on Sunday at present involves breaking the law. I do not take that lightly. However, as the noble Lord, Lord Lucas, said, the piling up of penalties to impose reluctant, grudging, unwilling acquiescence to a widely despised law is hardly the way to restore the law in the affections and faith of the population. I regret that the noble Lord, Lord Caldecote, appeared to be retreating to his bunker and contemplating using rubber bullets of ever larger-calibre in order to fight off the barbarian hordes who will not be contained by ordinary discouragements.
Guilt in this matter must be properly understood. If a particular law is widely judged to be absurd then

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may we not say that the law has brought itself into disrepute? The guilt might then be borne by its most stubborn defenders among whom the last surviving relics are apparently to be found on the Tory Benches, and also perhaps on the Opposition Benches, in your Lordships' House.
In 1914 the great Austrian economist BöhmBawerk, whose name I cannot exactly pronounce, wrote a classic work entitled Power or Economic Law. It was a warning that legislation could not indefinitely prevail against market forces. That is a lesson vividly and seriously illustrated in the collapse of centralised state power in Eastern Europe and in the former Soviet Union. All the coercion of the police state—not £50,000 fines but life and death threats and all other penalties—were insufficient to subdue the instinct of ordinary people to exert their choices through buying and selling, first of all in black markets and then increasingly in newly-liberated open markets.
I now turn to the practical effects of the continuance of the Shops Act. We find the Canutes on Sunday trading oscillate between the high moral arguments and economic arguments about raising costs and prices. As a professional economist I have studied all the evidence on that. I believe that the fears expressed about the effect on prices and costs are widely mistaken and often perverse. Such commercial judgments are best left to free trading between competing suppliers and choosing customers. Someone has to say that people are not obliged to shop or to open their shops if this law were set aside.
The great case against regulation is that it obstructs shops responding to ever-changing conditions and opportunities, as the development of the DIY stores and the garden centres has vividly demonstrated. The trades unions and the retail opponents of repeal are much the same kind of reactionaries who fought the abolition of uniform resale price maintenance as, roughly speaking, the end of the world as we had known it, in 1964. Yet no one today would bring back resale price maintenance, the removal of which has brought about a cost-reducing revolution in modern retailing that would otherwise not have been possible.
In the end, alas, we come to political considerations. I wish to call attention to recent revelations under the 30-year rule. In 1961 a Tory Cabinet seriously considered the reform or repeal of the Shops Act which had been passed only a decade before. We read that the Cabinet minutes acknowledge that the laws were "antiquated and confused". That was 30 years ago in 1961! We read that Rab Butler, who was no revolutionary or anti-sabbatarian roughneck, prepared, as Home Secretary, a Cabinet memorandum offering alternatives from slight liberalisation, allowing shops in holiday resorts to stay open in the summer, to ending all restrictions.
"It seems pretty clear that in present-day conditions the restrictions are not needed"—I am quoting from the Cabinet records. Of course, the provision was defeated by that arch-politician, Macmillan, who decided that it was not politically expedient. He was right, judged in party terms. In 1982 the noble Baroness, Lady Trumpington, marched us voluntarily and cheerfully through the Lobbies, with no Whips,
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and with a massive majority, including, as I recall, the then Lord Chancellor the noble and learned Lord, Lord Hailsham, and other heavyweights on the Tory Front Bench who were in favour of this Private Member's repeal measure. That measure went through this House and arrived at what is aptly called the Lower House where it was voted out. It was voted out purely on the basis of political pressure of constituents. It is not for the last time that the Lords—
Lord Harris of Greenwich: My Lords, may I ask the noble Lord a question? Does he regard it as particularly reprehensible that the elected House takes some account of public opinion?
Lord Harris of High Cross: My Lords, Members of Parliament have every right to "have regard", I think is the phrase, to their constituents' views. But when it is known that Keep Sunday Special conducted the most determined campaign to influence MPs by letter-writing that wholly distorted public opinion, then we must assume that MPs should look beyond their mailbags and see that the evidence of all opinion polls—I have not seen them lately—of those days in those debates showed 65 per cent. or 70 per cent. of the population in favour of Sunday opening. I pay tribute, as something of an amateur persuader myself, to the outstanding campaign of Keep Sunday Special. It has been, in my lifetime, one of the most effective examples of the perversion of democracy by a determined minority filling MPs mailbags with letters threatening electoral reprisals if they voted in favour of those things that the great majority of the population wished.
Of course it is bad for the law to be brought into contempt. It is also bad for the law to seek to impose prohibition against conduct which the overwhelming majority of the population does not consider wrong. If we think people are wrong in this matter we should rely—particularly the right reverend Prelates on the Bishops' Bench—on teaching and preaching and not try to use coercion and escalating punishment.
We live in a period of unprecedented and continuing change in economic and social developments. If the Tory Cabinet in 1961 considered the Shops Act 1950 to be antiquated and confused then, we might think 30 years later that it is even less defensible. As my unpronounceable Austrian, BöhmBawerk, predicted, political power will in the end accommodate "market forces", which is only a way of describing ordinary people peacefully going about the everyday business of life. So long as the law continues to frustrate mutually beneficial trade between willing buyers and willing sellers it will perpetuate tensions and evasion, and in the end the misuse of statutory prohibition will be swept away by economic and social change.
3.28 p.m.
Viscount Montgomery of Alamein: My Lords, it is always a great pleasure to follow the noble Lord, Lord Harris of High Cross, and I must say that I agree with almost everything he said. That is often the case. I also admire most profoundly the sincerity and persistence

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of my noble friend Lord Brentford who has pursued this issue with great vigour over many years. However, unfortunately on this occasion I profoundly disagree with him, as indeed he well knows because we have discussed the issue both inside and outside the Chamber on many occasions.
Today my noble friend has used the device of a Second Reading very wisely, in the same way as did the noble Lord, Lord Houghton, to air the subject of Sunday trading. Although we have a Bill before us which provides for a special clause—a single clause —in fact, the debate has developed very clearly along the lines of those in favour of Sunday trading and those against. The score so far is five for, and five against this Bill. I am firmly in the latter category—that is, in favour of Sunday trading—that we do not need this Bill; we need to do other things.
The Bill brought forward by the noble Viscount, Lord Brentford, is aimed largely at the big stores and ignores all the small people who operate on Sundays. These have been mentioned by the noble Baroness, Lady O'Cathain, and others. That is a very serious matter because Sunday trading at the moment provides employment for about 100,000 families and if the anti-Sunday traders have their way those people will be deprived of an important part of their livelihood. That must be wrong.
I do not see anything incompatible between churchgoing and shopping. Indeed, I indulge in both activities on Sundays. That is perfectly reasonable for a broad spectrum of the population and has been proved so in Scotland. Scottish laws on Sunday trading were reformed some time ago and have worked effectively. Those laws should have been extended to England years ago. We tried to get a sensible Bill on the statute book but it was, unfortunately, thrown out in another place.
I suspect that my noble friend on the Front Bench will hide behind what is happening in Europe and will do nothing. That is reprehensible and deplorable. This matter is long overdue for reform and should be in the manifestos of both parties in the forthcoming general election. Everything suggested today and the Bill put forward by my noble friend Lord Brentford would merely tinker with the issue. The Shops Act 1950 should be repealed in its entirety. If anything is put in its place it should be a simple measure which conforms with whatever is to happen in Europe. But we probably need no measures at all.
In this matter the noble Lord, Lord Harris of High Cross, was quite clear. It was proposed 30 years ago that the Shops Act should be repealed. Since then we have been messing around with the issue, doing nothing and not grasping the problem at all sensibly. It is high time we addressed the issue, repealed the Shops Act 1950 and had a proper, liberal trading system whereby people could enjoy going to church and enjoy freedom of expression and shopping when they wished.
3.32 p.m.
Lord Cochrane of Cults: My Lords, my noble friend Lord Brentford has introduced a commendably short Bill. He has explained his views clearly and suggested more general reform at a later stage.
As your Lordships well know, the law on Sunday trading is in a state of great confusion. By the 1930s it was apparent that earlier Sunday trading legislation, principally that of the Shops Act 1912, itself a consolidation, was no longer serving its purpose. This was partially dealt with in 1936 in a Bill promoted by the Early Closing Association and duly passed. In 1947 the Gowers Committee reported and recommended reform of shops' law because there were too many exemptions and law was contained in too many Acts. In 1950 the present Shops Act came into force, but it is merely a consolidation of earlier legislation. No further reform was ever undertaken, as the noble Lord, Lord Harris of High Cross, pointed out. Bearing that in mind it is not surprising that Rab Butler thought it was antique, because it was really a consolidation of the 1936 laws.
With this Bill we are concerned only with the Shops Act 1950 —Part IV and Schedule 6—which describe what shops may or may not do on Sunday. After some study of Halsbury's Laws of England it is obvious that there is not much certainty in the Act for practical purposes, as a good many local authorities have now found to their cost when attempting enforcement. The whole thing is riddled with exemptions which apply here and there. Perhaps I may attempt to answer the question of the noble Lord, Lord Harris of High Cross. I understand that if the tripe has at least been dipped in warm water and can be classified as partially cooked or cooked, it is exempt, but I have not been able to ascertain whether it would be exempt in an uncooked state were it sold in a butcher's shop, which might be allowed, under a different section of the Act, to open. I think we can leave that matter now.
The Shops Act is widely disregarded and is unpopular with many of those to whom it applies, both shopkeepers and the general public. The law has fallen into such disrepute that shopkeepers openly flout what are reasonably thought to be its provisions because such is the confusion that nobody—even your Lordships' House—can say definitely what the law now is until, in about two years hence, the European Court makes its ruling on the matter. In brief, as a layman, that is how I see the law stands now.
That is the legal side of the matter. The other problem is the moral issue, amply subsumed in the slogan "Keep Sunday Special", a cause to which my noble friend Lord Brentford has devoted much energy and wisdom. However, starting from the same premises—namely, the scriptures—different Christian faiths or sects in England and Wales (and this also applies much wider) have by prayer and thought arrived at entirely inconsistent views as to the purpose of Sunday and how, if at all, it is to be kept holy. On the one hand, Quakers regard every day as equally holy. For them, no Sunday has any unique importance. But others regard Sunday as unique in the opposite way, insisting that all that need not be done that day be put off until Monday. Every party to the

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dispute is well armed with biblical and other authorities which it advances in support of its opinions.
The general public is unmoved by the latter and wishes to go peaceably about its business on Sundays with freedom to shop. As was said earlier, since 1950 no reforming Bill of any significance has succeeded. With the law in its present state of uncertainty, it is wrong to seek power through the Bill introduced by my noble friend Lord Brentford to impose a huge fine on offenders against Section 59(1) of the 1950 Act.
I see that Clause 2 of the Bill applies only to England and Wales. That means that Scotland will be outwith its reach; that is, if the Bill is ever passed. While the 1950 Act applies to Scotland, its effect is almost entirely negated by Section 66 which exempts Scotland from Part IV of the Act. Therefore, there are very few specific provisions relating to Sunday trading in Scotland; basically you cannot be a barber nor can you sell alcoholic liquor except within permitted hours.
Agreement between the commercial and moral interests involved appears impossible. Therefore it is now the duty of the Government to lead with a reforming Bill. As it works well in Scotland and has evolved from total closure throughout the country to a state which I should like, but I hardly dare to describe as "market clearing opening"—with which I hope that the noble Lord, Lord Harris, will agree—no social pressures for reform have built up. That has led to a peaceable state of affairs.
Given the fact that it has worked well in Scotland, I advise that, for a start, a Bill should be introduced to exempt England and Wales from Part IV of the 1950 Act, as was in fact advocated by my noble friend Lord Montgomery of Alamein, and that then such other small reforms as are patently necessary should be added to the legislation. By that means certainty would again reign where chaos now rules. Moreover, from that position, we would be in a far better state to advance arguments to the EC as to why our ideas should be incorporated in such a directive as may eventually take effect, after perhaps many attempts. That is how we could advance peaceably, profitably and for the good of the country.
3.38 p.m.
Lord Simon of Glaisdale: My Lords, those of us who oppose the Bill can at least go some way towards its proponents. But, first, on a personal basis I should like to say that we can and do respect the sincerity that lies behind it and acknowledge the single mindedness. We also fully share the view that the flouting of law on a widespread basis is quite deplorable. What is more, it has repercussions. The flouting of the Shops Act which has gone on for many years has been mirrored recently by the flouting of the Act imposing the community charge. More recently, we have had the lamentable incident of the so-called parliament called by Dr. Siddique in which he calls on his fellow religionists to flout the law whenever they think that it is incumbent upon their consciences to do so. So far we can go with the proponents of the measure.
Where we have some reserve is that there has been
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no acknowledgment that the vociferous agitation against the Government's attempt to reform the law five years ago has led us into this deplorable situation. It was not only predictable; it was predicted, and not just in Parliament. It was first predicted as long ago as the late 1940s when the powerful Gowers Committee said that the legislation was bringing the law into contempt; 40 years later that was repeated by the Auld Committee, which said that it was bringing the law into disrepute.
A law which is in contempt, a law which is disreputable, invites defiance. We can none of us approve of it, but there are always two courses. One is the swingeing penalty to enforce it, and the other is abrogation of a law which has ceased to command public confidence. There is in fact a halfway house which is not on the agenda at the moment. That would be a measure such as this, coupled with a rationalisation of Schedule 5 to the 1950 Act. I believe that that was the course favoured by the right reverend Prelate.
The snag about that course is that no one has been able to find a compromise—a central position—which is free from gross anomaly. Many were canvassed in your Lordships' House five years ago when the Shops Bill was under discussion. All of them again had been scrutinised in great detail by the Auld Committee. None was found workable; so in the end we are faced today with the bare alternative—not on the face of the Bill it is true but in fact—of swingeing penalties to try to bring the lawbreakers to heel or to adopt the course that was recommended by the Government five years ago; namely, to abrogate the law.
As for the swingeing penalties, what the Bill does is to increase the penalty under the 1950 Act, as updated by the automatic increase in penalties in line with inflation, and to multiply the penalty fifty-fold. The alternative, as I said, is total deregulation. In choosing between such alternatives, a number of considerations fall for measure. The first is obviously whether the existing legislation commands widespread general assent as to its social benefits. I doubt whether anyone can claim that of this body of law.
The second consideration is whether it has internal consistency. There have been many references today and on other occasions to the absurd anomalies thrown up by Schedule 5. There is also the astonishing anomaly that it is illegal to sell a soft pornographic magazine on a Sunday but not a Bible. I suppose that I ought also to mention that fresh meat cannot be sold on a Sunday. Anyone who seeks to buy it will be told that he cannot do so because of the schedule, but he may under the schedule if he wishes buy an aircraft.
The third consideration is whether it is externally anomalous. Surely it is. I wonder how many of the proponents of the Bill refrain from travelling on public transport or even in private transport on a Sunday. Certain people of strict religious views go that far. How many of the proponents of the Bill refrain from reading a newspaper on Monday because it has been printed on a Sunday? I very much doubt whether there are more than a handful.
The fourth consideration is whether there is another part of the kingdom that manages to get on

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with deregulation which has not called for swingeing enforcement without incurring social harm. As has been pointed out, Scotland has done so perfectly well and I fancy that Sabbatarianism is more observed in Scotland than in this country. Thus, on all those counts the remedy of swingeing enforcement is highly undesirable.
There is another point that one ought to consider: how easy, how respectable will enforcement be and will it lead to other social ills? Enforcement under this body of legislation has relied consistently on provocative agents. I am sure your Lordships will agree that that is highly undesirable. Increase the penalty fifty-fold and the incentive to the work of provocative agents, the encouragement of corruption by them and blackmail are enormously increased.
For all those reasons, I imagine that your Lordships will as usual give a Second Reading to the measure, but I hope it will not go out as having the seal of approval put on it by your Lordships' House.
3.48 p.m.
Lord Milverton: My Lords, I apologise for not having my name on the list of speakers but I was not sure whether I would be here this afternoon. I support the Bill in principle. I have not spoken much when the matter has previously been discussed. It is not easy. The Bill has much relevance and interest for each one of us in our morals and principles, but basically I support the Bill. I agree with those who have spoken in support of it such as the right reverend Prelate the Bishop of Liverpool, the noble Lord, Lord Elton, and others.
It is surely imperative that the loose law on trading on a Sunday should be clearer and tighter so that it can be upheld. The law at present is often quite contradictory and not at all clear as regards what we can or cannot purchase on a Sunday.
I shall now refer to the big boys, by which I mean the big firms. I admire those large firms which have stated they will not open on Sundays until this matter is cleared up. In spite of the reasons that some large concerns give to try to justify their Sunday opening, I do not think they are helping the situation. What about the smaller concerns? Would they be able to escape the law if they were challenged? They most probably would not escape. However, the big boys can escape the law as they have clout.
I return to the matter of the small firms. They may not wish to open on a Sunday as their employees have worked hard all the week. However, if the larger concerns open on Sundays, the smaller concerns will be forced to do the same. There is something not quite right about the present position and about how the big boys are taking advantage of it. The ideal course—this has already been suggested—is that only shops selling essential commodities should open on Sundays. We are aware that in this land it is not just a matter of taking into account the Christian religion. There are other faiths. The holy day in other faiths may be Friday or Saturday. However, surely Christians can let it be known in a reasonable, humble and meek way
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that Sunday is our holy day. In Holy Communion Christians remember the most essential factor of their faith.
On Sundays people should be able to enjoy healthy leisure, pleasure and family life. I believe safeguards will be written into the legislation to protect employees as regards Sunday working. However, how sure can we be that those safeguards will be adhered to? How sure can we be that those men and women who do not wish to work on Sundays will be allowed to hold that view? I am particularly worried about the big boys in this respect. There may be those who say that some families like to go shopping on Sundays. That is all well and good but—
Lord Simon of Glaisdale: My Lords, is the problem any different as regards the newspaper industry?
Lord Milverton: My Lords, I appreciate that it is considered essential to produce some things on Sundays. The noble and learned Lord has said today that it is up to individuals whether they buy a paper on Mondays. That example shows why this is such a delicate matter. However, I wonder whether it is the case that shops would fall down if they did not open on Sundays.
The Churches have a responsibility in this matter. I hope that somehow we can give a lead and that people will respect the concept that Sunday is a day on which they can rest and find moral, spiritual and physical refreshment. It is important that as far as possible services are available on Sundays for people to attend if they so wish. We should try to provide as many as possible. It is sad that in some places Evensong has had to go, but the Roman Catholic Church is very good at ensuring that there are many services on Sunday for its people.
One can think of Monday newspapers which have to be produced on a Sunday, of travel, restaurants and so on. However, somehow we have to manage affairs so that Sunday is seen to be different and that only those places which offer essential services are open. It is a complex issue. I like to be able to enjoy watching cricket on a Sunday. If one goes to watch a game of cricket one has to pay. Do the cricket authorities arrange matches purely to gain money? I would not say so, although one pays one takes pleasure and leisure in watching the game.
I support the Bill in principle. The issue will have to be gone into so that it can be seen more than is generally realised that Sunday is a special day for all those men and women who uphold the faith. Apart from any legislation, it is for them to show by the way they live what Sunday means to them. Those of us who have come from a clergy house or a manse, as some have, are even more aware of the deep conflict. Perhaps I should not do so because it may not have been noticed, but I apologise—I have only just realised that I forgot to put my collar on this morning.
3.57 p.m.
Lord Harris of Greenwich: My Lords, we forgive the noble Lord.
I should like to begin by saying what the Bill is not about. Despite the speeches of the noble Lord, Lord

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Monson, the noble Lord, Lord Harris of High Cross, and the noble Viscount, Lord Montgomery, it is not about whether we should or should not abandon controls over Sunday trading. In any event, as we are all well aware, that issue was decided by the elected House when it rejected the Government's Bill on Sunday trading. The issue before us today is a great deal simpler. It is the point identified by the noble Viscount, Lord Caldecote—whether we accept the rule of law; whether powerful men and powerful interests can defy the law of England with impunity.
In my judgment it is absurd to argue that because an appeal is before the European Court of Justice the current law has no effect. That was made absolutely clear by the Attorney-General in his Statement in the House of Commons on November 22nd when he said (at col. 913 of the Official Report):
"The law is not suspended".
He added that it was clear that anyone who traded on a Sunday remained liable to criminal proceedings. That is quite clear.
Those who are now opening their supermarkets on Sundays—Tesco, Asda, Safeway, Sainsbury, and, to put the mind of the noble Lord, Lord Lucas of Chilworth, at rest, anyone else who is doing so—are doing it in the full knowledge that they are deliberately breaking the criminal law of England and Wales. They are prepared to do this because the fines to which they are exposed, if convicted of such unlawful conduct, are, as the noble Lord, Lord Elton, said in his speech, derisory—a mere £1,000 maximum. It is this issue to which this Bill is addressed. I should perhaps add that we are in fact imposing substantial penalties on the law-abiding. It is an extraordinary situation that Marks & Spencer, who observe the law, have had to produce leaflets in their stores explaining that they have decided to obey the law of England.
I have no particularly strong feelings on the issue of Sunday trading. Like the right reverend Prelate the Bishop of Liverpool I am not a severe Sabbatarian. Indeed, when the Government's Bill was before the House I think I voted on only one occasion. But I have strong views on the question of whether people should obey the law, and that is the principal reason why I support this Bill. The penalties should be set at such a level that they will deter the calculated law-breaker.
I think at this point it would be helpful to remind the House of what the Attorney-General said on this particular matter in the House of Commons on 27th November. Mr. David Trimble, the Member for Upper Bann, said at col. 916:
"the criminal sanctions that are available to local authorities are unlikely to be effective".
The Attorney-General in reply said:
"I have some sympathy with what the honourable gentleman says about the criminal sanction that is available to local authorities under the provisions of the Shops Act 1950."
Lord Monson: My Lords, may I interrupt the noble Lord?
Lord Harris of Greenwich: My Lords, perhaps I may just finish this quotation. I shall just finish this point, then I shall gladly give way to the noble Lord. In reply to Sir Hugh Rossi, who said at col. 917,
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"is it not a factor in the present situation that the fines that can be levied under the Shops Act are not a deterrent to the kind of people that the House has in mind today"
the Attorney-General said:
"I agree—
Viscount Astor: My Lords, is the noble Lord aware that he is able to quote the Minister in another place but not a Member in another place?
Lord Harris of Greenwich: My Lords, I am well aware of that. I have been in the House quite a long time. I could not explain why the Minister said what he did without putting the question that he was answering. I think that is fairly self-evident. The Attorney-General said:
"I agree with my honourable Friend that the maximum fine is low."
That was the Attorney-General's clearly defined position, and I hope that what he said on that occasion will be reflected in the speech of the noble Earl. I shall now give way to the noble Lord, Lord Monson.
Lord Monson: My Lords, I simply wanted to refer to the noble Lord's law-breaking, as it were, in quoting a Back-Bencher in another place.
Lord Harris of Greenwich: My Lords, as I tried to point out, to give an answer by a Minister without explaining the question that he is answering is a rather difficult operation.
Earl Ferrers: My Lords, I think that the correct version would be that the noble Lord, Lord Harris of Greenwich, should have paraphrased the Back-Bencher but quoted the Minister.
Lord Harris of Greenwich: My Lords, I am much obliged to the noble Earl. I have no doubt that that would have been even better, but as I have done it in the particular way that I have, I have at least avoided the charge that I have in any way inadvertently misrepresented anybody. I hope we may agree on that.
Earl Ferrers: My Lords, would the noble Lord allow me to intervene again?
Lord Harris of Greenwich: My Lords, with great respect to the noble Earl, I have given way on a number of occasions. I think it is now reasonable for me to proceed.
That was what the Attorney-General said on that occasion. But there is an even more important issue before us today. It is whether we are prepared to tolerate a situation in which a number of public companies simply indicate that they are prepared to ignore the law of this country as determined by Parliament. There are a number of precedents for political lobbies announcing that they are prepared to indulge in organised law-breaking. Indeed, the noble and learned Lord, Lord Simon of Glaisdale, gave a number of examples, including that of the appalling Dr. Siddique and his Moslem parliament.
The noble and learned Lord also mentioned the views of the Anti-Poll Tax Federation. The poll tax was deeply unpopular, even with Members of the present Government. That is why they repealed it within the lifetime of a single Parliament. Many of the

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points made by the noble and learned Lord could equally have been made about public attitudes towards paying the poll tax. But it was made quite clear by my honourable friends in another place and indeed by the majority of the Labour Party that there was a duty on people to obey the law of this country. In fact, as we all recall, there was one Member of Parliament who decided not to pay and was prepared to go to prison rather than do so.
At that time Ministers denounced the organisers of the campaign. They said that it was outrageous that Members of Parliament were prepared to associate themselves with such systematic law-breaking. I wholly agree with them. It is deplorable that people who make laws choose to defy them. However, I wonder why Ministers have taken such a different attitude toward the law-breaking that we have seen so far as it concerns large supermarkets. Remarkably more restrained language has been used.
As I said on another occasion—I believe it was when the noble Earl, Lord Ferrers, repeated the Attorney-General's Statement in this House—I very much welcomed the fact that, when Mrs. Thatcher was Prime Minister and a suggestion was made that a number of supermarkets intended to break the law in exactly the way that they have now done, she made it clear that she would be strongly opposed to such a course of action and the matter was dropped. I very much regret that her statement was not repeated on this occasion. I am sure that the noble Earl will tell the House, as he did on the last occasion, that Ministers do not condone the behaviour of the supermarkets. It would be extraordinary were they to do so. I very much hope that he will use similarly emphatic language when dealing with these particular examples of law-breaking.
What can one say about the vigorous attacks by Ministers on those law makers who conspired to break the law? There is in this House a Member with a respected name who has been involved in this matter. It is regrettable that he has chosen not to be present this afternoon in order to justify the action which his stores have taken. It is wrong that Members of either House should place themselves in a position of voting on issues affecting the law of this country and then, whenever their commercial interests dictate, choose to defy the law themselves. I believe that that is wrong.
This House has often debated issues on which Members from all parts of the Chamber have expressed deep concern about what they believe to be increasing lawlessness in society. There have been lamentations about the behaviour of the young, and sometimes not so young. There have been harsh criticisms of those whose behaviour or statements have been said to have encouraged or provided some justification for such misconduct. Today we are discussing just such an issue. The central question before us in my view has nothing to do with the Shops Act. It is about whether powerful interests can ignore the rule of law. I believe that such conduct is unacceptable in any parliamentary democracy and I hope that this House will make that clear today.
4.10 p.m.
Lord Richard: My Lords, in some ways it has been an unusual and fascinating debate. I begin by congratulating the noble Baroness, Lady O'Cathain, at least on turning up. Unlike the noble Lord, Lord Sainsbury of Preston Candover, she did at least come to face the music. I listened to her speech with respect and great interest. However, she will recognise, as would any of us who have practised in criminal courts, that her speech was essentially a plea of guilty and a speech in mitigation. It was not a justification in law for the attitude that Tesco has taken. It was saying, "Yes, perhaps we have broken the law but it's not a very nice law anyway, people don't really agree with the law and, in any case, my Lords"—making a plea to the Bench—"I was not on my own. I was led by others. I was forced into it". Her speech had all the elements of a successful plea in mitigation and to that extent I admire her.
Baroness O'Cathain: My Lords, I thank the noble Lord. I am not well versed in the law, unlike the noble Lord. However, I certainly did not wish to seem to speak in the way that he indicates. I wished to say that Tesco is obviously in a serious position and that I did not feel I could support the Bill because I did not believe that it attacked the central issue. I believe that the central issue has to be attacked, and rapidly; otherwise we shall face a serious situation. Tesco was forced into that position. I hope that I made that plain.
Lord Richard: My Lords, again the mitigation is attractive. Were I sitting in judgment it would have an effect upon my flinty soul when it came to giving a decision on it. However, one has to recognise it for what it is, attractive though it is. It is a firm statement that Tesco took a firm decision to break the law. It may say that it was forced into it for many reasons. It may say that the law needs to be amended. All those statements are perfectly acceptable and may be true. In a moment I shall say something about them. However, as the noble Lord, Lord Harris of Greenwich, pointed out, the debate is not about Sunday trading; it is not about whether we on this side of the House accept the Shops Act. It is not about whether we want a sabbatarian Sabbath to come home to on a Saturday night. The debate essentially is about whether the way of life of this country and indeed the law of the country shall be changed, subverted or ignored for commercial interests by a small group of very powerful people.
The noble Lord, Lord Harris of High Cross, made a fascinating speech. He seemed to be advocating some form of civil disobedience campaign on the basis that it is a shocking law because it cannot distinguish between cooked and uncooked tripe—nor indeed spoken tripe too! Having said all that he then seemed to be saying, "If the law is in such a dreadful state it is right that people should be entitled to ignore the law". I do not accept that for a moment. It is a recipe for chaos. It is not a recipe for good government.
I emphasise at the outset what I wish to say. The issue is not whether we approve of Sunday trading. I

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was brought up in a very Methodist part of west Wales. Indeed I come from a long line of Methodist divines. Therefore my upbringing and background is that of the somewhat puritanical sabbatarianism of my birthplace. If newspapers were in the house they were hidden before my grandfather came in because he was a preacher. If washing was done on a Sunday it was done indoors because one could not possibly hang it outside in case someone saw it. Although I have lived in a Labour seat with a majority of 34,000, the club with the biggest membership was the local Conservative Club because the pubs were closed on Sunday and the Conservative Club was open. I therefore have some knowledge of what we are talking about in this debate. I am bound to say to the House —I do not know whether or not it puts me out of court with the Keep Sunday Special campaign—that I look forward to a slightly more joyous Sunday than some of those I spent as a boy.
My view of Sunday trading is not necessarily that the Shops Act is right, that Sundays should remain as they are or that they should be as they once were. I certainly hope that Sundays will never be as they were when I was a small boy in west Wales. However, that is not the issue: the issue is whether the law should be enforced or whether it should be ignored.
How did that issue arise? It arose simply because some of the larger retailers believed that they saw an opportunity in their own interests to increase their profits by manipulating the reference to the European Court. It was a cynical, cold-blooded decision taken with a sober appreciation and cool calculation of the commercial interest of that firm, as the noble Baroness said. I shall give one example of the kind of attitude that we are up against. The chairman of WH Smith, Sir Simon Hornby, actually said:
"As far as breaking the law is concerned I am afraid that we will have to continue to do so".
That is appalling. It is a shameful attitude for the head of a major public company to take and it runs through the main supermarket chains.
As the noble Lord, Lord Harris of High Cross, has said, there is nothing wrong with people looking after their commercial interests. I accept that view; that is what they are in business to do. On the other hand, one of the functions of government is to ensure that commercial interests, however well they are looked after, are not allowed to impinge or override the rule of law in this country.
Perhaps I may first deal with the European aspect. A reference to the court may be appropriate but two questions then arise. First, does the mere reference to the court (not the judgment of the court) override domestic legislation to such an extent that people are entitled to ignore the law of this country until the European Court has decided? I think not. Surely domestic legislation remains intact unless and until it is reversed or modified by the decision of the court. Although I am not quite so sanguine about the wording as the noble Lord, Lord Harris of Greenwich, I believe that the Attorney-General confirmed that view in his intervention in another place—
Lord Simon of Glaisdale: My Lords, I am obliged to the noble Lord for allowing me to intervene. He will
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acknowledge that the difficulty is that no one knows what the law of this country is in view of the conflicting and confusing judgments which have emanated from the European Court.
Lord Richard: My Lords, with great respect, if we do not know what the law is until the European Court has given its decisions, the law of England must remain the law of England unless and until it is changed.
Noble Lords,Hear, hear!
Lord Richard: My Lords, three judgments that the European Court has already given—in relation to Belgium, to France and to another aspect of this matter in the United Kingdom—held that it was not contrary to the Treaty of Rome for a nation to regulate its Sunday trading. If the position were other than that the law of England shall remain intact and enforceable unless and until it is changed by a decision of the court there would be a recipe for chaos. If every law that were referred to Luxembourg somehow went into limbo and abeyance, if we could forget about it and ignore it, if we need not consider it either in relation to our civil or criminal affairs or to the way in which we regulate our lives, there would be a recipe for total and utter chaos. I cannot believe that that is the position.
The problem as I see it is that if the law remains intact and enforceable unless and until we have the judgment of the court, why do not the Government help with its enforcement? Two problems flow from that. First, the penalty of the existing Shops Act—namely £1,000—is not sufficient to deter the major supermarkets. For the Sainsburys of this world it is a derisory penalty. No doubt they would take the view, as some retailers have in the past, that the publicity is well worth the —1,000 fine.
Secondly—and this is the other problem—the attempt to use the quasi civil procedure of injunction has proved to be impossible for the local authorities to pursue because of the necessity for a cross-undertaking as to damages. It is in relation to those two problems that the Bill is extremely important.
If every Sainsbury's store in the country were to be faced with a fine of up to £50,000, it may affect that cold assessment of where that chain's commercial interests lie and produce a different result. I believe that that result would be an almost unanswerable argument in favour of the Bill.
Not only do I not agree with the Government's attitude; I find it extremely difficult to understand. On 27th November Mrs. Angela Rumbold said:
"I make it plain that I do not condone the plans of some major retailers to open their shops on Sundays before Christmas". [Official Report, Commons, 27/11/91, col. 920.]
Was that the maximum amount of pressure that the Government were prepared to bring on Sainsbury and Tesco? To say that they do not condone it is an open invitation to go ahead.
It seems to me that, if legal action is barred under the Shops Act because the fine of £1,000 is derisory and the civil aspect is difficult because of the cross-undertakings as to damages, extra legal and political measures should have been taken by the

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Government. I believe that it was said by a director of Tesco—but the noble Baroness will know that better than I—that it would have taken a mere telephone call from John Major and the action would have been stopped at the outset. Why was that telephone call not made? When it became clear that stores were going to open on Sundays before Christmas, why was pressure not brought to bear? As the noble Lord, Lord Harris of Greenwich, pointed out, the last Prime Minister had no hesitation in using all of her not inconsiderable influence and powers in order to persuade the major retailers not to take such action a few years ago.
A vigorous campaign of dissuasion by the Government alongside a measure such as is proposed by this Bill may well have worked. One asks why on earth they did not do that. The only sensible answer that one can give is that they did not mind about it. They did not mind about it for a number of reasons. I suppose that they thought that the Shops Act is in a mess and if somebody could drive a coach and horses through it then the matter would be forgotten about. That would remove one difficulty for the Government.
It is always tempting to quote one's own speeches and I rarely do that. However, I am entitled to say that I warned the Government when this matter was raised on 27th November that this problem would not be confined to the period before Christmas. Your Lordships may remember that when the problem first arose it was stated that the stores would open only in the pre-Christmas period and then matters would revert to normal after Christmas. A pattern is now being established in this country. A major change is taking place in our national way of life. It is being sneaked through by extra-parliamentary and extra-democratic means. It is being done with the connivance of the Government and I believe that it is totally wrong.
If the law can be ignored in that respect, it can be ignored in other respects. I had a sentence in my speech saying that the Government are conniving at breaches of the Shops Act but are enforcing breaches as regards the poll tax. From today's newspapers it seems that the Government cannot even prosecute those who have evaded paying their poll tax with any great success, but perhaps that is not connivance but merely incompetence. This is a free vote and I should not dream of pressing any of my noble friends to vote in the way that I have indicated. I find this to be a useful Bill. I shall vote for it. It may have to be amended in Committee but at least it will give the Shops Act some teeth. If the Shops Act has some teeth and the Government have some guts, we may yet stop this problem.
Lord Monson: My Lords, before the noble Lord sits down, will he not agree that the purpose of the great majority of laws is to prevent individuals from injuring others or the state? That is why the poll tax law must be upheld; if some people do not pay, the burden is heaped upon the shoulders of others. The specific crime which the noble Lord has been attacking for the past few minutes is one of the few which is in all essentials a victimless crime and that is why there seems to be a good deal less urgency in enforcing it.
Lord Richard: My Lords, if I may say so to the noble Lord, Lord Monson, I am not so arrogant as to believe that my own personal opinion on the efficacy or desirability of any piece of legislation is such that I would be entitled to urge anyone else to break that law. If the law is bad, the remedies are clear; it must be changed. If it is to be changed, it should be changed by Parliament; it should not be changed by the action of a few private individuals.
4.25 p.m.
Earl Ferrers: My Lords, my noble friend introduced a Bill on the topical but thorny subject of Sunday trading. As is usual, the heavy armoury from both sides has been wheeled out and the barrels have been trained—I suggest incorrectly—on the Government. I shall come to that later.
I first congratulate my noble friend on his pertinacity, on his indefatigable stamina and on the clarity of his exposition. I congratulate him also on the brevity of his Bill. Without being mean, that just about exhausts my locker of congratulations to my noble friend on the Bill.
I do not propose to become involved in the arguments about trading on Sunday. As the noble Baroness, Lady O'Cathain, said, Sunday is special; we all know that. Some shops can open; some people—as she put it, even right reverend Prelates—have to work on Sundays. If no one worked the whole fabric of society would collapse. They are cogent arguments. We heard some of them today and others on other days. I do not consider it to be my responsibility to become involved with them, to comment upon them or add to them. My duty is simply to give Her Majesty's Government's view on my noble friend's Bill.
My noble friend Lord Lucas of Chilworth was right when he said that we were in danger of having a Sunday trading debate. He said that at the beginning of the debate and I think that at the end of the debate his words have proved fairly correct.
Before I comment on the substance of my noble friend's Bill it may be helpful to look at the broader context within which it must be seen. Your Lordships will recall that I repeated in your Lordships' House on 27th November an answer that was given in another place by my right honourable and learned friend the Attorney-General on the enforcement of the present law on Sunday trading in England and Wales and also a Statement which my right honourable friend the Minister of State at the Home Office made in another place on reform of the law on the same day. I fancy that your Lordships will not expect me to go over all that ground again today, other than to say this.
The noble Lord, Lord Harris, said, and it was echoed by the noble Lord, Lord Richard, that the Government had been quiet in condemning those who break the law. That is not so. My right honourable friend the Minister of State in another place, when the subject was discussed on 27th November, commented on the matter. I shall quote my right honourable friend's words because she is a Minister and I shall be in order in doing so. She is not a Back-Bencher and therefore I shall not fall into the same trap as the noble

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Lord, Lord Harris of Greenwich, by quoting a Back-Bencher, which he should not have done. My right honourable friend said,
"I make it plain that I do not condone the plans of some major retailers to open their shops on Sundays before Christmas. I make it equally plain that I commend those retailers who remain committed to complying with the clear intentions of the law".—[Official Report, Commons, 27/11/92; col. 920.]
That is perfectly plain. That is the Government's position. It was said then and I repeat that today with the force of the Government's views.
However, there are a number of points I should like to underline. My right honourable and learned friend the Attorney-General, acting in his independent capacity as a Law Officer of the Crown, clearly said that there was no question of the law on Sunday trading being suspended. Local authorities can still continue to apply for injunctions and any trader who trades on a Sunday, relying only on the present uncertainty concerning Community law, remains liable to criminal proceedings. That is the position which was clearly put by my right honourable and learned friend the Attorney-General. It is for local authorities themselves to decide their own course of action.
Your Lordships' House, acting in its judicial capacity, concluded in May last year that our Sunday trading laws are unclear. It has, therefore, referred questions to the European Court of Justice which are designed to establish whether the relevant provisions of the Shops Act 1950 are part of our law. Until the European Court gives its ruling to your Lordships, the fundamental question is whether the Shops Act 1950 remains the law and not whether the local authorities can enforce it.
I recognise that the prevailing uncertainty over this has caused a great deal of public disquiet. We have therefore asked the European Court for an early date for the hearing of this matter so that your Lordships' House can in its judicial capacity in turn proceed to give its judgment. Only then will the Government be in a position to bring forward proposals for the reform of the law.
My noble friends Lord Brentford and Lord Ashbourne referred to the Government's inactivity. Your Lordships and they know that we tried to change the law in the Shops Bill 1986 but another place did not agree to it, which was its right. That Bill did not become law. Your Lordships will also know that you cannot change the law when you cannot get agreement in Parliament. You will not get that agreement until there is reasonable agreement outside Parliament. That is the agreement which my right honourable friend the Minister of State, Mrs. Rumbold, is trying to find. That is proving somewhat elusive.
For those who say that the Government should bring in a Bill now to rectify the situation, I say that it is simply impracticable to change the law when the judgment of the European Court is expected. The Government are frequently accused of introducing hasty legislation. Earlier today the Government were accused of bringing in hasty legislation in the form of the Aggravated Vehicle-Taking Bill. The noble Lord,
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Lord Morris of Castle Morris, used a somewhat unattractive expression when he said that the introduction of that Bill was a knee-jerk reaction.
The mind reels to think of the accusation that would be levelled against the Government if they decided to introduce now a Bill on this subject when a judgment from the European Court over this difficult matter has not yet been received and is actually awaited. The right reverend Prelate the Bishop of Liverpool said that the Government have a duty to bring in a Bill. We are determined to press forward for a reform of the Sunday trading law so that we shall have a law which can at the same time be both workable and enforceable and which will command both popular support and the acceptance of a majority in Parliament.
My noble friend Lord Elton was worried about the law not being even-handed. He said that if the local authorities have to give cross-undertakings for damages to businesses if they are found to be wrong, likewise businesses should have to give cross-undertakings to forfeit their profits if the law is shown to be not what they thought it to be. He asked what the Government proposed to do about that or whether there is anything that they can do.
My noble friend was also kind enough to say that he will be quite happy if I do not give him an answer now. Perhaps I may take up his offer of making him happy because I would prefer not to give him an off-the-cuff reply which might, even for me, turn out to be wrong or at least incomplete. I shall certainly seek advice on the matter and I shall write to him as he requested. I shall put a copy of that letter in the Library as he also requested.
My noble friend Lord Brentford is chairman of the Keep Sunday Special Campaign, as we all know. His Bill has been prompted by that organisation's concern over the present position of the law on Sunday trading. I understand that concern. As my noble friend made clear, the Bill provides for a considerable increase in the maximum fine which a magistrates' court may impose for a breach of Part IV of the Shops Act 1950. Under his Bill the maximum fine which could be imposed on summary conviction for an offence under Section 59 of the 1950 Act of breaching the provisions of Part IV would be raised to £50,000. The maximum penalty for this offence is a fine at level 4 on the standard scale. At present this is £1,000 but it will be increased to £2,500 when measures in the Criminal Justice Act 1991 come into force in October this year.
In his enthusiasm for the Bill the noble Lord, Lord Richard, seemed to have forgotten some of his legal knowledge, of which he has copious quantities. I must advise your Lordships that the fine proposed in my noble friend's Bill exceeds the normal statutory maximum of £2,000 which at present can be imposed by a magistrates' court. The Government do not consider that the offence in Section 59 of the 1950 Act fulfils its first criteria for an exceptional summary fine. The criteria are that the offences must be likely to cause serious harm to public health, serious harm to the environment or serious public nuisance.

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Other than in exceptional circumstances where a defendant may be made liable to a particularly high fine, especially one of the magnitude which is provided for in the Bill, it is the Government's view that it is only fair the defendant should have the option, for which no provision is made in my noble friend's Bill, of having his case heard at the Crown Court before a jury.
I must also advise your Lordships that the Government do not consider that now is the right time to seek to increase the maximum penalties which are available to the courts for breaches of the Sunday trading laws in England and Wales, when there remains at least the possibility that the relevant provisions in the Shops Act 1950 may in fact prove to be incompatible with European Community law.
Much of the argument about the present position is that the law with its present penalties is not being enforced. If that is so, my noble friend Lord Lucas of Chilworth is right in saying that the Bill will do nothing to aid the enforcement of the law; all it does is to raise the penalties for action which, so the argument goes, is not being prosecuted at present.
The appropriate vehicle for considering the introduction of any increased penalties for breaches of the Sunday trading laws in England and Wales would be a Bill which sought to reform those laws as a whole; and we have made it quite clear that we intend to bring forward proposals for reform once the position in Community law is clear.
My noble friend Lord Ashbourne asked whether the Government will increase the fines or include the offence of illegal Sunday trading within the list of offences for which a confiscation order may be made. The answer is that we would not. It would not be sensible to increase the sanctions which are available to the courts for offences of breaching the Sunday trading issue either by increasing the present maximum fine or by enabling the magistrates to make an order confiscating the financial benefit made by the trader concerned when it is possible that those laws might be found, in the light of the judgment of the European Court of Justice, to have been superseded by European law.
My noble friend Lord Brentford in drawing attention to Mr. Branson's company, Virgin, in Paris, became so excited by what had happened that he was catapulted into verse in which he acknowledged that he was not an expert—and from which some of your Lordships may have come to a not dissimilar conclusion—especially when it comes to rhyme. As I always do on difficult matters I took advice on this verse. Not from the usual sources from where Ministers take advice, but from my noble friend behind me—none other than the noble Lord, Lord Elton, who is himself no mean dab hand at a bit of poetry. I can only reply to my noble friend Lord Brentford in his own metre. In those terms I would say that:
"The noble Lord Brentford, said 'I'm
Not overly given to rhyme.
Four lines out of five
Is the maximum I've
Been able to rhyme in the time."
Lord Elton: Will the Minister kindly give way?
I'm most grateful it means I can say,
He was not meant to quote
That short rhyme which I wrote;
Will he now give it back to me, pray?
Earl Ferrers: My Lords, I am indebted to my noble friend for both pieces of magnetic poetry.
Your Lordship may have discerned from what I have said that I have produced some fairly cogent arguments why the Government are not enthusiastic about my noble friend's Bill. However, in good and parliamentary tradition, I shall retain a position of dignified neutrality. That in no way detracts from the importance of today's debate, which has given your Lordships another valuable opportunity to discuss the law on Sunday trading and also to express your Lordships' own diverse, and peculiarly adamantine, opinions on this very difficult issue.
4.40 p.m.
Viscount Brentford: My Lords, I thank my noble friend Lord Ferrers for his eloquence. Much of what he said seemed to be in support of the Bill although he ended up moving in the opposite direction. I thank all noble Lords who have contributed to what has been a fascinating and illuminating debate. It seems to me that many of the remarks have been more general on the question of Sunday trading rather than on the question of the Bill. I am sure that I was the first offender to fall into that trap.
I wish to make one or two comments although I do not propose to comment on many Sunday trading issues. I fully accept that many of the traders now opening do so unwillingly and purely to retain their market share. Tesco falls into that category. I certainly do not wish to impugn any other unworthy motives. I am grateful to the noble Baroness, Lady O'Cathain, for what she said. It is, however, right to point out that the Big Five to which I referred—I did not refer to all the other chains that are opening—have a 62 per cent. share of the market. There is a great need to protect the smaller shops which are suffering from the law breaking of the larger shops. That is also militating against employment opportunities. My noble friend Lord Montgomery made that point with the law breakers in mind but it is also true from the point of view of the smaller shops that are being pushed out of business by this law breaking. The Bill is meant to help in that regard.
I do not see how one can keep the criminal law out of enforcing national law. All other branches of law breaking are covered by the criminal law and I do not see why this area should not be as well. I should like to comfort the noble Lord, Lord Harris of High Cross, by saying that I do not support the death penalty in normal circumstances. Being of a rather more generous nature than my noble friend Lord Lucas of Chilworth, I am even prepared to extend that exemption from the death penalty to those noble Lords who called my Bill miserable.
Perhaps I may make a point on opinion polls. If people are asked in an opinion poll whether they want shops open on Sunday, the majority will answer yes.

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If they are asked whether they want all shops to be open on Sunday if it means increased costs, the majority will answer no.
As has been said several times, what is proposed is a maximum fine. I am confident that the magistrates are well able to differentiate between when £1,000 is appropriate and when £50,000 is appropriate.
I fully endorse what the noble and learned Lord, Lord Simon of Glaisdale, said about the need to support a sensible reform of the law. The law is being flouted at present and, as has been said, that gives a very bad example to the young and the not so young of the country. The law under the Shops Act should be a deterrent.
In conclusion, perhaps I may say to my noble friend Lord Ferrers that I should be very happy to include an amendment to give an option to a defendant of appealing to the Crown Court if he so wished. I have no problem with my noble friend's suggestion. I hope that the House will give the Bill a Second Reading.
4.45 p.m.
On Question, Whether the Bill shall now be read a second time?
Their Lordships divided: Contents, 26; Not-Contents, 20.

Division No. 1

CONTENTS

Ailesbury, M.

Portsmouth, Bp.

Ashbourne, L.

Prys-Davies, L.

Beaumont of Whitley, L.

Reading, M.

Brentford, V. [Teller.]

Richard, L.

Caldecote, V.

Robertson of Oakridge, L.

Elton, L. [Teller.]

Rochester, L.

Graham of Edmonton, L.

Runcie, L.

Harris of Greenwich, L.

St. Albans, Bp.

Lauderdale, E.

Seear, B.

Liverpool, Bp.

Thurso, V.

Milverton, L.

Underhill, L.

Mishcon, L.

Williams of Elvel, L.

Norwich, Bp.

Winchester, Bp.

NOT-CONTENTS

Auckland, L.

Lucas of Chilworth, L. [Teller.]

Brougham and Vaux, L.

Merrivale, L.

Cochrane of Cults, L.

Monson, L.

Colwyn, L.

Montgomery of Alamein, V.

Craigavon, V.

[Teller.]

Denham, L.

Morris, L.

Harris of High Cross, L.

O'Cathain, B.

Houghton of Sowerby, L.

Simon of Glaisdale, L.

Killearn, L.

Strabolgi, L.

Kilmarnock, L.

Vivian, L.

Kinnaird, L.

Resolved in the affirmative; Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at six minutes before five o'clock.