Lords Sitting of 4 June 1992

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.
Noble Lords Noble Lords—Took the Oath.

Environmental Protection Agencies
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress is being made in establishing the environmental protection agency for Scotland and the proposed similar agency for England and Wales.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, The Government intend to create environment agencies for Scotland, England and Wales at the earliest legislative opportunity. We are currently examining the results of the recent separate consultation exercises and will announce our plans for the agencies as soon as possible.
Lord Campbell of Croy: My Lords, I am grateful to my noble and learned friend for his reply. I welcome the progress which has been reported in Scotland, where the Secretary of State for Scotland possesses all the environmental functions and his own corps of inspectors. However, what is happening in England and Wales? I ask that because a year ago there were high hopes for a body which would exercise overall vigilance to forestall pollution and damage.
Lord Fraser of Carmyllie: My Lords, as my noble friend will appreciate, in the consultation paper published by the Secretary of State for the Environment and the Secretary of State for Wales four options were spelt out. A large number of responses were received in answer to them. The Secretary of State is currently considering which of the options should be the one to go forward.
Baroness Nicol: My Lords, in view of the fact that some sea defences are no longer cost effective to maintain, can the Minister assure the House that the proposed environmental protection agencies will be given sufficient funds to enable them to compensate landowners where land is lost through flooding?
Lord Fraser of Carmyllie: My Lords, the noble Baroness will appreciate from the answer that I have just given that we are considering a number of options which set out what might be the appropriate model for an environmental protection agency in England. At least one of those options would not embrace anything to do with sea protection, which will remain with the National Rivers Authority. In those circumstances, we will need to know what particular model is to be selected for England and Wales before a complete answer can he given.
Lord Carmichael of Kelvingrove: My Lords, can the noble and learned Lord given any indication of the length of time involved? I know that he has given some clues as to the period of consultation, but is there any possibility of him giving the House some idea of a likely timetable for the legislation? As regards Scotland, will it at least include the much-promised establishment of a national parks authority?
Does the Minister agree that some effort will be needed to consolidate as much of the legislation on environment as is possible? While I fully understand the point made by my noble friend Lady Nicol about compensation for landowners—and I believe that that will be necessary—I hope that the legislation, if it comes, will be much more thoroughly drawn than the present legislation which has caused a great deal of discomfort and criticism in Scotland on the question of compensation to landowners.
Lord Fraser of Carmyllie: My Lords, in answer to the first part of the noble Lord's question regarding a national parks authority, the short answer is no. I cannot go further than to say that the plans will be announced as soon as possible. As the noble Lord will appreciate, there was no mention of that in the legislative programme announced in the Queen's Speech. However, I should indicate to the noble Lord that drafting of the Bill will proceed as soon as possible so that we are in a position to take advantage of an early legislative opportunity.
Lord Cledwyn of Penrhos: My Lords, I apologise for following my noble friend but I have a most important question to put to the noble and learned Lord. He referred to an environmental protection agency for England, but may we all assume that there will also be an environmental protection agency for Wales?
Lord Fraser of Carmyllie: My Lords, with respect to the noble Lord, in my original Answer I referred to environmental agencies for Scotland, England and Wales. Certainly Wales will not be excluded from the ambit of an agency.
Viscount Caldecote: My Lords, can my noble and learned friend explain the division of responsibilities among the environmental protection agency, English Nature, and similar bodies in Scotland and Wales?
Lord Fraser of Carmyllie: My Lords, the short answer to my noble friend's question is no. The particular model which is to be selected for the environmental protection agency has not yet been established.

Package Holidays: EC Directive
3.11 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What impact they consider the proposed EC directive on package holidays would have on school exchanges and twin town visits; and whether they will seek either amendment of the directive or a derogation for the United Kingdom.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, most school exchange visits would not be affected as they do not constitute packages as defined in the directive. Town twinning visits are also usually organised by volunteers who act as agents for the individual customers. In these cases they, too, are unlikely to be organisers as defined in the directive, and the requirements of the directive will not apply to them. Therefore, I see no need to seek any amendment.
Lord Boyd-Carpenter: My Lords, I am much obliged to my noble friend for that reassuring Answer. I take it to mean that the proposals, whatever their merits in other directions may be, will not affect either school exchange visits or representatives of towns with twinning arrangements. Can my noble friend confirm that that is right?
Baroness Denton of Wakefield: My Lords, the proposals will not affect these two areas because those arranging such visits usually act as agents for the school or the group of town people and then request organisers to deal with the package.
Lord Bruce of Donington: My Lords, will the noble Baroness please inform the House what advantages the Government consider will accrue to the United Kingdom if the proposed directive comes into operation? If they do not see any particular advantage to the UK, will the noble Baroness ensure—or ask her right honourable friend to ensure—that the directive is returned to the Commission with the request that the Commission itself may perhaps take a package holiday?
Baroness Denton of Wakefield: My Lords, I do not feel that this is the time in European matters for me to be quite as assertive as the noble Lord asks. Perhaps I may say more seriously that the Directive was adopted unanimously. We believe that buying a package holiday is very important for many people. They buy "off paper" and such a holiday constitutes a great deal of pleasure in their lives. The Directive offers protection to the customer and we are delighted to support it.
Lord Williams of Elvel: My Lords, the noble Baroness has confirmed, as I suspected, that the Directive has already been approved and therefore there is no question, as the noble Lord, Lord Boyd-Carpenter, requests, of there being either an amendment or a derogation for the United Kingdom. Can the noble Baroness therefore tell us when the Department of Trade and Industry will issue the appropriate regulations, primary legislation, or whatever is required, to put the Directive into United Kingdom law? What is the timetable on that? Secondly, are the Government satisfied that in the case of all people taking package holidays, whether they come from schools or elsewhere, that if travel companies go bust there are satisfactory arrangements for people to get their money back?
Baroness Denton of Wakefield: My Lords, I am delighted to reassure the noble Lord that the answer to
1022
the latter part of his question is the purpose of the Directive. I am also pleased to say that we know of no instance where a British tourist on a foreign package holiday has in the past lost money. However, we are very conscious of the costs this Directive could have put on independent travel operators—those offering greater choice than the normal package—and there has been considerable consultation by the department. The Directive will be in force by the end of this year.
Lord Dormand of Easington: My Lords, can the Minister tell the House whether the Directive has anything to say about the insurance of children on school exchanges? Is she aware that in recent years there have been some pretty horrific accidents on school exchanges? That is the most serious effect. Is she also aware of the considerable evidence that teachers are now very reluctant to become involved in school exchanges for that reason?
Baroness Denton of Wakefield: My Lords, I agree with the noble Lord that this is a matter of great concern, but it is outside the scope of the Question and the Directive.

Local Authorities: Job Creation
3.16 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they propose to offer any incentive to local authorities to create jobs by undertaking new industrial or construction projects.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde): My Lords, the Government believe that local authorities already have appropriate powers and resources. They have the discretion to decide what should be done to create jobs in their own individual areas. We have no plans to provide any additional incentive to local authorities.
Lord Molloy: My Lords, I am grateful to the noble Lord for that reply. I hope that those local authorities who are complaining will take note of what he said because there are many who wish to increase their housing production, the building of welfare centres and, indeed, administrative centres. The construction industry believes that it can build some of the projects that local authorities feel they ought to have. Therefore, I should be most grateful if the proposition of the Question could at least be considered.
Lord Strathclyde: My Lords, I am always eager to satisfy the noble Lord, Lord Molloy. He may be very pleased to hear that this year, 1992–93, total council spending by central Government is some £30 billion. We are spending £700 million on schools; £1.7 billion on hospital buildings by the NHS; an extra £68 million for prison refurbishment and 21 new prisons over the next two years; £325 million for maintenance and repair and £106 million for new buildings. We are spending the money and no doubt the construction industry will be one of the beneficiaries of that.
Lord Mellish: My Lords, will the Minister be good enough to say something extra about the local authority money—which was gained through the sale of their own council properties, and which I endorsed —which is being held by the Government, thereby preventing local authorities from building?
Lord Strathclyde: My Lords, of course this is an old chestnut that comes up from time to time. I think that the whole House realises that if we were to relax the rules on capital receipts those areas that happen to get the highest receipts would then be in the position of being able to spend more money, whereas the current system depends on need rather than on high capital receipts.
Lord Dean of Beswick: My Lords, in his Answer to my noble friend Lord Molloy the Minister implied that the Government had no additional plans to involve the local authorities. But frequently the Government have quoted the Audit Commission's report when it suited them and when it was in support of their policies. Is the Minister aware, as I am sure he is, that the very recent report by the Audit Commission on the question of local authority housing, while making some criticism of local authorities makes a very strong case that the Government are leaving local authority housing drastically underfunded. Bearing in mind the point made by the noble Lord, Lord Mellish, this is not a chestnut, it is a reality. The Audit Commission is saying quite clearly that billions of pounds are needed to put the existing council houses in stock and bring them up to a sufficient state of repair with reasonable amenities. Will the Government for once take another look at the situation and do something positive in this matter?
Lord Strathclyde: My Lords, what I am aware of is that the noble Lord, Lord Dean of Beswick, has that Question down on the Order Paper for Wednesday, 10th June. I shall be delighted to answer it then.
Lord Hylton: My Lords, has the Minister read reports claiming that between now and the end of the year some 300,000 construction workers are likely to be laid off? Does that not give an excellent opportunity to build affordable housing rather sooner?
Lord Strathclyde: My Lords, I have every sympathy with the construction industry and those people who worked in it but who have lost their jobs over the past couple of years. However, there is some good news on the horizon. In the first quarter of 1992, new orders were up by 3 per cent. compared to the fourth quarter of 1991, and by 4 per cent. on the first quarter of 1991. We can already see that there has been a substantial improvement.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that although we have had this Question many times, part of his Answer is new, at any rate to me? It is that although some areas have money they cannot spend it because other areas do not have money. Why prevent those which are in a position to do something from doing so because others cannot? It
1024
seems to be a principle that runs against the general idea for which I believed the Conservative Party stood.
Lord Strathclyde: My Lords, there are several principles at stake here. The first is that we must control public expenditure. Money spent by local authorities adds to overall public expenditure. Secondly, money which comes from capital receipts is spent partly on redeeming debt, and that is an important factor. The third principle is the one I outlined to the noble Lord, Lord Mellish.
Lord Mackie of Benshie: My Lords, has the Minister read the interesting report which highlights the fact that homelessness in rural areas is higher than it is in many inner city areas? The reason is, of course, that many council houses in the country have been sold thus reducing the stock. Added to that, the buying of houses for holiday homes has produced a serious situation. Surely, the release of money to rural areas to build houses would benefit many people.
Lord Strathclyde: My Lords, the sale of council houses in itself does not reduce the overall housing stock. On the question of homelessness, especially in rural areas, the Government have taken many initiatives during the past few years to improve the situation.
Lord Stoddart of Swindon: My Lords, is the Minister aware that as a result of a well-directed shaft from his noble friend Lord Harmar-Nicholls, he appeared to change his ground on the use of housing resources? In his first supplementary answer he appeared to say that there were some areas that had a great deal of money but no housing problem and they should not be allowed to spend the money while, on the other hand, there were areas with a housing problem which did not have much money. That may have been reasonable, but then in his reply—
Noble Lords: Question!
Lord Stoddart of Swindon: Yes, I am coming to that. In reply to his noble friend the Minister said that the matter was one of control of public expenditure. Will he explain what is government policy, because those councils with a housing shortage which are desperate to build new houses and which have a great deal of money would be interested to know the real reason?
Lord Strathclyde: My Lords, I hope that the noble Lord will accept that the two answers are compatible. There are two different reasons for coming to the same conclusion. We do not want to overspend from the public sector, and we do not want local authorities which have had substantial receipts to be able to spend all that money in one go in their local areas. Furthermore, the whole provision of social housing —if I may call it that—is not just the preserve of local authorities. Housing associations and the private sector are making great inroads into the provision of that housing.
The Countess of Mar: My Lords, have any calculations been made as to the cost to the Inland

1025
Revenue of lost taxation and the cost to the Department of Social Security of paying unemployment benefit and income support set against the cost of having construction workers employed on building houses for homeless people? There is also the cost of homelessness and bed-and-breakfast accommodation. Have those calculations ever been made, or do not the different departments speak to one another when it comes to costings?
Lord Strathclyde: My Lords, the question is substantially wide of the Question on the Order Paper, but I am conscious that part of it will be answered in a few minutes by my noble friend Lord Henley.
Lord Stallard: My Lords—
Lord Skelmersdale: My Lords—
The Lord Privy Seal (Lord Wakeham): My Lords, my noble friend was seeking to ask a question. I wonder whether we could have one more question and then move on.
Lord Skelmersdale: My Lords, is my noble friend aware that there is one way to resolve the dilemma posed by the Question asked by the noble Lord, Lord Molloy; namely, that as local authorities can use 100 per cent. of their capital receipts for building for immediate resale that would be an excellent way for them to help the construction industry in these difficult times?
Lord Strathclyde: My Lords, my noble friend makes an interesting and useful point. It is one that I am pleased he has brought to the notice of the House.
Lord Williams of Elvel: My Lords, with the greatest respect to the Leader of the House, we have a certain amount of time to spare, if I may say so. May I therefore put to the Minister another question, if the Leader of the House will permit me? In his Question my noble friend refers to undertaking new industrial projects. As I understand it, in response to the noble Lord, Lord Mackie of Benshie, the Minister said that local authorities were undertaking plenty of new industrial projects. Will he give examples of where local authorities have been encouraged by the new, dynamic, all-seeing, all-dancing Department of Trade and Industry to introduce new industrial projects into the rural areas about which the noble Lord was talking?
Lord Strathclyde: My Lords, that is not the role of the Department of Trade and Industry; it is the role of local authorities which can often be key players in creating job opportunities or regenerating run-down sites. Perhaps I can expand. That input can take various forms: the assembly of land for sale to a developer; the provision of infrastructure to new or regenerated industrial or office sites; and the bringing together and co-ordination of interested parties from the public, private and voluntary sectors. Many local authorities provide advice centres or funding for local enterprise agencies. There is an enormous amount that local authorities can achieve and do achieve. I hope that that will continue.
Lord Molloy: My Lords, is the Minister aware that the construction industry has tens of thousands of skilled artisans who are now unemployed, and expert managers who cannot find jobs? If he would only agree that the principle of the Question should be examined, I feel sure that he would be rewarded, because the construction industry would be willing to supply him with information so that local authorities which need schools, hospitals and welfare centres could be provided with them and construction industry unemployment could be reduced.
Lord Strathclyde: My Lords, I am hopeful that with the extra money that the Government are providing this year for substantial infrastructure projects the construction industry will be one of the main beneficiaries.

Unemployment: Loss of Tax Revenue
3.29 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Why they do not attempt to estimate the loss of revenue to the Treasury as a consequence of unemployment.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, we do not estimate such a figure because it would depend, for example, on projecting for those who are currently unemployed what their tax liabilities and earnings would be once they had found a job.
Earl Russell: My Lords, I thank my noble kinsman for that Answer. I appreciate that this is a difficult area, but does he agree that for Ministers, as for motorists, poor visibility provides no excuse for not looking? Does he agree that since the Government have no estimates of their own they are not in a good position to challenge other people's? Is he aware that the Unemployment Unit has calculated the cost of unemployment to the public sector borrowing requirement at £24.8 billion a year? Will the Government accept that figure until they can come up with a better one?
Lord Henley: My Lords, I totally disagree with my noble kinsman. Merely because we recognise that it is impossible to make such guesses as to the costs does not mean that we have to accept other people's assumptions. Many different assumptions have to he made, as I said in my original Answer, about what any individual might earn and spend after obtaining a job. Because those assumptions can range so widely, the result is likely to produce a figure which, in the end, is pretty meaningless.
Lord Desai: My Lords, will the Minister agree that while it is not possible to give a single figure, a variety of figures may be given, allowing for the Treasury's usual range of errors? We should still have a better idea of what the minimum and maximum costs could possibly be. Will the Minister also agree that even the minimum may turn out to be not less than about £15 billion?
Lord Henley Lord Henley My Lords, I shall neither agree nor disagree with any figure. My feeling is that even if one tried to produce minimum and maximum figures, the range would be so wide as to render them entirely meaningless.
Lord Monson: My Lords, will the noble Lord agree that as long as our currency is tied rigidly to the deutschmark—a policy much favoured by the political party to which the noble Earl, Lord Russell, belongs —there will he high and continuing unemployment, as the unfortunate unemployed millions in France can testify?
Lord Henley: My Lords, the noble Lord makes an interesting point but it is another Question.
Lord Donoughue: My Lords, will the Minister accept that the range of figures given by respectable economists is quite narrow? One of the most respectable sources is the House of Commons' own statistical unit model. Will he also acknowledge that not surprisingly these figures closely coincide with the public sector deficit which mainly arises from unemployment?
Perhaps I may help the noble Lord with the figures. Basically, the loss of revenues are believed to be about £11 billion a year. The cost of direct benefits is believed to be about £9 billion a year, giving a total cost of about £20 billion a year at the low unemployment figure that the Government publish. Will the noble Lord agree that that financial and human cost is not a price worth paying?
Lord Henley: My Lords, again I neither accept nor disagree with the figures put forward by the noble Lord. It may be that respectable economists, as the noble Lord referred to them, have put forward certain figures. However, respectable economists have been wrong in the past. There is no particular reason why they should be right on this occasion. As I said when I originally answered the Question, one has to make too many assumptions to produce any reliable figures at all.
The Countess of Mar: My Lords, perhaps I may pose the same question to the noble Lord as I asked previously. Why is it that departments seem to be unable to speak to each other and to make calculations rationally, when every other human being on the planet can see that one cost must be set against the other?
Lord Henley: My Lords, if the noble Countess had been listening to my Answer, she would now know exactly why we cannot give the figures for which she asked. However, I assure her that all departments speak to each other.
Earl Russell: My Lords, is my noble kinsman telling us that because the figures are difficult to discover, they really do not matter? Is that argument compatible with the prudent stewardship of public money?
Lord Henley: My Lords, I have not said that at all. I said that the figures which we could produce would be meaningless, and that therefore, there is no point in
1028
producing them. Obviously, we accept that the costs of unemployment, both personal and financial, are great. But as I said earlier and repeat, the figures we may produce would be meaningless.

Judicial Pensions and Retirement Bill [H.L.]
3.33 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to make further provision with respect to the pensions and other benefits payable in respect of service in certain judicial, and related, offices and in certain senior public investigative offices; to amend the law relating to the date on which the holders of certain judicial offices are required to vacate those offices and for purposes connected therewith. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Civil Service (Management Functions) Bill [H.L.]
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, I beg to introduce a Bill to make provision with respect to functions relating to the management of Her Majesty's Home Civil Service; and to make provision about parliamentary procedure in relation to legislation for Northern Ireland making corresponding provision with respect to the Northern Ireland Civil Service. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Earl Howe.)
On Question, Bill read a first time, and to be printed.

Protection of Badgers Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Trade Union and Labour Relations (Consolidation) Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a

1029
manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Tribunals and Inquiries Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
Lord Mishcon: My Lords, the House has agreed to a commitment being discharged in regard to two consolidation Bills. I imagine that it will do this in regard to a third Bill. These three Bills will in due course be submitted to the committee of this House and another place which sits upon consolidation Bills. I believe that the House would wish to know that the committee is looking after, first, a Bill to protect a member of the animal kingdom; secondly, a consolidation measure which one hopes improves the lot of employees; and, thirdly, a Bill which is to improve the lot of the ordinary citizen.
I do not believe that we ought to dismiss these three Bills at Committee stage without at least the good wishes of the House being extended to the joint committee of both Houses which has been newly appointed. We hope that the committee will have an interesting Session dealing with the important function—as I know the noble and learned Lord agrees—of consolidation measures.
The Lord Chancellor: My Lords, I am sure that the House would wish to extend its good wishes to the joint consolidation committee, when appointed. As the noble Lord, Lord Mishcon, will recollect, these Bills were examined in the last Session of Parliament by the then joint consolidation committee. As a result of agreement between the two Houses the Bills do not need to go through that procedure this time. However, that in no way detracts from the message which the noble Lord wishes to send to the joint committee, when appointed. I heartily endorse those wishes.
On Question, Motion agreed to

Pittenweem Harbour Order Confirmation Bill
Read a third time, and passed.

Prisoners and Criminal Proceedings (Scotland) Bill [H.L.]
3.38 p.m.
Lord Fraser of Carmyllie: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 28 [Prints, samples etc in criminal investigations]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 30:
Page 21, line 44, after ("record") insert ("and any copies").
The noble Lord said: This amendment relates to the criminal proceedings part of the Bill, Part II. Clause 28 concerns people who have been arrested and are in custody and from whom prints and other impressions have been taken. Clause 28(3) states:
"The record of any prints or impressions taken under subsection (2) above shall be destroyed immediately following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings".
Amendment No. 30 is a simple amendment. It is a protective amendment. It seeks to ensure that no copies of prints or impressions are left floating around in the prosecutor's offices, in police stations or elsewhere. No doubt the police and the Crown authorities would like on occasions to keep copies of such impressions but I submit that that would be contrary to the presumption of innocence. By destroying not only the record but also any copies of the record the public mind would be put at rest as regards the fact that a record was not being kept by the authorities in a secret place. I beg to move.
Lord Fraser of Carmyllie: I have listened to the noble Lord's comments. As he will be aware, the Interpretation Act provides that words in a statute in the singular include the plural. Clause 28(3) accordingly already requires all records (and therefore all copies) of prints and impressions taken to be destroyed in the appropriate circumstances. The existing law in relation to the destruction of records of fingerprints or impressions taken from persons in detention is contained in Section 2(5) (c) of the Criminal Justice (Scotland) Act 1980. As the Committee is aware, the statutory provision there does not expand on the definition of "record".
I can inform the Committee that under the existing procedures where further copies are made of fingerprints obtained under Section 2 of the 1980 Act,

1031
all copies in the hands of the police are sought out and destroyed when required by subsection (7) of that section.
I would be willing however to table an amendment on Report in order to clarify that the legislation applies to more than one record and on that basis I invite the noble Lord to withdraw his amendment.
Lord Macaulay of Bragar: I am grateful to the Minister for that helpful reply. In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Clause 29 agreed to.
Clause 30 [Transcript of customs interview sufficient evidence]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 31:
Page 23, line 3, leave out subsection (2).
The noble Lord said: This amendment relates to page 23 of the Bill. Clause 30 deals with the admission of interviews between an accused and officers of the Customs and Excise department. Subsection (2) states:
"Subsection (1) above has effect in relation not only to criminal proceedings commenced on or after the date on which this section comes into force but also, if the trial diet is on or after that date, to criminal proceedings commenced before that date".
That provision would appear on the face of it to create a problem. If a trial has started before this Act comes into force but the Act comes into force during the duration of the trial, these provisions might apply. I have tabled the amendment to seek clarification because obviously the governing words are the words,
"to criminal proceedings commenced before that date".
Perhaps now or at a later stage the Government can clarify what the phrase "proceedings commenced" means and when for the purposes of this Act proceedings will be deemed to have commenced. There has had to be resort to the courts and to the Appeal Court on occasions in the past to determine what is meant by that phrase. In a provision of such importance as the one we are discussing it would be helpful to have the phrase covered by an interpretation clause. I beg to move.
The Lord Advocate (Lord Rodger of Earlsferry): The noble Lord has made a technical point. I am quite happy to take the matter away and consider it. As the noble Lord will appreciate, this matter concerns only whether or not one needs evidence in relation to the transcript itself rather than the question of admissibility of the evidence relating to the interview. However, I shall be happy to clarify this matter.
Lord Macaulay of Bragar: I am grateful to the Minister for giving that undertaking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 30 shall stand part of the Bill?
Lord Macaulay of Bragar: I wish to make a point briefly in relation to Clause 30(1). This provision constitutes an extension of the admission of evidence in transcripts. Already such evidence is admissible as
1032
regards interviews between police officers and accused persons. I am not saying that the provision in Clause 30(1) is a dangerous extension but it has been extended to,
"a person commissioned, appointed or authorised under section 6(3) of the Customs and Excise Management Act 1979 and an accused person".
The Law Society has made an objection to that provision. No amendment has been tabled to it but the society is concerned about the circumstances in which any such statements or interviews might occur. I accept the point made by the noble and learned Lord the Lord Advocate that admissibility is a different thing to evidence of what is said but in most cases the police are governed by strict rules as regards cautioning. Usually a representative of the accused is present during the course of an interview. I make these observations now as I wish to ask the Government whether it will be the case that no interviews will take place under the extension of interviewing procedure with its evidential consequences on the part of an officer authorised under the Customs and Excise Management Act without a caution having first been administered and the appropriate common law rules being applied. The accused should also be given the opportunity to have a solicitor present before an interview that is to be recorded takes place.
3.45 p.m.
Lord Rodger of Earlsferry: I can inform the noble Lord that the present position is that all interviews by Customs and Excise officers are conducted under guidelines based on the Scottish Office home and health department's memorandum of guidance. The police use that for similar interviews. Therefore the same principles apply. Before a suspect makes a statement he is formally cautioned and he may have a solicitor or legal representative present during the interview. I repeat that the only matter that is raised by the clause concerns the proof of the interview rather than the interview itself.
Lord Macaulay of Bragar: I suspected that that might be the case. Now that the noble and learned Lord has confirmed it, I hope the fears of the Law Society will be allayed.
Clause 30 agreed to.
Clause 31 [Evidence from abroad through television links in solemn proceedings]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 31A:
Page 23, line 39, leave out ("is in the interests of justice") and insert:

("(i) is in the interests of justice; and

(ii) in the case of an application by the prosecutor, is not unfair to the accused").

The noble and learned Lord said: When a similar clause to Clause 31 was before the Chamber on a previous occasion concern was expressed about the safeguards contained in the provision. In particular it was suggested that there was a need to stress that the interests of the accused should be protected.
On this occasion the noble Lord, Lord Campbell of Alloway, has tabled Amendment No. 32 on the Marshalled List. Having seen that amendment, the

1033
Government have considered the position. The Government are, of course, aware of the need to protect the fundamental right of an accused person to a fair trial. It was precisely with that principle in mind that Clause 31, as it appears in the print of the Bill, includes a provision to the effect that an application for use of the procedure could be granted only if the judge were satisfied that it would be in the interests of justice for the application to be granted. That provision is contained in subsection 3(b) of the proposed new Section 32A.
Nonetheless, we have considered carefully the amendment tabled by the noble Lord, Lord Campbell of Alloway. On reflection we consider that it would be appropriate for the provision to make clear on the face of the statute itself that the judge should not allow the procedure for taking evidence by live television link from abroad to be used if it would be unfair to the accused. We considered that that was already implicit in subsection (3) (b) but we are quite happy to make it explicit on the face of the Bill.
Therefore, the amendment before the Committee takes account of the anxieties expressed by the noble Lord and at the same time recognises—and this is an important matter—that applications under the section may be made either by the prosecutor or by the defence. The drafting of the amendment adds that the specific requirement relating to the protection of the accused applies where the application for use of the procedure is made by the prosecutor. In that way the requirement of protection of the accused is made explicit on the face of the Bill.
I hope that that serves to clarify the position. I beg to move.
Lord Campbell of Alloway: I support the amendment, which affords the extra measure of safeguard in general law under Clause 31 of the Bill, which introduces Section 32A into the Act of 1980. It meets the concern expressed by the noble Lord, Lord Macaulay of Bragar, on 1st May 1990 when this question was last before the House on another Bill, the Law Reform (Miscellaneous Provisions) (Scotland) Bill. Having read the report of that debate I see that the noble Lord, Lord Macaulay, took that point.
The amendment subsumes the spirit of my amendment, Amendment No. 32, which I shall not move. It also bridges the gap of disparity of treatment as between Clause 29, which amends Section 32 of the 1980 Act on the admissibility of audio and video records which includes in substance that safeguard and Clause 31 which, without the amendment of my noble and learned friend the Lord Advocate, would not.
I am grateful to my noble and learned friend the Lord Advocate and, in particular, to parliamentary counsel for having taken the matter on board at such short notice and for having produced such an excellent result, a much improved form of drafting to my drafting of Amendment No. 32.
In the meantime I hope that the amendment moved by my noble and learned friend may commend itself to the Committee without prejudice to the merits of Amendment No. 33, which I shall move in due course.
1034
On Question, amendment agreed to.
[Amendment No. 32 not moved.]
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 33:
Page 23, line 44, at end insert:
("(5) This section shall not apply in proceedings brought against any person under the War Crimes Act 1991.").
The noble Lord said: The amendment is concerned with an amendment of the procedural law of Scotland to admit live television into the courtroom in criminal proceedings under the 1991 Act. To that extension of procedural law there is no general objection. However, there is the most serious objection to the use of that type and quality of evidence in proceedings under the War Crimes Act at all events, and in particular for any purpose connected with identification. I remind the Committee that on a free vote on 1st May 1990 your Lordships so decided on the fifth day of the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill by a majority in excess of two to one against the Government.
The debate on 1st May 1990 (as reported in Vol. 518, cols. 933–960 of Hansard) was conducted on the assumption, as appears from the report, that war crimes trials would ensue, both in Scotland and in England, an assumption which remains valid today in view of the War Crimes Act.
Today, on this side of the Chamber, we labour under a two-line Whip although no other party has any whip. As a result, like last Tuesday, Members of the Committee on this side of the Chamber will not have heard the argument on the merits of the amendment. On Tuesday, noble Lords obeyed the Government Whip and Amendment No. 3 was defeated. However, as appears from Hansard, the merits of the argument conducted on the Floor of the Chamber were unanswerable and were unanswered.
Today, very few noble Lords on this side of the Chamber are present to hear the argument as there is an important matter proceeding elsewhere. Therefore, it is all but inevitable, one supposes, that the amendment, although previously accepted by your Lordships, will be lost on the Whip. However, I seriously question whether matters concerning the procedural law of Scotland in criminal proceedings are a proper matter for political controversy.
I also question whether the statutory imposition on Scotland of Clause 31, unamended by the amendment, is for the "better Administration of Justice" in Scotland in a war crimes trial. Those words are the savings proviso of Article XIX of the Act of Union which enables our Parliament to impose regulation upon Scotland. If, in the opinion of the Committee, Clause 31 unamended is not for the better ordering of the administration of justice in Scotland then, without that savings proviso of Article XIX, it is unconstitutional and Amendment No. 33 should be accepted.
However, the Committee is asked by the Government to assume that Clause 31 as it stands is for the better ordering of the administration of justice in a war crimes trial in Scotland; so to accept the rectitude of its statutory imposition on Scotland,

1035
without excluding its use in a war crimes trial, without regard to the merits of any debate; and so to reject this amendment.
In a matter which ought to be wholly devoid of political controversy, especially in view of the somewhat strained relationship between Scotland and England at this time, the Committee may well think that, apart from the constitutional aspect of this statutory imposition, it would have been wise or concessive to have afforded a free vote. A formal request to that effect has been refused. I am advised that it is proper and in order for me to draw the Committee's attention to this matter and, even at this late stage, on the Floor of this Committee I respectfully ask the Government, which I support, to think again and to withdraw the Whip.
On 1st May 1990 the Government introduced both Clauses 29 and 31 of this Bill in two parts of Amendment No. 292 to the Law Reform (Miscellaneous Provisions) (Scotland) Bill. The substance of the amendment which I move today was included in Amendment No. 293ZA, drafted by the noble and learned Lord, Lord Wilberforce, who is in his place. In fact the amendment was carried against the Government by 137 votes to 62 votes.
My noble and learned friend Lord Fraser of Carmyllie said (at cols. 956 and 957 of Hansard) that he wished to have what is now Clause 31 if there were to be a war crimes prosecution. He also said that a judge in Scotland would exclude the evidence or refuse to allow the TV link for the purpose of identification. If such be the case, it would be most interesting for the Committee to know for what other purpose such evidence is to be used in these trials and whether the Government would accept an amendment excluding use under Clause 31 for the purposes of identification in war crimes trials. Perhaps my noble and learned friend the Lord Advocate may care to deal with those matters.
It is accepted that under Article XIX of the Act of Union, Scotland retains its substantive and procedural laws in criminal proceedings indigenous to Scotland which differ from those in England, subject to statutory imposition only for the better administration of justice in Scotland. But it is one of the admitted purposes of Clause 31 that it should be used in war crimes trials, and a statutory imposition to be used for such purpose is wholly unacceptable as an aid to conviction. That could assuredly not afford the better administration of justice in Scotland or anywhere else in the world. It is without the Constitution.
In the debate on 1st May 1990 the noble Lord, Lord Macaulay of Bragar, made an important contribution (cols. 940 to 943), as did the noble and learned Lord, Lord Morton of Shuna. The essence of their argument was put in short form by the noble and learned Lord, Lord Wilberforce, who limited his observations to what is now Clause 31 of this Bill, excluding Clause 29 which was included in the first part of government Amendment No. 292.
In conclusion, I wish to refer the Committee to two short passages in the speech of the noble and learned Lord, Lord Wilberforce (at cols. 947 and 948). In a sense, it says it all. The merits and substance of the
1036
argument are exactly the same today as they were when these words were said. The noble and learned Lord said:
"The Committee has to consider whether the changes proposed in Amendment No. 292 are appropriate to be made in the context of a war crimes trial. The Committee will have to decide that matter on the basis of two simple considerations. First, there is the argument about changing the rules after the offence has been committed… It has been admitted that those provisions are included in order to deal with war crimes. Many Members of the Committee may feel that it is not right to change the rules at this time. These criminals should he tried under the rules which existed at the time when they committed their offence. I say no more about it…
"The other point that requires a few more words is whether the changes are appropriate to be made in the context in which we are considering them".—[Official Report, 1/5/90; col. 948.]
He then referred to the notable contribution of the noble Lord, Lord Macaulay of Bragar, and concluded:
"We cannot do justice to an accused charged with a war crime committed 50 years ago in a remote country by permitting evidence to be given in distant countries, possibly under the control of a foreign official, possibly of a foreign judge, simply because it is relayed by way of television to the court".—[col. 949.]
The noble Lord, Lord Callaghan, who spoke later in the debate, found the argument "absolutely irrefutable". The noble Lord, Lord Hutchinson, as the experienced advocate that he is, described the situation as "totally grotesque". I beg to move.
4 p.m.
Lord Wilberforce: I should like briefly to support the amendment moved so well by the noble Lord. Lord Campbell of Alloway. His speech said it all. On 1st May 1990 this Chamber decided by a large majority that a clause similar to this one, allowing a television link, should not be applicable to war crimes trials.
It is perfectly well appreciated that in Scotland there may be need for a clause in the form of Clause 31—the new Section 32A. A similar clause has been introduced in England and the argument is: if England has it, why should not Scotland have it too? There is no dispute about that. The dispute is about whether it is appropriate that such a clause and such a power should be capable of being used in relation to war crimes trials.
Perhaps I may straightaway dispose of one argument. It is said that England has this clause unmodified; why should not Scotland have the same? With respect, that is a completely invalid argument. The clause was introduced into English law in 1988. That was before any question of war crimes trials had come up. The legislation was passed in 1991. It would not have been possible or appropriate to introduce into the English legislation a disapplication in the case of war crimes. But contrary to that, in Scotland this clause arises when war crimes trials are over the horizon or are actually being conducted. It is necessary to face squarely here and now the question of whether it is right that the provision should be capable of being applied in a war crimes context. This

1037
Chamber decided to the contrary in 1990. With great respect I submit to noble Lords that in all honesty and consistency the same course ought now to be taken.
I shall not go over the arguments on the merits. They are well in the minds of noble Lords. The Committee has been reminded of some of them by the noble Lord, Lord Campbell of Alloway. I shall summarise the basic points. The exemption suggested by the noble Lord, Lord Campbell of Alloway, rests on the essential and constitutional right of a person accused of a criminal charge to be confronted with his accusers. That is a basic right. He has a basic right to see his accusers face to face. Trial by television link is directly contrary to that basic right.
The logistic difficulties are absolutely enormous. Everyone has them in mind. They have been underlined time after time. For example, let us consider a case with possibly 40 witnesses scattered all over the world, some of whom, all of whom or one of whom it is proposed should be allowed to give evidence by television link. The logistic difficulties are insurmountable. One has only to consider the position of the defendant. Is he to be allowed to have his witnesses brought into the court by television link? How is he to do that in the face of the prosecution evidence?
The noble Lord, Lord Hutchinson of Lullington, raised another point in the previous debate. What about a witness whom one wishes to be recalled? That is a situation which often occurs. The witness may be in Estonia. The television set may have been removed. How will one get him back to the television and cross-examine again on further points that may arise during the trial?
All those points are extremely serious. I take it that the answer from the Government Bench is to leave the matter to the judge. One has to make an application to the judge and the judge will not allow evidence by television link to be given if he believes that justice cannot be done. However, that argument was completely destroyed by the noble and learned Lord, Lord Morton of Shuna, on the last occasion. I speak with the appropriate deference of an English lawyer, but the noble and learned Lord told us the Scottish position at first hand. In Scotland one does not have witness statements as one does in this country. In this country one has statements by witnesses on either side in writing, signed by the witness and exchanged between the parties. In Scotland the judge does not see such statements. He has the indictment and nothing else. Therefore, how can one ask a judge, who is without knowledge of the whole state of the evidence, to rule on the question whether there should be one television link or 40 television links? The argument of leaving it to the judge simply does not wash.
One has to face the fact that we are dealing with war crimes, with an attempt to convict someone on evidence that is 50 years old, relating to a thousand miles away and based on a number of witnesses whose memories are very poor. We have to take warnings from the examples that are before us. The Canadian case—the only war crimes case which has occurred in that country—has completely broken down in the face
1038
of the inadequacy of the evidence. The Demjanjuk case gives rise to greater disquiet every time one considers it. Australia is having the greatest difficulty in getting its trial on its feet. One has only to recall other civil cases—one concerning a noble Member of this House; and another pending in Scotland on which the judge has gone to the Baltic States in order to try to take evidence—to see how incredibly difficult and inconsistent all the evidence is. That is inherent in the facts of the case. One cannot get away from it. It means that it is totally impossible to try to apply this untried procedure to a case of war crimes.
It is an untried procedure introduced into English law and to be brought into operation gradually in suitable cases in respect of children's evidence, and possibly in fraud cases as recommended by the noble and learned Lord, Lord Roskill. It is untried procedure in criminal cases. It is completely untried in relation to war crimes trials and ought not to be applied to them.
I appeal to the Committee to retain the decision that was taken in May 1990 and to add the amendment to the clause. It would give the Scottish lawyers what they wish. It would give them the benefit of the clause for general purposes, for children, fraud and so on, but would make it clear that it is not to be applied in the case of war crimes. I beg to support the amendment.
4.15 p.m.
Lord Macaulay of Bragar: I rise to support the observations made by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Wilberforce. It goes without saying that in so doing I have not changed my mind since 1990. At the outset perhaps I may say that on this side of the Chamber there is a free vote on the matter because it arises from consideration of the principle of prosecuting war crimes. If there is a free vote on that issue, it follows logically and in fairness to all that there should be a vote on subsidiary issues relating to possible prosecution.
If there is ever to be a trial of a war criminal, the likelihood is—I say it, I hope, without prejudicing anyone's position—that it will be in Scotland. One would hope that if the alleged criminal is in Scotland, he will be tried in Scotland and not shipped off to some other part of the country where the Scottish rules of procedure might not apply.
Fairness is the cornerstone of justice. If we erode that principle of justice we head for severe and serious trouble regarding not only the concept of justice, but the rights of the individual. As the noble and learned Lord, Lord Wilberforce, said, we depart, of necessity perhaps, from having the accused confronting his accusers. The accused cannot go into the country where he has been accused of having killed people 50 years ago because the likelihood is that he would not get out of that country again. But to be deprived of that right is limitation enough; we shall have to be content with second best evidence.
The noble Lord, Lord Campbell of Alloway, reminded us of the observations of the noble and learned Lord, Lord Fraser of Carmyllie, about

1039
identification. I echo the words of the noble Lord, Lord Campbell. If the evidence is not about identification of an alleged war criminal what on earth is it about? Are we to have the ludicrous position of a witness saying, "I was at the graveside. I saw the man with the rifle. He ordered his troops to shoot 50 people. They shot. He fired as well. All the people were killed. The grave was filled in". (That is the sad picture that has been depicted over the years of the way such things happen.) Are we to go through this charade: that at the point at which the prosecutor in any other case would say to the witness, "Can you identify the man who was in charge of that brigade? Can you identify the man who gave the order and indeed joined in shooting those poor people?" the whole proceedings come to a halt? If that is so, what is the use of the evidence? It is evidence in a vacuum.
If that was the Government's view in 1990, why is identification not made an exception in the very acceptable amendment of the noble and learned Lord, Lord Rodger? It is not only the accused who will be identified; as has been pointed out, there will be the witnesses in his support. What will happen—it is a dangerous matter—is that a witness will not be shown a possible accused. He may be shown a photograph of an accused which was taken 40 years ago. That will be shown on a television link to some old person miles away. It is dangerous enough in court to ask people to identify persons by ancient photographs. How much more dangerous will it be to present a photograph on a television screen and to ask the witness to look at a photograph of a man 40 or 50 years younger than he is now?
Difficulties abound in this field. We have the current case abroad of the gentleman who was named Ivan the Terrible. He was convicted not as a result of evidence given by television link but as a result of confrontation with the witnesses. They swore on oath, no doubt doing the best that they could, that the man in the court whom they could see face to face was the man known as Ivan the Terrible. It was a flesh to flesh, eyeball to eyeball positive identification.
What has since happened? According to the defence in the appeal now being run there may have been another man who resembled the accused and he is being said to be Ivan the Terrible. If that is true a gross injustice has been done to the accused. Therefore, we should be most careful not to introduce into the court procedure methods of obtaining evidence which run severe risks of causing unfairness to the accused. It does not matter whether the case involves a breach of the peace or a war crime we; return to the issue of fairness. That is why I support the noble Lord, Lord Campbell of Alloway, in his amendment.
In a recent civil case in Scotland the judge went with counsel to a foreign part to take evidence. The client was left in Edinburgh with a telephone link. Whether that was evidentially successful we do not know but at least it presents an alternative to the taking of evidence by TV links. I do not know the details of the way in which the evidence is taken or the rights of cross-examination and the law that will apply. We have covered that course a few times. However, I say
1040
that the amendment is in the interests of justice to the state and to any individual who comes before the courts in Scotland. Accordingly, I support it.
Baroness Phillips: As a layman perhaps some of the noble and learned Lords will clear up a matter for me. Why should the provision relate only to war crimes? If a murderer is brought before a court will he be able to say that certain evidence cannot be introduced because he is claiming exemption under a certain Act? The provision will soon be extended to almost every crime and an accused might say, "No, you cannot try me because I am this and I am that". Surely the issue is being complicated unnecessarily.
I cannot recall any war criminals being tried in Scotland. There may be a lot of them lurking about somewhere but the matter is purely hypothetical. The noble Lord is merely following up an issue about which he feels strongly. I am sure that with the usual eloquence and the ability to change the facts, in which members of the legal profession seem to be trained, learned Members of the Committee will convince me that a different principle is not introduced. However, I believe that it does bring in a different principle because if one can claim an exemption under this Bill by reference to a particular Act what is to stop anyone having several Acts included and also claiming exemption? Luckily Members of the Committee have a free vote. I remain completely unrepentant about war criminals and I am sorry to say that I shall vote against the amendment. However, I should like an explanation on that point of law.
Lord Mackay of Ardbrecknish: Perhaps I too as a layman may intervene in the debate which naturally has been dominated by some noble and learned Lords, as was Tuesday's Committee stage of the Bill. I wish to make a few points. First, I was not in this Chamber when the War Crimes Bill came here for the first time. If I had been I should have agreed with the majority and voted against the Bill, asking Members in another place to think again. They thought again and reached the same conclusion; that they wished the Bill to pass. In my view the proper course was to allow them, as Members of the elected Chamber, to have their way. They had been asked to think again on what in my view were sensible grounds. However, for other reasons they wished to have the Bill on the statute book and proceeded along those lines.
I have more than a slight suspicion that today we are rehearsing the debates on the War Crimes Bill and are not debating and discussing the merits or demerits of television links. It appears to me that if the Members of the Committee who have spoken are right about the demerits of television links those demerits are right for all criminal law and not for this particular law. As a result of some small experience that I had on such an issue some years ago I am convinced that many court procedures try to ignore modern technology, whether it is tape recordings or videos. We have moved forward a little on that but not as much as we should have done. However, we should not ignore the use of television links. They may be especially important in fraud trials and in some drug trials when international evidence is required.

1041
I believe that rather than have a narrow argument about whether the War Crimes Act should be excluded from the provisions of the clause we should argue the general principle of whether it is right to have television links. We should not return to arguing the merits and demerits of the War Crimes Bill as, I am afraid to say, my noble friend Lord Campbell has done. The noble Lord, Lord Macaulay, said that it does not matter whether one is concerned with the breach of the peace or a war crime. If that is what he believes about using television links we should be invited to oppose the whole principle—
Lord Macaulay of Bragar: I made that observation in the context of the question of fairness.
Lord Mackay of Ardbrecknish: I appreciate that the issue was fairness but I should have thought it related to whether television links were fair. I believe that Amendment No. 31A, which we have accepted, includes sufficient qualification to enable the court to hear an argument if, say, the defence in a war crimes trial or any other trial believes that it would not be in the interests of justice or fair to the accused. A defence counsel would put that argument before the court and if he won it the judge would be duty bound not to use the television link procedure.
That qualification, which we have passed and which is wise, should enable the Committee to pass Clause 31 without adding the amendment that we are now invited to consider. If we do not do so and agree to Amendment No. 33 we shall be rehearsing an argument about the War Crimes Bill. We shall not be looking at the merits and demerits of television being used in court. We should not do so in this Chamber because we have already done so in debate and in returning the War Crimes Bill to another place—
Lord Campbell of Alloway: The noble Lord misunderstands the point. I accept unequivocally that war crimes trials take place. That is the law of the land. Accepting that they take place I am concerned only to ensure that the accused have a fair trial. I am not going over the old argument about whether war crimes trials should take place, and I do not challenge the Government's decision. All I am doing is to explore with Members of the Committee how we can have fair trials. I suggest that it is impossible to have a fair trial by television link because 50 years after the event there is no cross-examination of an aged witness before the jury. This is quite another question.
4.30 p.m.
Lord Mackay of Ardbrecknish: I take on board the point made by my noble friend. However, there could easily be other trials—fraud or drug trials —which involve elderly witnesses. In those cases exactly the same arguments could be paraded: that television may not be the best link. In a modern world I believe that television is probably quite adequate as long as the court and defence counsel are agreed and believe that it is fair to the accused to use that procedure.
Many of the arguments which I have heard, which I would have agreed with on the day when the War
1042
Crimes Bill originally came before your Lordships' House, apply whether the witness is in court or whether he is at the other end of a television link. Therefore, I believe that when the Division comes, I shall resist the temptation to replay the War Crimes Bill and shall support the Government.
Earl Russell: The noble Lord asked us a very fair question which deserves an answer. He asked what is the connection between war crimes and television links. As I see it, it is in one word: namely, identification. Both matters involve difficulties as regards identification.
The noble Baroness, Lady Phillips, asked what is distinctive about war crimes: it is that by definition they must have taken place not less than 47 years ago. Therefore, they have inherent difficulties.
I agree with the noble Lord, Lord Campbell of Alloway. We have accepted the verdict of another place. However, it is true also that it is usually more difficult to identify a person on a film than it is in the flesh. There are many distinctive movements and appearances which one does not pick up nearly as easily on film as one does when one sees the person in the flesh. Therefore, here we have not one difficulty as regards identification but two difficulties. It is the argument in favour of the amendment that the one difficulty compounds the other and that although we may accept one difficulty, accepting both of them together is a work of supererogation.
I add only one point. There is no such thing as a crime so terrible that an innocent person should be convicted of it.
Lady Saltoun of Abernethy: As we have already heard from the noble Lord, Lord Campbell of Alloway, Clause 31 is word for word the same as subsection (2) of the clause which was introduced in Committee into the Law Reform (Miscellaneous Provisions) (Scotland) Bill two years ago. A similar amendment to that clause was won in a Division on that occasion. At a later stage of the Bill's passage through Parliament the clause, as amended, was dropped.
It certainly appears that the Government may have considered that, having been amended, the clause could not serve their purpose although there is opposition to it from, among others, the Law Society. The Law Society feels that it does not fit in with the adversarial system and it is uncertain as to the ability of juries to make an assessment of the demeanour of a witness when evidence is taken by television link. It feels that miscarriages of justice may result. Those miscarriages of justice would not only be in war crimes trials but would be in other criminal trials.
The noble Lords, Lord Macaulay of Bragar and Lord Carmichael of Kelvingrove, have given notice of their intention to oppose the Question That Clause 31 stand part of the Bill. The noble Lord, Lord Macaulay, shakes his head but I know that the Law Society in Scotland is not happy with that clause.
If suspects in war crimes trials are to be disadvantaged by the use of a form of evidence which many do not consider good enough, particularly on questions of identification, for other suspected

1043
criminals, there must be a greater danger of wrongful convictions taking place. The more heinous the crime, the more important it is—at least, that is how it seems to me—that everything possible should be done to ensure that a suspect gets a fair trial. The crimes in these cases are particularly heinous; to be wrongly convicted of being a war criminal would be a rather different matter from being wrongly convicted of, perhaps, shoplifting or a breach of the peace. Therefore, we should be more rather than less strict over the rules of evidence. The face of British justice has been looking rather tarnished lately, as several cases of wrongful conviction have come to light, most recently the case of Judith Ward. Quite apart from the morality of it, is it really wise to risk further wrongful convictions eroding still further our reputation, and this time in Scotland?
Yet the Government would appear to be determined to secure a conviction, even a wrongful conviction, at all costs. The argument—I do not know whether the noble and learned Lord the Lord Advocate will use it—that we are trying to thwart the will of the elected Chamber is surely flawed in the wake of the dissolution of the former Soviet Union. Where it is possible to travel freely to and from former eastern bloc countries, it must be possible even if more expensive and inconvenient, to arrange for witnesses to travel to Scotland to give evidence. And I remind the Committee that in February the Court of Session sat in Vilnius in order to take evidence from Lithuanian nationals.
The noble and learned Lord, Lord Wilberforce, has already pointed out that evidence, taken in a case still in progress in Scotland, from witnesses who were under duress was rescinded when the witnesses were examined face to face and were no longer under pressure. I wonder whether that would have happened had the second examination been by television link.
In the event that this amendment is carried, I believe that the Government are contemplating taking war crimes suspects resident in Scotland to England to be tried where video evidence is accepted. I really must advise them not to do so. It may not be technically in contravention of Article 19 of the Treaty of Union, but it seems to me that to drag possibly innocent residents of Scotland to England to be tried, when there is no other reason for doing so, in order to be reasonably sure of a conviction, which could not have been obtained under Scottish law, contravenes the spirit of the treaty, and that is how it will be seen. In the present political climate in Scotland, I believe that to do so would be unwise.
Finally, I must add that it is not helpful to solving the constitutional problems in Scotland for the Government to put a heavy Whip on a Committee stage of a Bill which is about matters which are not contentious in party political terms so that sensible amendments to a Scottish Bill are defeated by hordes of Peers tramping through the government lobby without, in many cases, the foggiest idea of what they are voting about.
Lord Hylton: I suggest that the Government have a duty to explain to the Committee what safeguards
1044
there will he and how they will work out in practice both in ordinary cases and a fortiori in war crimes cases.
The matter of cross-questioning has already been mentioned this afternoon and I hope that the Government will have a lot to say about that. I notice that the clause mentions only the giving of evidence and says nothing about cross-questioning.
I would mention also the question of definition of TV pictures and whether or not they are adequate. There is also the matter of sound quality to consider. Who decides whether those factors are acceptable? We must remember that it may be a matter of transmitting in both directions; that is, from the foreign country to Scotland and from Scotland to the foreign country.
Finally, I would mention the matter of interpreters and interpretations for witnesses who may have an imperfect command and understanding of the English language. What provision will there be for interpretation and how will it he controlled?
Lord Grimond: I rise to support the amendment. I need do so only briefly due to the excellent speech of the noble Lord, Lord Campbell of Alloway. He laid out arguments which have often been laid before us previously, but which nevertheless are relevant at this time.
The amendment applies only to war crimes. It may be that we are departing too far from the old principle of confrontation in court and the examination of the demeanour of those who give evidence. But that is not the question before us at this time. The Committee may feel that the matter was decided during the course of the war crimes debate and the eventual passing of the Act, because it was decided that this type of evidence should not be available in war crimes trials. It may be felt therefore that it is anomalous to reintroduce it in this curious form today.
Confrontation is extremely important in all trials but particularly in matters of identification in trials where the offences were committed over 50 years ago and in circumstances where it is difficult to find out exactly what happened. That seems to me to be the one overwhelming argument for objecting to television in those cases.
I should like to emphasise what was said by the noble Lord, Lord Macaulay of Bragar, regarding a recent trial for libel in Scotland. In that case the judge went to a Baltic state to take evidence because he required to see and hear for himself the demeanour and language—no doubt translated—of those who were giving evidence. A case of libel is far less important than would be a war crimes case. But in that situation it was thought possible and desirable for a judge to go to the Baltic state to take evidence. I hope that the Committee will not depart from the principle laid down in more serious cases that the evidence should not be available through television alone.
Lord Gridley: Perhaps I may make one or two comments on what I have just heard. I was in total agreement with the speaker from the Cross Benches. Whatever we do in this connection we must be extremely careful to ensure that the evidence we

1045
obtain in connection with bringing criminal prosecutions is sufficient. The Government have a bounden duty to see that it is satisfactory and safeguarded in every way.
I form that judgment for the simple reason that during the last war I was in a country that was taken over by the secret police of the Japanese, whose rule lasted for four-and-a-half years. During that time I learnt the difference between the kind of rule exhibited there and the type of rule which exists in the House of Lords and our Parliament in this country generally.
One was taken in for questioning—interrogation —by the people who operated the secret police. They adopted the attitude that they were absolutely determined to obtain an admission of one's guilt. That was the situation under which that country laboured for all those years. When the person being interrogated did not give the answers required, he was tortured until either he passed out or confessed. There is one gentleman in this House who suffered in that way.
In this country a person is taken in for questioning and an investigation is held. If the evidence is sufficient to make us believe that the man has committed a crime, then he is charged and eventually found guilty. But in that other place one was forced to plead guilty under the most frightful torture; one made an admission to get them to stop.
We returned to that country after that situation had operated for a number of years and found many people in opposition. The people who had made false admissions when they were not guilty were opposing those who were trying to run the country at the time. We are saying that we will bring people from those areas to give evidence after all those years and bearing in mind the circumstances under which that evidence was obtained. Unless satisfactory evidence is produced by Her Majesty's Government, we must hear a great deal more of what the Government intend to do to ensure that justice is done, bearing in mind the horrible circumstances that existed at that time. The danger is that justice may not be done when we try to administer justice ourselves after all these years.
4.45 p.m.
Lord Jauncey of Tullichettle: Perhaps I may make one practical point. It is widely recognised that dock identification is unsatisfactory. By "dock indentification" I mean the identification by a witness of an accused person in the dock for the first time since the crime was committed. In those circumstances, in Scotland and probably in England, it is the practice, where possible, to hold identification parades at some time between the commission of the offence and the trial of the accused.
War crimes trials are special in two respects. First, it would seem almost certain that there will have been no opportunity for an identification parade to take place to enable the witness to identify the accused prior to seeing the person on television. Secondly, and almost more important, the immense passage of time which is likely to have elapsed since the witness last saw the accused means that enormous changes may
1046
have taken place in the appearance of the accused. It would be difficult enough for a witness in the witness box to identify the accused; it would be doubly difficult if he was asked to identify the person via the television.
Those of us who have presided in the High Court in Glasgow will have seen witnesses brought in to identify an accused for the first time. They gaze round the court and their eye alights upon two burly policeman and one small man sitting in the dock. "That's him", they say. Occasionally they may identify a member of the public or a juror. There are considerable difficulties involved. The passage of time and the lack of opportunity for an identification parade makes war crimes different from the normal run of the mill trial.
The Earl of Selkirk: I make only two observations on this matter. First, Scotland has long been—for at least 300 years—extremely sensitive on the question of evidence. That is laid down clearly by our institutes. I need mention only one example: even if one judge is deeply impressed with one witness, that is not enough; there must be two witnesses on all occasions. That has become fundamentally the rule that applies.
I do not know what the opinion of the Committee is in regard to television. I wonder whether anyone has listened to a set and found that they cannot hear a word or whether they have found it difficult to hear arguments advanced on television. It may be that if one goes to a strange island or a different part of the world the television may not be as good as ours. What are we to do then? The television people should show that they can transmit evidence with absolute clarity and without the slightest dubiety as to what it stands for. This is not the stage for that to happen. There is another stage to be taken. I am very glad to have listened to what the noble and learned Lord, Lord Wilberforce, and my noble friend said today. We should not begin this process until we are better prepared. I support the amendment.
Lord Houghton of Sowerby: It is with great diffidence that I enter this debate. I took a very prominent part in the proceedings of this House in connection with the main War Crimes Bill. I remind the Committee that we tried to resist the main mischief not only once, but twice. We did not accept the rethinking of the Government and another place after the first round. We objected to their verdict the second time. The main mischief is really the original War Crimes Bill. We did our best in this House to stop it. It should be remembered that we tried to stop the main mischief over the whole field of war crimes legislation as it is now enacted in the War Crimes Act.
We lost the main battle. The present matter is incidental to the mischief that we were unable to stop. The noble Lord, Lord Campbell of Alloway, reminded us that we stopped the 1990 Bill as it applied to English trials of war crimes. Now the Government are resisting the application to Scotland of the exclusion that we decided for England.
Lord Campbell of Alloway: I am grateful to the noble Lord for giving way. Perhaps I may put the

1047
record straight. I am sure that the noble Lord will accept that it was a Scottish Bill and not an English one. I say that just to keep the record straight. It was the Law Reform (Miscellaneous Provisions) (Scotland) Bill 1990 and not an English Bill.
Lord Houghton of Sowerby: I am much obliged to the noble Lord. It is an extremely complicated matter as between English and Scottish law. The point is that underlying what the Government are now doing is their desire to pursue an individual case in Scotland. They do not feel that the way is clear at present to use television evidence which they have sought and possibly in some form already obtained. Therefore, behind this particular case lies the politics of the matter.
The War Crimes Act is designed not for fair trials, but for convictions. One must bear in mind the background to this matter. I shall not enlarge on it. There is no room here to talk about fair trials. I do not believe that there ever will be a fair trial in the circumstances of the mischief enacted not only here but in other countries as well. However, no conviction has yet been achieved in comparable circumstances to those concerning our War Crimes Act. Your Lordships' Committee should not be swayed by the Government's desire to facilitate a prosecution which at the present moment they feel they cannot make. Rather than give up the prosecution voluntarily they are prepared to go through the tedious process involving time and trouble in bringing a trial. No doubt they will be relieved at the end of the day for a jury to acquit the accused.
One must consider what is happening in Canada at the present time where a jury has acquitted an accused of all charges. But the case has not been finished with. The way in which accused persons are being held under the threat of ultimate trial and destruction is terrifying. Australia has got nowhere and neither have we. We are not going to get anywhere. Let us be candid about it: it is the forces of Jewish politics and the abhorrence of the world at the crimes which were committed which stand in the way of looking at these matters dispassionately and in the interests of what we believe to be justice. We would never permit a similar situation to arise for any other set of crimes other than those which are involved in the present war crimes legislation.
It is a tragic affair from beginning to end. It is time that we faced the truth of what cannot be done. My conclusion is that the members of this Committee should honour their previous decision and decide that they are not prepared to facilitate the use of this kind of evidence in a war crimes trial. We should not give the Government any encouragement to embark on a trial of this nature in Scotland.
The Earl of Perth: What worries me about the debate is that, quite apart from the legal side, I see questions arising on the constitutional side. That is a very serious matter. I have heard several Members of the Committee refer to what is happening as being a challenge to the Act of Union. That becomes much more serious when I learn that there is to be a two-line Whip. Therefore it is almost certain that it will be the
1048
English vote which will overrule—if it does overrule, and there is a good chance that it will not—the Act of Union and force us to do something which we in our wisdom believe to be wrong.
The Law Society of Scotland has come out quite firmly against the proposal. What is the good of all our judgments and the opinion of Scotland if they can be defeated by the manoeuvre of having a two-line Whip and getting the various English Peers to take part? I hope that this issue will be considered very seriously. Added to the weight of all the arguments which have been heard from the legal and humanitarian points of view and many others, I beg the Government to resist the temptation and to call off, as was suggested, the two-line Whip and remember that this matter is of real importance to Scotland.
Lord Harris of Greenwich: I would not worry myself so much about the English vote, if it can be so described, if the English vote had been sitting in this Chamber while this debate was taking place. The reality of the matter is that when the Division Bells ring scores of Peers who have not heard this debate will come into the Chamber and vote. They will no doubt secure for the Government the majority that they want. I have been a Member of this House now for approaching 20 years. I cannot recall any occasion concerning an issue of high legal significance of the kind we are debating today when the Opposition parties have said that they have no Whip on the issue, but the Government have. It seems to me that of all the issues on which there should not be a party vote it is the matter which we are debating today.
I do not propose to go over all our debates on the War Crimes Act. My view then was that it was a profound mistake; and, as has been made quite clear, the issue that we are debating today is quite different. We are talking about whether the novel procedure of television links should be introduced in cases that will turn primarily on evidence of identification, and whether the new procedure should be applied in cases where defendants will be defending themselves against acts that they are alleged to have committed 50 years ago. I repeat that it seems a profound error that this very important issue is being treated in this way by the Government Whips. I very much hope that even at this stage we shall be told that the Government will not insist on a party vote on this matter.
5 p.m.
Lord Thomas of Gwydir: I had not intended to participate in this debate; but, in the light of some of the remarks that have been made, I should like to say just a few words. First, I congratulate my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Wilberforce, on the admirable way in which they have opened this debate and supported the amendment. I am sure that we all agree that the War Crimes Act will almost inevitably prove unjust in cases of identification. I have no doubt that after a passage of 50 years, it will be almost impossible justly to identify a culprit in a court today. For that reason, I believe that this House very properly objected to the War Crimes Act. Nevertheless, despite the fact that we

1049
held that view, we have been overborne by the decision of the Commons, and it is a decision that we accept. Therefore, the position is that the War Crimes Act obtains today and we have constitutionally accepted it.
The question is this: is it right that in this Bill for Scotland there should be television-link evidence? I think that the general view will be yes. The next question is: is it right that television-link evidence should be used in a war crimes trial? I think that there is no doubt that television-link evidence in a war crimes trial would be both unfair to the accused and would not be in the interests of justice. Therefore, in my view, the amendment that was moved by my noble and learned friend meets the whole of our worry. I have no doubt that, if it was a question of identification in a war crimes trial, those defending would go before the court and suggest that such evidence could not be in the interests of justice, and that it would be unfair to the accused.
The protection that would be available in a war crimes case is already written into the Bill. I remind the Committee that under Clause 31 the court must also be satisfied as to the arrangements for the giving of evidence by a witness. For that reason, I believe that there is already sufficient protection, and I shall support the Government.
Lord Rodger of Earlsferry: We have had an interesting discussion on the amendment that was tabled by the noble Lord, Lord Campbell of Alloway. In replying to the debate, I begin by repeating that, as the Committee will be aware, provision along the lines provided in Clause 31 already exists in England and Wales under the Criminal Justice Act 1988. That provision was brought into force for England and Wales in November last year in respect of cases of murder, manslaughter, or serious and complex fraud. I must remind the Committee that at no stage in, for example, the passage of the Criminal Justice Bill, which became the Criminal Justice Act 1991, was any attempt made either by this House or anywhere else to disapply the provisions of that Act to war crimes trials that might take place in England.
I do not understand that most Members of the Committee can have any basic objection to the principles behind Clause 31. It is surely right that we should take account of and use all the technological developments that occur in order to ensure that the courts in Scotland and England have available to them the best methods of obtaining evidence. This is simply one of a number of provisions in this Bill and in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 that are designed to bring the advantages of new technology to the courts in Scotland.
I repeat the important point that Clause 31 is of general application to solemn proceedings. The effect of Amendment No. 33 would be to create a special evidential regime for war crimes trials. If the amendment were accepted, in those proceedings—and only in those proceedings—evidence by live television link from abroad would not be possible. That would
1050
be in contrast to what happens in other proceedings, such as in murder cases, if Clause 31 were to be brought into effect.
We believe that it is wrong in principle to create a different evidential regime for proceedings under the War Crimes Act. In that respect, I fully endorse what the noble Baroness, Lady Phillips, has said. If it is the case for war crimes, why not for all sorts of other crimes also? It is important to remember how limited the scope of the War Crimes Act is. That Act established jurisdiction over certain persons who would not otherwise have been susceptible to the jurisdiction of United Kingdom courts in respect of murder, culpable homicide or manslaughter, contrary to the laws and customs of war. I stress that the important purpose of that Act was to establish the courts' jurisdiction. As several members of the Committee have said, that measure was enacted in the face of your Lordships' opposition; but, as has been accepted by your Lordships, it was enacted in accordance with established constitutional procedures and it is right that we should respect and not in any way seek to frustrate the law that is now on the statute book.
I do not wish to open up a discussion of the general merits of the War Crimes Act or of war crimes trials in general. I simply advise the Committee that this matter should be considered as one of principle. What does principle suggest about the trial of any individual who has been made subject to the jurisdiction of our courts? In my submission, principle surely tells us that that trial should be conducted according to the same rules of evidence and procedure as would apply in any other case of, say, murder, which was tried at the same time in the Scottish courts. If Clause 31 is enacted without the amendment of my noble friend Lord Campbell, then that is what will happen. In any other case of murder—however old the case may be—if appropriate, live television evidence could be used. As the clause stands, in a war crimes trial the same provision would apply. That is what even-handed justice requires.
If, on the other hand, the Committee were to pass the amendment that very basic principle would cease to apply. I see that the noble Lord, Lord Grimond, wishes to intervene. I gladly give way.
Lord Grimond: I am much obliged. I am certainly not a Scottish lawyer. I am a wholly out-of-date English lawyer. However, can the noble and learned Lord tell me for what crimes a person can be prosecuted after 50 years, except war crimes? Surely war crimes are in an entirely different category from other crimes. Therefore, to say that they must all be dealt with in the same way is irrelevant. Can the noble and learned Lord tell me what crimes there are for which one can be prosecuted when the offence took place 47 or 50 years ago?
Lord Rodger of Earlsferry: Whatever the position may be in England and Wales, the position in Scotland is that there is no proscription applying to crime at all. A person could be prosecuted for any crime after 50 years. That is the position in strict law

1051
in Scotland. It applies, for example, to an ordinary murder as it would apply to a war crime. Therefore, on that matter, there is no difference.
In looking at the amendment, the underlying assumption seems to be that it would somehow or other assure greater justice for the accused. But would it? Members of the Committee should notice that the clause as it stands—and I make this point in particular because the noble and learned Lord, Lord Wilberforce, mentioned it—would give the accused in a war crimes trial the right to ask for the evidence of defence witnesses to he taken by live television link. One can easily envisage circumstances where an accused might make such an application if, for example, one of the witnesses whom he wished to call to testify to his innocence of the crime was unfit and unable to come to court and give evidence. If the amendment is passed, then, at a stroke, the accused in a war crimes trial would lose that right—a right which would be available if he was being charged with and tried for any murder in a court next door. Is that just and fair to the accused?
The noble Lord, Lord Hylton, asked what safeguards would be available. Members of the Committee should look very carefully at the safeguards in Clause 31. In the first place, no application in a war crimes trial for the use of the power under this clause would ever be made except after consideration by the Lord Advocate, whoever he might be. I can tell Members of the Committee that whether that Lord Advocate was myself, or any of my successors of whatever party, the traditions of the office would absolutely ensure that his decision on the matter would be taken in the light of the interests of justice. Moreover, among those interests, one of the foremost would be the right of the accused to a fair trial. I repudiate completely any suggestion from any quarter that in the Bill the Government are somehow or other showing a determination that convictions will be achieved in an unjust way or that a prosecution would be taken unjustly. That seems to me to be totally inconsistent with the traditions of the office of Lord Advocate.
Plainly, in considering whether any application should be made to use the provision, the Lord Advocate, or whoever it may be, would scrutinise what kind of evidence the witness would be expected to give and whether it could be properly taken by live television link. Members of the Committee have given examples of the kinds of evidence which it is thought could not properly be taken by live television link. But, of course, there is a range of types of evidence. At one extreme there could be rather formal, technical evidence; for example, evidence from an archivist regarding what certain records contained. That archivist may not be an old man. Indeed, it may be a young lady who could give the evidence perfectly well on a television link. Would it be necessary for her to come all the way to Scotland to give that evidence?
That is one end of the range. At the other extreme there is the kind of evidence about which we have heard; namely, that which turns entirely on an issue of identification. Members of the Committee have pointed out repeatedly the difficulties which could
1052
arise in such a case. Is it really thought that the Lord Advocate of the day would be blind to those self-same problems? Is it thought that he would not take the matter into account when deciding whether to make any such application? It is really outrageous to think that that would be so. Indeed, there could be a whole range of cases at the middle stage where the Lord Advocate might have to decide very carefully whether an application should be made. The whole point is that the application would be considered in the light of what the Lord Advocate thought would be proper, having regard to the interests of justice.
But let us suppose—for suppose we must—that the Lord Advocate goes wrong. He may get the balance wrong. What then? At that point he will go into court. Members of the Committee must look at what the provisions, and the provisions as amended by the Committee this afternoon, provide. It will be seen that the way in which the subsection is framed is such that an application under subsection (2) will be granted only if "the judge is satisfied". Therefore, the judge has to be satisfied that the evidence is necessary, that the granting of the application is in the interests of justice and that it would be fair to the accused.
The noble and learned Lord, Lord Wilberforce, said that the noble and learned Lord, Lord Morton, had killed the matter stone dead by saying that we did not have witness statements in Scotland. If witness statements were necessary in order to ensure that the trial was conducted fairly, then, in the absence of such statements, the Crown would not succeed. The Crown has to satisfy the judge. If the absence of such statements meant that the judge could not be satisfied, then he would not grant the application. That is what the subsection says. The judge has to be satisfied.
I submit that the noble Lord, Lord Thomas, was correct when he said that the clause, especially as amended by this Chamber, contains all the safeguards which are necessary to ensure that a fair trial is available. I find far-fetched the idea that somehow or other judges in Scotland would not be alive to, and be acutely aware of, all the kinds of problems which have been mentioned today.
Let us further suppose that the application is granted but that, during the course of the trial for some reason or other when the provision is applied, something goes disastrously wrong and one finds that the effect of the evidence has been so to disrupt and cast doubt on the proceedings that the accused could not get a fair trial. Do Members of the Committee think that the Lord Advocate or the Advocate Depute prosecuting the case would be blind to the situation? He would surely have to take that into account. In such a situation, and in accordance with the kind of duty with which he is familiar, he might well conclude that it was not possible for a fair trial and desert the diet; that is, abandon the proceedings.
However, supposing that that was not done but that, nonetheless, it was apparent to the accused's advisers (the defence counsel) that the whole thing had become unfair. In such circumstances, an application could be made to the court to have the trial stopped on the grounds that a fair trial was not possible on the grounds of oppression. That remedy is open to the

1053
defence in any such trial. Those are the safeguards which are built into the provision in the statute and which exist under the general law which applies in criminal trials.
I do not apologise for this long account of these safeguards because in considering this matter the Committee has to take account of all of them. If the Committee does so it will conclude that this is a safe system.
If, on the other hand, the Committee accepts the amendment that will send a signal that we have, for other prosecutions in Scotland, a second-rate system which does not adequately ensure the interests of justice and the rights of the accused. The slur would not be confined to Scotland. I repeat that this matter is already covered by statutory provision in England and the Committee would be casting doubt on the provision which applies to murder, manslaughter and complex and serious fraud in England. There is no doubt that such a link could be used in a war crimes trial in England.
Again, if the Committee were to pass this amendment it would be casting doubt on the arrangements which could be applied in an appropriate case of a war crimes trial in England. I believe that it would be wholly wrong for the Committee to promote such doubts.
I therefore suggest that the amendment of the noble Lord, Lord Campbell, is bad because it would set up a special and different system for trying persons accused of war crimes. That is bad in principle. The principle suggests that the procedures should be the same as in any other case. Those procedures are designed to protect the rights of the accused. The clause is good as it stands and in the light of what I have said I ask my noble friend to seek leave to withdraw the amendment.
Lord Campbell of Alloway: I should like to thank all noble Lords who have spoken. The Committee will have formed a view on the merits of the amendment and certainly it is not my intention to reopen arguments in order to convince, but surely we do not have to entertain the type of emotive defence of the role of the Lord Advocate to which we have just now been subjected. In any event, if I may say so, I found some of the observations of my noble and learned friend the Lord Advocate wholly unconvincing.
Perhaps one of the reasons why I found them unconvincing stems from what another Lord Advocate said whom I shall quote:
"I hope that one thing is clear. Whatever the noble Lord, Lord Campbell of Alloway, may have said, I have never sought to disguise the fact—I repeated it in my opening remarks —that I should like to have this provision if there is to be a war crimes prosecution".—[Official Report, 1/5/90; Col. 957.]
That was in 1990. That is why the Government require this provision. Why do they require it? They require it as an aid to conviction not as an aid to acquittal.
Having, I hope, dealt with that I should like to deal with something else. It is suggested by my noble and learned friend the Lord Advocate in some of his remarks to the Committee that "Oh, it's all the same. A war crimes trial is no different from any other trial.
1054
We just have exactly the same system and what a marvellous system it is." By and large it is a marvellous system. But does the Committee remember the contribution from the noble and learned Lord, Lord Jauncey of Tullichettle, who explained that war crimes "are so very different"? The noble and learned Lord explained why. I shall not bore the Committee with the details. It is all very well for the Lord Advocate to ignore, so to speak, the opinion of a noble and learned Lord with experience of this order or, indeed, the contributions of the noble and learned Lord, Lord Wilberforce.
There are one or two scattered observations that I wish to make. The Committee will be relieved to hear that there are only a few. The first is important. There is no challenge, no hint of confrontation whatever with the Government on the War Crimes Act. The only question that arises is one of procedure to ensure a fair trial for the accused in a war crimes trial. The second matter is that if the Committee is minded to adhere to the opinion which Members of the Committee have already expressed on an exact replica of this situation in 1990 on a free vote, there is no confrontation with another place; and there was no confrontation on this matter with another place in 1990. The Committee is fully entitled to express its opinion and another place on this occasion, for all the Committee knows, might well accept it.
That is a matter for the other place to decide. Therefore, to speak in terms of any hint of confrontation is, frankly, wholly misconceived.
The next brief point, which was taken by several noble and learned Lords, is that it is utterly essential that in a war crimes trial, having regard to 50 years delay and having regard to the age of the witnesses, none of whom can be much younger than me—that is, 75—it is essential that the evidence from old people with fading recollections—and I charge the recollection of any Member of the Committee as to what precisely happened in the last war; I cannot totally remember—
Lord Campbell of Croy: I certainly can.
Lord Campbell of Alloway: My noble friend said that he can. I can remember broad outlines, but it would be difficult to swear to precise details. It is a matter for your Lordships. In any event, it is essential that with old witnesses their evidence should be laid before the jury and cross-examined according to our traditional procedures. That is a fundamental requirement of justice in a stale evidence case.
If what it comes to is that these men—and it may be so, I cannot say that I know it is so, but I suspect that it is so —cannot be brought to trial without this television link evidence as an aid to conviction or as an aid to raise the prima facie case, then the Committee may well think it better that they should not be tried at all.
Finally, I express my gratitude to Members of the Committee, in particular to the noble Lord, Lord Harris of Greenwich, for what he said about this place having to deal with this matter under a strong two-line Whip, a matter which concerns the procedure of criminal law in Scotland. I also thank most sincerely

1055
the noble Earl, Lord Perth, for his words which put the Members of the Committee who were able to hear it on clear guard about the constitutional position as between this country and Scotland on imposing laws upon Scotland which are not, in the opinion of the Committee, for the better administration of justice. I commend the amendment.
5.30 p.m.
On Question, Whether the said amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 80.

Division No. 1

CONTENTS

Ackner, L.

Jenkins of Hillhead, L.

Airedale, L.

Jenkins of Putney, L.

Alexander of Tunis, E.

Judd, L.

Ardwick, L.

Kimball, L.

Auckland, L.

Kintore, E.

Aylestone, L.

Lawrence, L.

Belhaven and Stenton, L.

Lindsey and Abingdon, E.

Birk, B.

Listowel, E.

Boyd-Carpenter, L.

Lloyd of Hampstead, L.

Braybrooke, L.

Longford, E.

Bridge of Harwich, L.

Lovell-Davis, L.

Brightman, L.

Lyell, L.

Brookes, L.

Lytton, E.

Browne-Wilkinson, L.

Macaulay of Bragar, L.

Cadman, L.

Mancroft, L.

Campbell of Alloway, L. [Teller.]

Mayhew, L.

Merrivale, L.

Carmichael of Kelvingrove, L.

Mersey, V.

Carter, L.

Meston, L.

Carver, L.

Molloy, L.

Chichester, Bp.

Monson, L.

Clanwilliam, E.

Monteagle of Brandon, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L

Clinton-Davis, L.

Mottistone, L.

Coleraine, L.

Mowbray and Stourton, L.

Crickhowell, L.

Mustill, L.

Cross, V.

Napier and Ettrick, L.

Cullen of Ashbourne, L.

Penrhyn, L.

Dacre of Glanton, L.

Perth, E.

Darcy (de Knayth), B.

Portland, E.

Dean of Beswick, L.

Prys-Davies, L.

Donoughue, L.

Rea, L.

Dormand of Easington, L.

Richard, L.

Dormer, L.

Ritchie of Dundee, L.

Dundonald, E.

Robson of Kiddington, B.

Elgin and Kincardine, E.

Rochester, L.

Falkland, V.

Russell, E.

Foley, L.

St. John of Bletso, L.

Foot, L.

Saint Oswald, L.

Fraser of Kilmorack, L.

Saltoun of Abernethy, Ly.

Gallacher, L.

Seear, B.

Gisborough, L.

Selkirk, E.

Graham of Edmonton, L.

Shannon, E.

Greene of Harrow Weald, L.

Shaughnessy, L.

Gridley, L.

Sherfield, L.

Grimond, L.

Slim, V.

Halsbury, E.

Stedman, B.

Hanworth, V.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Strathcarron, L.

Harrowby, E.

Sudeley, L.

Hilton of Eggardon, B.

Swinfen, L.

Hollis of Heigham, B.

Terrington, L.

Houghton of Sowerby, L.

Thomson of Monifieth, L.

Howie of Troon, L.

Tordoff, L.

Hughes, L.

Underhill, L.

Hunt, L.

Vaux of Harrowden, L.

Hylton, L.

Wharton, B.

Hylton-Foster, B.

White, B.

Jauncey of Tullichettle, L.

Wigoder, L.

Jeffreys, L.

Wilberforce, L. [Teller.]

Jeger, B.

Williams of Elvel, L.

1056

NOT-CONTENTS

Aberdare, L.

Lucas, L.

Aldington, L.

McColl of Dulwich, L.

Arran, E.

Mackay of Ardbrecknish, L.

Astor, V.

Mackay of Clashfern, L.

Bauer, L.

Masham of Ilton, B.

Beloff, L.

Mountevans, L.

Bessborough, E.

Murton of Lindisfarne, L.

Biddulph, L.

Nelson, E.

Blake, L.

Northbourne, L.

Blatch, B.

Oppenheim-Barnes, B.

Boardman, L.

Orkney, E.

Brabazon of Tara, L.

Park of Monmouth, B.

Butterworth, L.

Pearson of Rannoch, L.

Campbell of Croy, L.

Phillips, B.

Carnegy of Lour, B.

Platt of Writtle, B.

Carnock, L.

Prentice, L.

Chalker, B.

Renton, L.

Cocks of Hartcliffe, L.

Rodger, L.

Colnbrook, L.

Rodney, L.

Colwyn, L.

Romney, E.

Constantine of Stanmore, L.

St. Davids, V.

Cranborne, V.

Sandford, L.

Cumberlege, B.

Skelmersdale, L.

Denton of Wakefield, B.

Skidelsky, L.

Digby, L.

Soulsby of Swaffham Prior, L

Downshire, M.

Stanley of Alderley, L.

Eccles of Moulton, B.

Strabolgi, L.

Eden of Winton, L.

Strange, B.

Ellenborough, L.

Strathclyde, L.

Elliot of Harwood, B.

Strathmore and Kinghorne, E [Teller.]

Flather, B.

Fraser of Carmyllie, L.

Thomas of Gwydir, L.

Goschen, V.

Trumpington, B.

Harmsworth, L.

Ullswater, V.

Henley, L.

Waddington, L.

Hesketh, L. [Teller.]

Wade of Chorlton, L.

Hooper, B.

Wakeham, L.

Howe, E.

Westbury, L.

Joseph, L.

Wise, L.

Lane of Horsell, L.

Wynford, L.

Long, V.

Resolved in the affirmative, and amendment agreed to accordingly.
5.40 p.m.
Clause 31, as amended, agreed to.
Clause 32 [Evidence of children on commission]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 34:
Page 23, line 48, after ("may") insert ("on cause shown as to why it is inappropriate or impracticable for the child to give evidence in court").
The noble Lord said: This is a short amendment relating to obtaining evidence of children on commission. It proposes to insert after the word "may" in line 48 on page 23 a qualification that the court may grant permission for the evidence to be taken,
"on cause shown as to why it is inappropriate or impracticable for the child to give evidence in court".
Again, the same principles apply that if possible a witness should be in court. The amendment was put down so that such a motion should not be given by the court too readily without a proper examination of the reasons why there should be a departure from procedure. In one view at least, it may encourage what I may call "lazy" prosecutions. I beg to move.
Lord Rodger of Earlsferry: I fully understand the principle which lies behind the noble Lord's amendment. However, the point to which he adverts is governed by the provisions of Clause 34. They show

1057
that in these applications certain provisions of Section 56 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 apply. These lay down the situation in which such applications can be made. They can be granted on cause shown to the court such as having regard to the possible effect on the child, if the child were required to give evidence in default of the application or if the judge were satisfied that it is likely that the child would be better able to give evidence if the application were granted.
I shall not go through the various criteria but they limit carefully the circumstances in which the applications can be made. In the light of that explanation, I hope that the noble Lord will withdraw his amendment.
Lord Macaulay of Bragar: I thank the noble and learned Lord for that explanation, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 35:
Page 24, line 1, after ("commissioner") insert ("who shall be legally qualified").
The noble Lord said: This amendment is in the same section relating to the qualifications of the person who is to take the evidence from the child. The effect of the amendment is to ensure that the person appointed as commissioner should be someone with legal qualifications. It is important that the proceedings should be properly controlled by a person with experience of court procedure. I beg to move.
Lord Rodger of Earlsferry: Again, the idea behind the amendment seems to me to be proper. It is that the commissioner who is appointed should be legally qualified. I cannot think of any occasion on which a court has ever appointed a commissioner who was not legally qualified. I therefore anticipate that the court would always in practice appoint a commissioner who was legally qualified, because the commission would be part of the trial proceedings over which the judge would normally preside. It may be that with that assurance the noble Lord will feel able to withdraw his amendment. If not, I am prepared to take it away and consider it.
Lord Macaulay of Bragar: I entirely agree with what the noble and learned Lord said about it being unlikely that an unqualified commissioner would ever be appointed but it is really a protective qualification. If it does no good, it does no harm. If the noble and learned Lord is prepared to give the amendment further consideration, then I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 36:
Page 24, line 11 after ("accused") insert ("nor his representative").
The noble Lord said: It may be convenient to deal with Amendments Nos. 36 and 37 together.
1058
Amendment No. 37 originally stood in the name of the noble and learned Lords, Lord Cameron of Lochbroom and Lord Morton of Shuna. The latter hoped to be here and apologises to the Committee for his absence, but he is engaged on judicial business. I agreed that at least I would present the amendment in his name to the Committee for its consideration.
Amendment No. 36 deals with the question of who should be present when the child gives evidence. In Clause 32(3) it is a qualification that neither the accused nor his representative should,
"be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings".
The noble and learned Lord, Lord Morton of Shuna, asked me to present Amendment No. 37 to the Committee as a probing amendment. He asks why it is necessary that the accused or his representative should be able to watch the child as well as to hear the proceedings. He raises the question, for example, about what happens if the accused is blind. That may not be a good example, but I put the matter before the Committee in order to ascertain the Government's reasoning behind the words "watch and". I beg to move Amendment No. 36.
Lord Meston: Before the noble and learned Lord replies, I wonder whether he can inform me what opportunity under this procedure an accused person would have for his case to be put to the child witness. If the amendment is accepted and neither he nor his representative is present, it will presumably depend upon the commissioner having an idea of what is or might be the accused's defence and putting the appropriate questions to the child witness. That seems to me to be a rather unsatisfactory position.
In all these situations, the interests of the child witness must be balanced against the interests of the accused. These are always difficult and sensitive cases; but I wonder what is envisaged here procedurally and what opportunity the accused would have for his case to be put, and for appropriate questions to be put to the child.
Lord Mackay of Ardbrecknish: When I read Clauses 32 and 33 on child witnesses, I was a little perturbed over exactly the same point as has just been made by the noble Lord, Lord Meston. I became even more worried when I saw the amendment in the name of the noble Lord, Lord Macaulay, proposing to take the representative of the accused out of the room in which the evidence from the child was being recorded on video.
My anxiety has been almost brought to a head by certain matters in the Scottish press and elsewhere concerning the situation in Orkney, and more recently in Ayr. The evidence there seems to turn on child witnesses. I am a little anxious that if the amendment were to remove the representative of the accused from the room, it is based on the assumption that child witnesses are totally trustworthy and reliable. I do not personally believe that children are any more reliable as witnesses than adults. Indeed, from past experience which I had as a school teacher, I am not sure that they are even necessarily as reliable as adults.

1059
I appreciate that children must be protected from difficult and upsetting situations; but there must be a balance between that protection and subjecting their evidence to the same critical analysis as the evidence of any other witness in a case. Like the noble Lord, Lord Meston, I should like to hear my noble and learned friend the Lord Advocate reassure me that the interests of the accused are not put at risk under this clause, and especially under the amendment put forward by the noble Lord, Lord Macaulay.
Lord Rodger of Earlsferry: I do not think I could have put the case against the amendment more clearly than the noble Lords, Lord Meston and Lord Mackay of Ardbrecknish, have done. The principle behind the procedure in Clause 32 is that evidence should be taken from the child but that it should be taken under the appropriate legal safeguards. As has been said, while the interests of the child are important and it is important to reduce strain on children, one can never lose sight of the fact that one is dealing here with a criminal trial where the rights of the accused are important.
What is sought is to strike a balance in the clause by stating that the accused himself will not be present and that will reduce strain on the child. However, there was no intention that his representative would not be present. If his representative were not present, I, like the noble Lord, Lord Meston, should find it difficult to see how appropriate questions could be put in placing the accused's case to the child witness. Therefore it seems to me important that the accused's representative should be present. For that reason I invite the noble Lord to withdraw the amendment.
As regards the words "watch and" in line 19 on page 24 of the Bill, the position there is that it was thought appropriate that the arrangements should be made so that the accused, like other persons in the court, should be able in accordance with the usual provisions to see the witness. The demeanour of the witness is often a matter of great importance. It is part of the general proceedings of the trial. It would be wrong if the accused were deprived of the possibility of seeing the witness. A blind accused, of course, could never do that, but here we are dealing with the ordinary run of the mill kind of situation. It is envisaged, for example, that where screens are being used they should be such that they enable one-way vision. Technology does not seem to have advanced that far but by the use, for example, of closed-circuit television the accused could both see and hear the witness. I ask the noble Lord again to withdraw the amendment.
Lord Macaulay of Bragar: In Amendment No. 36 I was thinking of possible intimidation or some kind of confrontation that might affect a child's evidence. However, I am persuaded by the eloquent arguments presented from all parts of the Committee that the amendment is bad. Accordingly I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 agreed to.
Clause 33 [Concealment by screen of accused from child giving evidence]:
[Amendment No. 37 not moved.]
Clause 33 agreed to.
Clauses 34 and 35 agreed to.
Schedule 3 agreed to.
Clause 36 agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 38:
After Clause 36, insert the following new clause:
("Additional matters for court to take into account
.—(1) Section 76 of the 1975 Act (Preliminary diet) shall he amended as follows.
(2) In subsection (1) after "(c)" there shall he inserted the words "that there are documents the truth of the contents of which ought in his view to be admitted, or that there are any other matters which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above.
(3) The existing subsection 1(c) shall become 1(d) and in that subsection after "(a) or (b)" shall be inserted the words or (c)".").
The noble Lord said: This amendment seeks to amend Section 76 of the 1975 Criminal Procedure (Scotland) Act as regards preliminary diets. The object behind the amendment is to see whether we can knock some evidential sense into protracted trials such as fraud trials where a vast amount of documents are produced. There has been recent experience in more than one court of circumstances where the documents are not admitted by the defence, presumably on the instructions of the accused. That rather ties the hands of his representative.
The end result in one trial—I understand this was the case although I was not present—was that a considerable number of representatives from various commercial firms were paraded through the court merely to speak to the document itself or, if the document was a copy, to explain where the original was. Such a procedure is not fair to the public or to the jury who have to listen to such a parade of evidence. On any commonsense view such matters could and should have been agreed beforehand.
At the preliminary diet stage before the trial has commenced the amendment suggests, in relation to the judge, the following words,
"that there are documents the truth of the contents of which ought in his view to be admitted, or that there are any other matters which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above".
The proposed new subsection (3) is merely consequential.
This is a matter of some concern particularly where cases are funded by public funds and legal aid. These matters should be streamlined in the public interest. The accused always has the right to silence and he does not need to admit to anything. Amendment No. 38 is a suggestion only but the Government may consider setting up a committee to consider how this matter can be dealt with. There is also the question of whether photocopies should nowadays be accepted as a substitute for the original. Many other issues could be regulated in the way I suggest. If they were so regulated the tedium would be removed from fraud and other trials and a more streamlined system would result in major cases than we have at present.
Sections 7 to 10 of the Criminal Justice Act 1987 clearly set out a procedure for England. It would be worthwhile, I believe, for the Government to consider

1061
those sections and see whether there is scope for adapting the principle to the Scottish system. If that were done, by the time a case came to trial the issues would be focused and the appearance of many side issues before the court would be avoided. I have tabled this amendment in a constructive attempt to assist the better administration of justice. I am sure the Government will accept that. The amendment also stands in the names of the noble and learned Lords, Lord Morton of Shuna and Lord Cameron of Lochbroom. I beg to move.
Lord Fraser of Carmyllie: The intention behind the amendment is laudable. I am grateful to the noble Lord for raising the matter in the absence of both the noble and learned Lords, Lord Morton and Lord Cameron of Lochbroom. Any measure which can be taken to improve the operation of the criminal justice system and avoid unnecessary delays and inconvenience to those involved is to be welcomed. The noble Lord has given a good example of a trial where this provision would have saved the time and money not only of the taxpayer but also of jurors and witnesses brought from all over the country to attend such a trial. A great deal of time, expense and worry would have been saved if the agreement the noble Lord spoke of had been secured in advance of the trial.
My only concern about the amendment is this. During my time as Lord Advocate I had understood that it was the practice for such matters to be brought before the court at a preliminary diet relying on the provisions which exist already in Section 76(1)(c) of the 1975 Act. I say with no disrespect to the noble Lord, Lord Macaulay, that I rather wish that either the noble and learned Lord, Lord Cameron, or the noble and learned Lord, Lord Morton, had been present today because I should like to know whether the judiciary in Scotland are now choosing to define Section 76(1)(c) in a different way or whether they consider it does not allow for some examination of the issue of admission of documents. I invite the noble Lord to withdraw the amendment but I should like to seek the views of both of the noble and learned Lords who put their names to the amendment. If it is their view that Section 76(1)(c) is too restrictive I would be prepared to look at the matter favourably.
Of course there are wider issues which have to be examined to see whether we can improve the methods whereby uncontentious evidence can be agreed before a trial starts. The noble Lord will be aware that my noble and learned friend the Lord Advocate is already pursuing various schemes and initiatives, such as giving police officers' statements to representatives of the accused. However, I readily accept the noble Lord's view that even such initiatives may not be sufficient and we may have to look at some of the approaches which have been followed on this side of the Border.
6 p.m.
Lord Macaulay of Bragar: I am grateful for that information. As I understand it, that last experiment is confined to summary procedure.
1062
One of the problems with the operation of Section 76(1) (c) is that what happens is dependent on the party making the application to the court and the court has no authority to bring the parties before the court. The principle behind the amendment is that the court will be given the power to bring the parties in a trial before the court; for example, where there are a great many documents or matters which the court considers could reasonably be agreed.
Perhaps I may say in passing that it might be a constructive exercise to consider the way in which some trials have proceeded where documents have not been agreed and the cross-examination which took place by representatives in the course of the trial. That might be an instructive exercise, although one would not necessarily find anything wrong. That might be reflected in another place in respect of remuneration, but we do not need to go into that aspect at this time.
In the light of the Minister's undertaking I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clause 38 [Date of commencement of sentence]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No.39:
Page 25, line 44, leave out ("(other than an offence in respect of which imprisonment for life is mandatory)").
Lord Fraser of Carmyllie: At an earlier stage I indicated to the noble and learned Lord, Lord Morton of Shuna, that I would accept the amendment.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 39A:
Page 26, line 1, leave out ("paragraphs-") and insert ("words—
"or spent in custody awaiting extradition to the United Kingdom;").
The noble and learned Lord said: Broadly speaking, the intention behind the amendment is that when imposing a sentence of imprisonment or detention the court should either make allowance for time spent in custody on remand or awaiting extradition to the United Kingdom or should give reasons for not doing so.
There is a defect, which the amendment seeks to correct, in that the first mention of the extradited prisoner is in the new paragraph (c) which Clause 38 seeks to insert into Sections 218 and 431 of the 1975 Act. It is therefore merely implied that the courts are to have regard to time spent in custody awaiting extradition. Something more than an implication is required and the amendment provides that something by including a reference to such time in the existing words which are to become paragraph (a) of either section. I beg to move.
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Prosecutor's consent to or application for setting aside of conviction]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 40:
Page 27, line 25, leave out ("either in court or in chambers").
The noble Lord said: The amendment relates to the section dealing with the situation where the prosecutor consents to an application for the setting aside of a conviction. The objective behind the amendment is to ensure that everything takes place in public. Presumably a person who appeals has already been convicted. It is therefore important that if the conviction took place in public the disposal of the appeal should also take place in public. That is the purpose of the amendment. I beg to move.
Lord Fraser of Carmyllie: The effect of the amendment would be to remove the requirement that the proceedings under the clause could be heard in a location other than the court or chambers. We consider that undesirable. The procedure under Clause 39 is part of the appeal process and as such should be subject to the normal rule that judicial proceedings should be conducted within the precincts of the court. The clause as presented to the Committee in that respect mirrors the existing provision in Section 453 of the 1975 Act, and I am not aware of any difficulties which have been encountered in that regard in the operation of the section.
The provisions in Clause 39 are intended to provide an accelerated method of bringing an appeal to a speedy conclusion, thereby minimising the expenditure and time involved for all concerned. The procedure is dependent on the Crown deciding, either on its own initiative or at an early stage of appeal, that there are no grounds for sustaining a conviction. For that process to work the reasons should be clear, as Lord Justice General Cooper stated in 1947 in O'Brien v. Adair:
"where some fatal flaw in the proceedings has been discovered, or where new facts have come to the Crown's knowledge".
In considering those proceedings the judge will require to have all the relevant papers which have been transmitted to the High Court by the inferior court. He may well require to hear parties and to have ready access to his clerk or to the justiciary office.
Lord Macaulay of Bragar: I am interested in the explanation given. However, if the case is heard in chambers how do the public become aware of the fatal flaw and the reason for the person who has been convicted walking free? I do not know whether there is an answer to that point or whether I have got hold of the wrong end of the stick.
Lord Fraser of Carmyllie: It may be that if the matter is considered in chambers the public would not be admitted. I have indicated that the procedure is part of the appeal process and intended to accelerate matters. We do not think that it should be done anywhere; it should be done either in a court or in chambers within the confines of a court building. That would seem appropriate, notwithstanding the accelerated and less formal approach that has been adopted.
Lord Macaulay of Bragar: I appreciate the need for acceleration of the formalities. However, that explanation does not meet the case. For example, a person who has been assaulted and thinks that the person who has been convicted of that assault is in
1064
prison may walk down the high street and see the person who assaulted him walking down the road. He will ask, "Why is he walking about? He should be in prison". If there is no public forum in which the release can be certified then justice is not seen to be done.
However, I listened with interest to what the noble and learned Lord said and I shall have a close look at his words in the report of the debate. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 41:
After Clause 39, insert the following new clause:
("Obligation of prosecutor to disclose information
.—(1) Section 83 of the 1975 Act shall be amended as follows.
(2) At the end there shall be inserted the following subsection—
"(2) The prosecutor shall be obliged to disclose to the accused all information which he has in relation to the allegations made in the indictment." ").
The noble Lord said: The purpose of the amendment is to ensure that the prosecutor in a case should be obliged to disclose to the accused all information which he has in relation to the allegations made against the accused person
The reason for the amendment is that there is some confusion as to the duty of the Crown in relation to supplying material to accused persons. There have been considerable problems in cases in England, as Members of the Committee will be aware, which have led to notorious appeals. In those cases the defence had not been given relevant material —reports as well as statements—which would have assisted the defence and perhaps obtained an acquittal in the first place.
At least one judge has said that there is no obligation on the Crown in Scotland to tell the defence anything and that it is up to the Crown to decide what is appropriate. I understand that the noble and learned Lord, Lord Fraser of Carmyllie, expressed the view that he would always assist the defence and I am sure that that is quite true.
This amendment has been tabled on the basis that it is time to stop playing hide-and-seek in the prosecution system between the Crown and defence on relevant issues. It should not just be a matter for the Crown to obtain a statement or a report relevant to the inquiry, look at it, stick it in a file and then proceed to trial on what it considers is important. The defence should be entitled to see anything that has been recovered in relation to the prosecution, subject of course to cases of national security or the safety of the witnesses. But such matters can easily be dealt with.
In Scotland there is a theory of confidentiality of witnesses' statements which occurs when a person makes a statement to the procurator fiscal. So far as I am aware it does not have any legal basis and is illogical. If someone makes a statement to a policeman at the scene of, say, a murder, he does not enjoy any privilege at that time. There is no confidentiality and he may be taken before the court to give his evidence.

1065
As a person who is of value in a case has to give evidence at some time, it seems artificial to hide behind at least the theory of confidentiality. One wonders how many witnesses being precognosced by procurators fiscal are told that their statements are confidential. If so, I wonder how much confusion that causes. If a witness is told that, he may very well think he can say anything he likes about the case, on the basis that he will not be called to give that evidence in court.
I recall very clearly a case from central Scotland where the second witness in the case was a man who had reported an embezzlement within his firm. He had given a statement and specifically said at the bottom of that statement: "I am giving this information in strict confidence on the basis that it is not to be founded upon". He found himself as number two in the Crown List in the High Court to give evidence against the accused.
There is also police involvement. I recall a case in which a policeman went into court to give evidence and in the course of that evidence said that the accused person had made a very damaging admission. Defence counsel asked, "Were you not seen by a solicitor for the defence?" He said, "Yes". The defence counsel said, "You didn't tell the solicitor for the defence that, did you?" and the policeman, who was a very senior officer, said, "He never asked". So the policeman's view was that if the solicitor does not ask the correct question, he will never get the answer.
That information was in the Crown precognition and should have been made available to the defence. We are supposed to be moving into an atmosphere of openness. This is an area which should be open, to ensure fair trial and that no injustice will occur—so far as it is possible to avoid injustice within the courts when dealing with human testimony.
It may be time for the Crown Office to take a close look at all the principles behind this matter and—again, like the other amendment—consider whether this point might have a beneficial effect on the administration of justice in the long run. It will give people a feeling of security and a sense that they know everything about the case before it starts, so that they do not have to go fishing after a conviction. I beg to move.
Lord Rodger of Earlsferry: The issue raised by the noble Lord's amendment is undoubtedly most important. It is one which must be in everybody's mind today following the Judith Ward judgment this morning. The matter of disclosure is one to which all concerned with the prosecution must attach the greatest importance.
As the noble Lord, Lord Macaulay, said, the position in Scotland at present is that there is no legal duty to disclose information to the defence. The purpose of this amendment is to seek to alter the position in law. However, what matters is not the legal position but what the Crown sees as its duty in practice, whatever the law may or may not provide.
On that matter I can explain the position quite clearly. The overriding principle is that the Crown must always act in the interests of justice. As part of
1066
that general approach, all members of the Procurator Fiscal Service are reminded that they must disclose to the defence any information which supports the defence case even though it may be damaging to the Crown case. They are also instructed that they should provide assistance to the defence if it is necessary to enable witnesses for the defence to be traced. The overall aim should be to try to ensure that the true facts of any case are laid before the judge or jury.
I believe that that approach is well understood by procurators fiscal and Crown counsel. As the noble Lord, Lord Macaulay, knows, it is very common in our courts for the prosecution to lead, as part of its case, the evidence of witnesses who contradict that case to a greater or less extent. That is entirely proper since in that way the Crown is laying out, so far as it can, a true basis on which the jury is to decide.
Such then is the present position. For the future, as noble Lords may be aware, my right honourable friend the Secretary of State for Scotland has undertaken to consider carefully the recommendations of the Royal Commission into the English system, chaired by the noble Lord, Lord Runciman. I should have thought that the commission may well have recommendations to make on this matter and on the related and separate but equally important matter of police disclosure of information to the Crown authorities. For my part, I shall pay close attention to what is said by the Royal Commission and consider whether any further changes require to be made. Indeed, I can tell the noble Lord, Lord Macaulay, that the example of handing over police statements —admittedly, only in the case of summary proceedings —is an indication that these matters are under consideration.
The noble Lord indicated that the doctrine of confidentiality has been widely applied in Scotland. That again is something at which I intend to look.
Lord Macaulay of Bragar: I am obliged for that full and informative answer. I am sure that the noble and learned Lord's comments will have been noted with interest by defence counsel and solicitors for the future. There is certainly among some people a slight feeling that on occasions they do not get full co-operation. I accept that in 99 times out of 100, if approached, the Crown will be co-operative. I hope that it will always remain that way.
In the light of that explanation, which will be noted in the appropriate quarters, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 42:
After Clause 39, insert the following new clause:
("Right of prosecutor to appeal in solemn cases
.—(1) Section 228 of the 1975 Act shall be amended as follows.
(2) After subsection (1) there shall be inserted the following subsection—
"(1A) The prosecutor in such proceedings may so appeal on a point of law—

(i) against an acquittal in such proceedings; or

1067

(ii) against a sentence passed in such proceedings".").

The noble Lord said: Again this is an amendment of a probing nature to see whether anything will happen in relation to the right of a prosecutor to appeal in solemn cases. It would mean the insertion of a new clause in the 1975 Act, that in such proceedings the prosecutor could appeal on a point of law:
"(i) against an acquittal in such proceedings; or
(ii) against a sentence passed in such proceedings".
I understand that at the moment the prosecutor has no such right. As the Committee will be aware, from time to time there are occasions when the public feel that their hands are tied by the judicial system because what is perceived to be an inadequate sentence has been passed for a serious crime. It would be invidious to detail particular instances but I have no difficulty in recalling cases which have upset either the public or relatives of the victim, cases in which a very serious crime was not met with what was considered a reasonable sentence. I accept, however, that the public do not hear the whole case and do not see the reports placed before the judge. The reason for this amendment is to give the prosecutor such a right, which would be exercised very sparingly.
It is important to remember—I am sure that we are all aware of it—that the victim has no representation in court and the family of the deceased has no representation in court. They are dependent on what comes out at the end of the legal machine, so to speak. I can think of cases of reckless driving causing death —bad culpable homicide. What should plainly in the public view have been murder becomes culpable homicide and, on the face of it, a trivial sentence is passed on the assailant. That makes the public feel that justice is not being done and that in serious cases the interest of the offender may supersede the interest of the victim or the victim's family. Are any steps being taken at present to consider introducing to the prosecutor the right of appeal in solemn cases?
The Committee will appreciate that it is a probing amendment. I look forward to hearing the reply from the noble and learned Lord. I beg to move.
Lord Rodger of Earlsferry: The amendment probes on two fronts. The first relates to the possibility of the Crown appealing on a point of law against an acquittal in solemn proceedings. Such a change in the law introduces a completely new concept which is quite contrary to what has always been regarded as a fundamental principle of our law: that once someone has been acquitted by a jury he is forever free from the risk of any further prosecution.
Limited departure from that principle has been made in connection with appeals. However, the amendment is a far-reaching proposal. I do not know of any proposal at present in the minds of those considering such matters to introduce an appeal against an acquittal in solemn proceedings.
If one turns to the matter of sentence, the effect of the amendment would be to give a right of appeal on a point of law against an inadequate sentence. However, as I understood the noble Lord, he raised a rather more general point relating to the matter of appeal against sentence generally. The noble Lord may recall that there was indeed a commitment in the
1068
Conservative manifesto in Scotland that a Crown appeal against lenient sentences would be considered. That is indeed the position. It will be considered. In due course a proposal on that line may he brought before Parliament.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord. I did not appreciate that an appeal concerning law against acquittal would harm the jury system. I was not so keen on that proposal but rather prefer the second which was meant to be disjunctive; the word "or" appears. The amendment may be badly framed. However, I am obliged to the noble and learned Lord for the explanation. I look forward to further developments. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 43:
After Clause 39, insert the following new clause:
("Majority verdict in solemn proceedings
.—Immediately preceding section 154 of the 1975 Act there shall be inserted the following section—
"Majority verdict in solemn proceedings.
153A.—(1) No person shall be convicted of any offence unless 10 members of the jury vote in favour of a guilty verdict.
(2) The verdict of the jury shall be publicly recorded and the number of jurors voting in any verdict shall be publicly announced." ").
The noble Lord said: This is another amendment which may be regarded as rather radical. The Committee know that there are three verdicts in Scottish criminal courts: guilty, not guilty and not proven. The "not proven" verdict is unique to the law of Scotland. Whether or not it is a good verdict in the public interest is another matter. It has been used on many occasions.
In Scotland one has a jury of 15. When one talks of the presumption of innocence, if seven people out of 15 are not prepared to convict that must surely constitute reasonable doubt as to the person's guilt. Yet in Scotland over the years people could be hanged or receive life sentences on the single majority vote out of 15 jurors. It is sad sometimes that people go down after a verdict of eight votes to seven. There is a sense of injustice and that there has been a reasonable doubt. In reality the majority always leaks out. We have this great theory that no one knows the majority. But there have been many occasions when for one reason or another the number leaks out. I do not suggest impropriety on anyone's part. Indeed, I seem to recall one case not so long ago in which the Appeal Court had knowledge of the majority—but I speak off the top of my head on that issue. It is a silly procedure unrelated to modern times.
The amendment proposes that,
"no person shall be convicted of any offence unless 10 members of the jury"—
out of the 15—
"vote in favour of a guilty verdict".
That still leaves a majority of 10 to five. That is a ratio of two to one. It seems eminently more reasonable than convicting a person on a single majority vote out of 15.
The second suggestion is that the verdict of the jury should be publicly recorded and that the number of jurors voting in any verdict shall be publicly announced. That does not seem to harm the system.
Perhaps I may refer to the "not proven" verdict. As the Committee gather, I am not terribly keen on it. At one time it used to be defined by judges. There was a classic definition in 1964 in the case of M'Nicol by the late Lord Justice General Clyde. However, in recent times when judges have tried to explain the not proven verdict, they have got into an awful fangle. So far as I am aware the judges are now warned not to try to define that verdict. If the judge cannot define it, how is the jury supposed to know what it means? It is a fudge of a verdict. It is time we moved into the 20th century and modernised the jury system by bringing in a proper system that reflects guilt beyond reasonable doubt. The present system does not do so. I beg to move.
Lord Fraser of Carmyllie: As with the previous amendment, this amendment takes us to a fundamental principle of Scots law; namely, that a jury shall reach its verdict by a majority decision and that the details of that decision should remain confidential to the members of the jury.
That principle has stood for centuries and I would wish to have very strong arguments advanced and extensive periods of consultation with all those involved in the criminal justice system before beginning to address a possible overturning of that vital tenet of Scots law. We are not in a position to know what occurs in the jury room. That is another basic principle of our law. I am therefore not in a position to say whether a move to a majority of 10 would alter the way in which courts would have to operate in the time required for juries to reach their decision, or whether there would be any substantial alteration.
As the noble Lord says, around the courts one tends to hear rumours of what the majority was on any day. But I am sure that I do not need to remind the noble Lord of the provisions of the Contempt of Court Act 1981 in that respect. While there may be majorities of eight to seven, the system appears to have worked well. If any change were to be contemplated I believe that there should be a study of the matter. That might mean having some adjustment to the 1981 Act so that reviews, analyses and research with regard to juries could be undertaken.
Lord Harris of Greenwich: The noble and learned Lord raised a point which interests me. Does he say that research into the proceedings in the jury room is inconsistent with existing legislation or would it be possible?
Lord Fraser of Carmyllie: The noble Lord may remember the express provision in the Contempt of Court Act 1981 which ensures that no one can interview jurors to find out exactly how they voted. As I understand it, on this side of the Border, one Attorney-General in the past has allowed some limited access to jurors, but I believe that such access related
1070
to questions such as did the jury find the room big enough, warm enough, or airy enough, were there sufficient toilets, and such matters. But I believe that on both sides of the Border research on how the jury reached its verdict and the majority would be considered beyond the bounds of the Act.
Baroness Carnegy of Lour: Before the noble Lord replies, perhaps I may ask from where the amendment originates. Is it the noble Lord's own amendment? He raises a fundamental amendment at a late stage in the Committee stage. Does he raise it without any particular basis or consultation? It may be appropriate to raise it, but how can such a fundamental amendment be raised in this way? For my own information perhaps he can explain that, because I am interested.
6.30 p.m.
Lord Macaulay of Bragar: I do not have any source material for research; but the amendment comes from my experience and conversations with practitioners. There is a good deal of dissatisfaction that a person should be convicted by one vote out of 15. This seemed an appropriate forum in which to raise the matter and presumably it is the only opportunity that we shall have for a long time to amend the law of Scotland. I appreciate that it makes fundamental inroads into the present system.
The noble and learned Lord said that the system had worked well. That raises the question: worked well for whom? If one were at the receiving end of an eight to seven majority, I do not think that one would consider that the system was working well or that it was fair. In order to achieve a better balance of fairness in the system it is time that we looked at the issue. I agree with the noble and learned Lord that perhaps research could be conducted and that he should come back in due course so that we can debate whether the idea is good or bad. The answer to the noble Baroness, Lady Carnegy, is that the provision came from what I care to pass as a brain and is based on my experience in the courts and on conversations with practitioners. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40, as amended, agreed to.
Clause 41 [Rules and orders]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 43A:
Page 28, line 36, after ("section") insert ("6(3),").
The noble and learned Lord said: The amendment corrects an omission. It is intended that an order on the provisions in Clause 6, like other orders of that kind, should be subject to affirmative resolution. A reference to subsection (3) of Clause 6 therefore requires to be inserted in Clause 41. I beg to move.
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clauses 42 and 43 agreed to.
Schedule 4 [Minor and Consequential Amendments]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 44:

1071
Page 34, line 20, leave out ("four") and insert ("six").
The noble Lord said: The amendment was tabled by the noble and learned Lords, Lord Cameron of Lochbroom and Lord Morton of Shuna. I have undertaken to raise it before the Committee. The object of the exercise is to give more time to receive reports. Apparently some members of the judiciary find that reports are not submitted within the four-week period required in the legislation. It is believed that six weeks would be a more practical period of time. I beg to move.
Lord Fraser of Carmyllie: There have been problems and for that reason it is proposed to extend the period from three to four weeks. I hope that extension is sufficient. I understand that a period of six weeks would provide even greater flexibility but that would permit too much slack to enter into the system. There is a risk that the normal period for adjournments might rise to new levels.
While I appreciate that preparation for reports is undertaken against a tight deadline and that additional time would be welcomed, I have yet to be convinced that in all cases the system would benefit from such a large extension of time. The intention must be to ensure that having convicted an offender of a crime, the appropriate sentence should be passed down as soon as possible thereafter. The system has coped more or less with the three week requirement, and an extension to four weeks will resolve some of the anomalies without introducing too much slack into the system. I should prefer to go no further at this stage.
Lord Macaulay of Bragar: I am sure that the noble and learned Lords who tabled the amendment will note the Minister's comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 44A:
Page 37, line 13, after ("3") insert ("of the Schedule").
The noble and learned Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 44B:
Page 37, line 36, at end insert:
("( ) In section 12 (photographing and measuring of prisoners)—

(a) for the words "The Secretary of State may make regulations as to" there shall be substituted the words "Rules under section 39 of this Act may provide for"; and

(b) the words "such regulations" shall cease to have effect.").

The noble and learned Lord said: I shall speak also to Amendment No. 48. The amendments would correct an anomaly in the existing provisions of the Prisons (Scotland) Act 1989. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 44C:
Page 37, line 47, after ("large)") insert:
1072

("(a) after the word "institution", where it first occurs, there shall be inserted the words "or committed to a prison or remand centre";

(b) after the word "sentence" there shall be inserted the words "or committal";

(c) for the words "or young offenders institution" there shall be substituted the words ", young offenders institution or remand centre"; and

(d)").

The noble and learned Lord said: The amendment corrects another minor defect in the existing provisions of the Prisons (Scotland) Act 1989. I beg to move.
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Schedule 5 [Transitional Provisions and Savings]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 44D:
Page 38, line 28, leave out ("that") and insert ("the 1975").
The noble and learned Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 45 to 47 not moved.]
Schedule 5, as amended, agreed to.
Schedule 6 [Repeals and Revocations]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 48:
Page 41, line 28, column 3, at beginning insert: ("In section 12, the words "such regulations".")
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 44 agreed to.
House resumed: Bill reported with amendments.

Anatomy (Northern Ireland) Order 1992
6.37 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran)The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran) rose to move, That the draft order laid before the House on 2nd March be approved.
The noble Earl said: My Lords, the purpose of the order is to define the arrangements for the use and custody of bodies left for the purposes of teaching anatomy. It also sets out requirements for the licensing of persons to practise anatomy and for the licensing of premises in which it is to be practised. The order will replace the Anatomy Acts of 1832 and 1871, which still apply in Northern Ireland, and bring the law in the Province into line with the rest of the United Kingdom. In short, this is a parity measure which will do for Northern Ireland what the Anatomy Act 1984 did for the rest of the United Kingdom since it came into force in 1988.
The structure of the order is simple and follows closely the provisions of the Anatomy Act 1984. It would therefore be tedious to subject your Lordships to a detailed explanation of each and every article. I propose therefore to concentrate on the main provisions.
Article 4 forms the core of the order, and sets out the conditions which must be met before anatomical

1073
examination is carried out. The body must be lawfully donated, the death must be registered, the premises must be licensed and the person carrying out the examination must be authorised. Similar conditions apply to possession of the body, or "anatomical specimen" as it is defined in the order.
Article 5 deals with licences. Any person wishing to practise anatomy will require a licence granted by the department for that purpose. The premises in which anatomy is practised will require to be licensed, and a licence will also be required to possess parts of bodies following completion of anatomical examination. In addition, the licence-holders will be required to maintain records of bodies (and parts of bodies) held in his or her possession, and to keep records of anatomical examinations.
Article 6 specifies what constitutes lawful examination. The anatomical examination of a body is lawful if the body has been lawfully donated; that is donated by a person in writing during his or her lifetime, or orally in front of witnesses during his or her last illness. In addition, a person having lawful possession of a body may authorise its use for anatomical examination where, after reasonable inquiry, there is no reason to believe that the deceased had previously made any objection to his or her body being so used, and that surviving relatives would object to such use.
Article 6 also defines the period for which a body may be retained for examination. Under the 1832 Act a body could only be retained for 6 weeks. The 1971 Act subsequently provided for the extension of the period to 2 years but advances in science now mean that a body can be kept in good condition for up to 3 years, the maximum period specified in the order.
Article 7 provides that it shall be unlawful to retain a body or part of a body following the expiry of authority—that is, after 3 years—or after anatomical examination is completed. However, paragraph (4) of this article allows for an exception to this requirement in cases where a licensed person, or a person authorised by him or her, needs to retain part of a body for research or teaching purposes. The conditions to be fulfilled before such retention is lawful are set out in Article 8.
Articles 9 and 10 cover the system for issuing licences and empower the department to make regulations for the orderly conduct of examinations and the decent disposal of bodies and parts of bodies after examinations have been concluded.
Article 11 re-enacts the provision in the 1832 Act which empowers the department to appoint inspectors of anatomy. The inspectors' powers and duties are set out in Article 12.
Present-day circumstances are of course radically different from those which gave rise to the introduction of the 1832 Act. Medical schools did not at that time have an adequate supply of bodies for the purpose of anatomical examination, and it was not unusual for newly buried corpses to be removed illegally from graves by body snatchers or "resurrection men", as they were known, for sale to medical
1074
schools. Among the more notable practitioners of this art were two infamous gentlemen known as Burke and Hare.
Nevertheless, even in modern times, it is necessary to regulate the practice of anatomy in order to ensure (and perhaps more importantly assure) the public that proper arrangements are made for the use and custody of bodies donated for the purpose of teaching anatomy. The order therefore is a necessary updating of the 1832 and 1871 Acts. It relates to a limited, but important, sphere of activity. I commend the order to the House.
Moved, That the draft order laid before the House on 2nd March be approved.—(The Earl of Arran).
6.45 p.m.
Lord Prys-Davies: My Lords, I congratulate the noble Earl, Lord Arran, on his appointment to the Northern Ireland Office and I wish him well in his challenging post. I should like also to take this opportunity of placing on record our appreciation of the work of the noble Earl's distinguished predecessor, the noble Lord, Lord Belstead, during his tenure of office as Minister of State at the Northern Ireland Office.
I now turn to the draft order which is before the House, and I shall not detain your Lordships for long. I believe that the order was considered this morning by the Standing Committee on Statutory Instruments in another place. Perhaps the Minister will confirm—I am sure he can—that it was given a safe passage.
I thank the Minister for his full explanation of the main purport of the order. As he said, it is not a unique order addressing a unique situation or providing a unique answer. It has a precedent in the Anatomy Act 1984. The order extends the provisions of the 1984 Act without a single amendment, so far as I can see, to Northern Ireland. However, it provides that it is not to have any retrospective effect and rightly so. I have not been able to ascertain why it has been necessary to wait eight years for the 1984 Act to be so extended to Northern Ireland. Can we safely assume that the eight year delay was justifiable?
We support the order, but perhaps I may be allowed to mention briefly two other points. First, Article 6 provides that a person, during his last illness may, in the presence of two or more witnesses, authorise his body to be used for anatomical examination. A probate lawyer will be extremely familiar with the need for two witnesses to be present at the same time. It is not clear to me whether the two or more witnesses referred to in Article 6(1) are to be in each other's presence. Perhaps the Minister can clarify that small point.
I was also rather surprised to read in Article 6 that any surviving relative of the deceased may object, in the circumstances set out in the article, to the body being used for anatomical examination. It surprises me that the right to object is not confined to the nearest surviving relative but is available to any relative who can establish any degree of kinship with the deceased. It has occurred to me that that could

1075
lead to difficulties. It probably has not done so otherwise there would have been an amendment to the 1984 Act.
Finally—and possibly this is a point of more substance—should there not be a right of appeal where a licence granted under the order is revoked under Article 9(7)? Whatever be the climate in the last century and whatever the climate in 1984, is it not important in the climate of 1992 that the revocation of a licence should be seen to be fair and to be properly done? To that end it should be possible to appeal the decision.
I have no more questions or comments to offer on the order and I hasten to confirm that we support fully its provisions.
The Earl of Arran: My Lords, I thank the noble Lord, Lord Prys-Davies, for his warm good wishes for the future in what is, as he says, a challenging job. I thank him also for the kind words which he has expressed about my predecessor, my noble friend Lord Belstead.
First, I can confirm that the order was considered in a Commons Standing Committee and was approved.
As regards the other points raised by the noble Lord, he was courteous and thoughtful enough to give me notice of those points, which is helpful to your Lordships' House. The words "surviving relatives of a deceased person" are not defined in the order or in the corresponding Anatomy Act 1984. I agree that any relative can object and his or her objections will be respected. Of course, that applies only to cases where the deceased has not made a written request or an oral request duly witnessed by at least two persons.
The noble Lord inquired also whether both witnesses to an oral request must be present at the same time. I can confirm that is necessary in order to provide proper corroboration of a person's wishes in that particularly sensitive area.
On the question of licences, there is no provision for an appeal against the department's decision not to grant a licence. It is similar to the position in Great Britain where the absence of an appeal system does not appear to have caused any problems. However, where the department decides not to grant a licence under the order, the applicant will be notified in writing of the decision and of the reasons for it.
The first point raised by the noble Lord, Lord Prys-Davies, concerned the question of time and why it has taken so long to introduce the order. It is regrettable that from time to time we experience delay in bringing forward legislation comparable to Great Britain Bills. In this case the delay was brought about by the competition for resources within the DHSS. In the recent past the department had to administer the passage of Orders in Council on health and personal social services and on food safety, both of which were lengthy, complex and essential and had to be introduced by a specific date in order to maintain parity with Great Britain. In addition, six orders subject to negative resolution procedure were introduced. By contrast to that urgency, the existing
1076
anatomy Acts, while in need of updating, provided adequate framework for continuing the practice of anatomy.
I hope that I have been able to answer the majority of the questions asked by the noble Lord, Lord Prys-Davies.
On Question, Motion agreed to.

Maxwell Companies: Pensions
6.51 p.m.
Lord Wigoder Lord Wigoder rose to ask Her Majesty's Government what steps they are taking to ensure that the position of pensioners in the Maxwell companies is fully safeguarded.
The noble Lord said: My Lords, I tabled the Question three weeks ago out of deep concern that the plight of the Maxwell pensioners was not being sufficiently scrutinised either in Parliament or in the media. I hesitate to say that it was entirely as a result of my setting down the Question, but during the past three weeks there has been a great improvement in the situation. Much more information is now publicly available in the area of political discussion than was available at that time.
I make clear that I am not in the least concerned this evening with the issue as to how it may be possible to prevent catastrophes of this kind happening in the future. That is a matter for another debate on another day. I am concerned only with what can be done to help the pensioners in their present position. For that purpose the relevant facts are reasonably clear, give or take the odd £100 million—I suppose "take" is perhaps the more appropriate word in the circumstances than the word "give".
At the time of Robert Maxwell's death there were around 35,000 members of pension funds being operated by companies under Maxwell's control. Of that number some 15,000 were in the Mirror Group Newspapers' fund. That proved to be an enlightened employer and the position of its employees regarding those funds appears to be reasonably secure. Of the remaining 20,000 or so, 9,000 are already pensioners and the other 11,000 members of schemes who have not yet reached retiring age.
Those pension funds appear to have been raided by Maxwell to the tune of something in the region of £500 million, largely by the means—there is no need to go into detail—of the certificates of investments held by the pension funds being deposited by or on behalf of Maxwell in various banks as collateral for loans. The loans were advanced by the banks to Maxwell and used by him in various ways to bail out his failing companies. In the result, the companies having failed or being about to fail, the loans cannot be repaid and the banks are therefore retaining the certificates of investment. The pension schemes have therefore lost their funds.
Situations have occurred where the funds have not been available to meet the pensioners' claims. In April of this year 240 pensioners in a scheme run by a company known as Headington found that their payments to their pensions were suspended altogether.
Next month 5,500 pensioners in Maxwell Communication Corporation are threatened with having their pensions drastically reduced by around 75 per cent.
That is the background to the matter, expressed, I hope the Government will agree, broadly correctly. The second matter with which I hope the Government will agree is that the hardship sustained, and about to be sustained, by those pensioners is intense. It goes without saying that many of them who contributed to pension funds throughout their working lives have now found suddenly and unexpectedly that their homes are at risk because they cannot meet mortgage repayments. They have found that the whole basis of their future family life and security is in danger of being destroyed.
The third factor with which I am sure the Government will agree is that those pensioners are totally blameless. Many of them never worked for Maxwell in the whole of their lives. They were members of companies and retired from those companies years before Maxwell took the companies over and managed to get his hands on the pension funds and assets. Many of them had to join pension schemes as a condition of their employment. All of them regularly paid their contributions prudently and sensibly in the almost certain knowledge that in due course their position would be safeguarded upon their retirement.
In recent months other groups of people have experienced similar misfortunes. For example, there were those who, in a quest for higher interest rates than may have been obtainable elsewhere, invested in Barlow Clowes. Others, in pursuing similar higher rates, deposited money in BCCI. Others, knowing that they were involved in an enterprise that was not by any means risk free, became members of Lloyd's. I do not seek to make any comparisons between those people. I simply draw attention to the fact that in no way whatever can the Maxwell pensioners be criticised for anything that they have done. They are ordinary decent people who led honest, hard-working lives; who were prudent, as they were expected and indeed required to be by their companies, but who perhaps lacked among their number certain influential people who might have been able to raise their plight rather more vocally than has been done up to the past few months. They are people whose futures are in real danger of being irreparably ruined.
The final point with which I have no doubt the Minister will agree is that the situation is urgent. It cannot wait. It is not a question of anyone saying on behalf of the Government that inquiries will be made and that in due course there will be legal investigations of this, that and the other and the position may then be resolved. It is a matter where urgent action is necessary if the position of those pensioners is to be safeguarded.
In those circumstances I ask the Minister whether or not he agrees that the community as a whole has the moral duty in this situation to ensure that those pensioners are safeguarded. If that duty rests on the community then it rests on the Government acting on
1078
our behalf and using, if necessary, the funds which the community contribute to the Government in order to assist those pensioners.
I am old-fashioned enough to believe that it is not for the Government to say that they cannot use government money on this occasion. I do not believe that there is government money, but only money which people have contributed to the Government in order that it should be used as desired by them. Therefore I suggest to the noble Lord this evening that the Government should recognise in the first instance that they have the responsibility to fund any shortfall in the pensions.
I say the responsibility as distinct from the liability. First, I believe that the Government have the responsibility to make up this shortfall forthwith and urgently. The next task of the Government should be to resolve liability issues in order to ensure that they take the lead now in keeping these people in the manner in which they could reasonably expect to be kept. The Government will then be able to recover sums from the various sources which I suggest are available to them. No doubt there are a number of sources which the Government will want to look at. They will want to look at Maxwell's estate, which may take a little time judging by the recent revelations concerning some of the more complicated dispositions of money in Liechtenstein.
Secondly, the Government will want to look at the position of the trustees of the various pension funds to see whether any of them were acting in collusion with Robert Maxwell in disposing of the investment documentation in the way that was done, or to see whether they were negligent in the way in which they carried out their duties. In either event clearly those trustees can be pursued for their contribution to fund the consequences of this disaster.
Thirdly, the Government will no doubt look with care at the role of the Department of Trade and Industry. The pension funds which were raided were managed by two companies, Bishopsgate Investment Management (BIM) and London & Bishopsgate Investment (LBI). They were both Maxwell companies for all practical purposes. He owned 75 per cent. of one of them, and 100 per cent. of the other. In April 1988 the DTI licensed London & Bishopsgate Investment to deal in securities. It did that in a situation in which it must have known that Maxwell had an overwhelming majority shareholding in that company. The DTI must have known that about 17 years earlier Maxwell had been declared a person who was unfit to hold office in any public company.
Having licensed the company in that way, the DTI then handed over its responsibilities for the supervision of those companies to the Investment Management Regulatory Organisation—better known as IMRO. That is the next area where the Government will want to look carefully to see where liability attaches. Almost immediately after the companies were handed over and came under the supervision of IMRO in June and July 1988, that body authorised the two companies to trade. It knew at the time that Maxwell had become not merely the principal shareholder but the chairman of both

1079
companies. It also knew of Maxwell's reputation as it had been ascertained in a previous inquiry many years earlier. IMRO had a very clear duty to supervise the running of those two companies. I understand that an executive of the Association of Mirror Pensioners wrote to IMRO in October of that year suggesting in terms that by investing the proceeds of the pension funds in MCC the pension funds were being placed at risk. The letter asked that an inquiry should be made by IMRO into the operation of those two Maxwell companies.
IMRO made an inquiry and received in return—not entirely surprisingly—a 75-page letter from Maxwell's lawyers. IMRO let the matter rest there for about two and a half years. IMRO made no further inquiries and did not visit the premises again until September 1990. On that occasion these two companies were managing many of the pension funds, and IMRO reported that everything appeared to be in order. IMRO went so far as to say that nothing was known which was adverse to Mr. Robert Maxwell. That was in September 1990. Therefore, there is clearly a case to be looked at as regards IMRO.
There is also the case to be looked at of the banks which accepted these pension fund securities as collateral for loans to Maxwell's private companies. Those matters will have to be examined with considerable care to see whether the banks may have been negligent in doing what they did, and whether they can now be persuaded to refund some of their ill-gotten gains on the very simple basis that the securities they were handling were stolen property.
The last body that the Government might wish to consider is in rather a different category. It is the National Association of Pension Funds (NAPF). I say at once that I do not suggest for one moment that NAPF is in any way responsible for what has happened. It consists of a large number of pension funds almost all of which are run quite impeccably by trustees who are devoted to the interests and welfare of their pensioners. The fact is that those funds handle altogether between £250 billion to £300 billion. Those funds have risen enormously in value over the past year or two as a result of the rise in Stock Exchange values. As a result, many of them are considerably over-funded. Many of them have been able to increase the benefits payable to pensioners. As they have no alternative, companies have been obliged to declare pension scheme contribution holidays.
It is not impossible that a very small voluntary levy might be contributed by those pension funds. That might go a considerable way to help in this crisis. To meet the whole of the amount necessary would be less than 0.1 per cent. of their assets. That would be barely noticed. It would have the effect of only slightly shortening the length of the contribution holiday being taken by the employers. In its way it might resemble the liability which is accepted by all insurance companies by law since the Policy Holders Protection Act passed in 1975 where if an insurance company gets into difficulties levies are made throughout the insurance industry.
I know that it is important not to take any step to discourage companies from operating their own
1080
pension schemes. I also know that the Government are about to embark on new pensions legislation in order to ensure that disasters of this kind never happen again. It might be possible for the Government, when they embark on that new legislation and consult with the NAPC, to discuss with that body whether a small, generous gesture by that association and its members might help substantially to resolve the present position and smooth the path of the legislation which is being considered. Those are the various bodies that the Government will no doubt want to investigate in order to consider from where, in the long term, the resources will come in order to fund the pensions.
There is one other action that the Government could take immediately that would have immediate effect. They could bring into effect by regulation Section 58B of Schedule 4 of the Social Security Act 1990, perhaps retrospectively for a matter of only a month or two. By that means, company pension schemes that find themselves in financial difficulties could become creditors of the parent company. That would be of material assistance, especially in relation to MCC. I understand that that might have the immediate effect of reducing the apparent deficit by something like 50 per cent.; but it is a matter which needs to be dealt with urgently. A regulation would have to be laid. It would have to be laid before the long Recess if it was to come into effect before the long Recess and to have the desired effect. The Government will therefore no doubt want to consider taking that step urgently.
The Government will also want to consider persuading the banks—if they can—to release the securities that they are holding as collateral. They will also want to pursue the other trustees; to examine the role of the Department of Trade and Industry; and, even more critically, that of the Investment Management Regulatory Organisation. They may want to talk to the National Association of Pension Funds to see whether some form of voluntary support can be obtained from the association.
All those steps, if taken, are bound to take some time; but I believe that if they are taken there is a very strong probability that most, if not all, of the appalling deficit will be recovered in due course. The problem is that "in due course" is too long to wait. The need is now and it is urgent. I should like to ask the Government tonight whether they accept that in those circumstances they have the responsibility in the first instance to ensure that payments continue to be made to existing pensioners. I do not believe that a substantial sum is involved at this stage. The payments should continue to be made by the Government while they go about their business of examining the sources from which, in due course, they can be repaid and the pensioners' interests can be safeguarded. It is not any answer for the Government to say—as they have tried to do — that at least the pensioners have the guaranteed minimum pension. That is no help to those who retired before 1978; and it is quite insufficient help to those who have retired since.
I hope that the Government will indicate tonight that they accept that there is a very real problem that

1081
has to be dealt with urgently. I hope that they will recognise that the pensioners cannot be fobbed off with talk about inquiries "taking their course", about "in due course" and about this, that and the other perhaps being done. I ask the Government to come out firmly and to say that they accept the ultimate responsibility on behalf of the community as a whole for the welfare of these unfortunate people.
7.13 p.m.
Baroness Stedman: My Lords, I should like to thank the noble Lord, Lord Wigoder, for the compassionate and constructive way in which he has raised this Question in the House tonight. I have no knowledge of the law affecting pension funds and nor am I a master of high finance, but I do have personal knowledge of some of the people who have been affected by the action of the Maxwell companies. I know only too well of the distress and anxiety that has been caused to many of those pensioners, and especially to those who have now been advised that their payments will cease altogether at the end of this month.
The instance which I know best is of an individual who jointed Atwoods in 1955. In 1960 that firm started a pension fund to which he contributed. The firm was eventually taken over, in the form of AGB Research Limited, by Maxwell. My friend's final period of service was with that company. For 25 years from 1960, he paid into a pension fund which he thought would make his eventual retirement much easier and give him a pleasanter way of life. Fortunately for him, he was also in a position to take out an independent pension, administered by the Norwich Union, which has not been affected by the Maxwell affairs. In that sense he is fortunate because he still has a little additional income. However, the loss of his Maxwell pension, through the takeover of ABC Research plc, and the apparent misuse of that company's pension funds, mean that he has lost over 50 per cent. of his income. That is a distressing situation in which to find oneself after one has contributed for 25 years and been retired for seven years. As the noble Lord, Lord Wigoder, has said action is needed now because the pensions will cease in three weeks' time.
I can understand that the Government want the banks to honour their moral commitment to the Maxwell pensioners but, faced with a massive reduction in their income in three weeks' time, those pensioners want some assurance now that if the banks do nothing the Government will either reimburse the funds or assure the pensioners that they will continue to receive some payment.
The House of Commons Select Committee on Social Services looked at this question before the general election and recommended that the incoming Government should begin discussions with the banks to point out the moral if not the legal responsibility of the banks to return the pension fund assets that are in their keeping. Have those discussions taken place and, if so, have the Government anything to report?
1082
The Secretary of State for Social Security said, when he was the last government's Secretary of State for Trade and Industry, that a Securities and Investments Board inquiry was being made into the conduct of the Investment Management Regulatory Organisation in respect of the Maxwell pension funds and that it would be published. That was two months ago. What progress has been made with that inquiry and when can we expect the report to be published?
The noble Lord, Lord Wigoder, has referred to Section 58B of the Social Security Act 1990. I have a Question down for Written Answer, but I shall be happy if the Minister could answer the point tonight. That provision serves to make pension funds the creditors of companies that have become insolvent. Why cannot those provisions be invoked in this instance?
I accept that the Government are now to review pensions law. I hope that that review will recommend action to prevent future Maxwell-type operations, but it will not necessarily help today's victims. I understand that IMRO will be reporting on its performance and that SIB is still to give its view of IMRO's role. However, it seems to me as a layman that the structure of the regulatory framework shows such weakness that the Government, who have ultimately sanctioned this regime, have some responsibility to the unfortunate Maxwell pensioners.
I cannot help feeling that the leader in Tuesday's edition of the Evening Standard got it about right when it stated:
"The trustees of the Maxwell pension fund were poodles. The auditors were, to say the least, absent-minded. The lawyers were not looking in the right direction. The banks who transferred the pension fund's money looked no further than the face value of the securities they were handling. The Bank of England was doing something else at the time. The Securities and Investments Board was out to lunch … The Investment Management Regulatory Organisation was twiddling its thumbs … The buck was passed from well-manicured hand to well-manicured hand, and it seems to have come to rest in Liechtenstein, where the pensioners cannot get at it."
That is perhaps rather a graphic description, but it sums up the fact that nothing in the regulatory protection mechanism seems to have functioned as it should in this case.
Parliament passed laws obliging employees to pay into a pension fund. Parliament passed laws to protect those funds. Parliament, through its Ministers, did not keep a close eye on the regulators. Therefore, I believe that it follows that, at the very least, Parliament should pay pensions to the several thousand Maxwell employees who are now to be deprived of their retirement pay. I look forward to the Minister's answer with interest.
7.20 p.m.
Baroness Hollis of Heigham: My Lords, I too should like to thank the noble Lord, Lord Wigoder, for tabling this Unstarred Question. I also congratulate him on the appropriateness of his timing. We are all very grateful to him. Robert Maxwell built up his empire in the 1980s largely by acquisition. The 80 or so companies which he acquired had two things in common: for the most part they were associated with

1083
the printing industry, but almost invariably they also had healthy and abundant pension funds. Therefore, as the noble Lord mentioned, men and women who had never worked for Maxwell found themselves and their pensions transferred along with their company to his tender loving care. Their pensions funds were acquired, moved, transferred, lent, diverted, raided, sent abroad or finally declared missing presumed stolen.
It is possible that a bandit with Maxwell's agility would have torn through any safety nets which were set to protect those pension funds. But those safety. nets were thought to be stronger than they turned out to be. They should perhaps have given him more trouble than they did. It is because of that that I want to argue that the law must be changed.
I am well aware that we are judging the situation with hindsight. But the report of the Select Committee on Social Security of another place on the operation of pension funds which was mentioned by the noble Baroness, Lady Stedman, has made it all too clear that various bodies might have exercised a whistle-blowing function. Some of them probably should have done; indeed, the pensioners certainly believe that they ought to have done. However, because there was no overarching body, no one stepped outside their narrow remit until too late.
Who might have signalled the alarm? One turns first to the professional advisers—namely, the lawyers and the accountants working to professional codes who were employed by Maxwell—who might have flagged their concerns. For example, the accountants (an outstandingly reputable firm) nonetheless serviced both the Maxwell companies and the Maxwell pension funds, despite what was to become, with hindsight, a conflict of interest.
Accounts for the year ending 5th April 1990 were received well over a year later. The management letter voicing areas of concern, which might be thought somewhat to have qualified those accounts, was not seen by the pensioners and it is not clear that it was even seen by the trustees. Therefore, the trustees were unable to detect until too late that Maxwell had moved pension funds out of the top 100 companies—a warning signal which might have been given by the accountants that came too late.
The next whistle-blower might have been the Occupational Pensions Advisory Service, a body set up to liaise between pension schemes and their members when there is a breakdown in communications. The advisory service was contacted back in March 1990 by one of the Bristol companies taken over by Maxwell in 1987. The advisory service might have used that early warning to indicate concern and to scrutinise the patterns emerging in the Maxwell pension funds. It did not do so, and another opportunity was lost.
I turn next to the Occupational Pensions Board. Its function is to ensure that schemes have enough resources to guarantee the minimum pension, within the broader considerations of gender, equity and the like; that it is checked annually. That in turn presumes a company's financial health. The OPB might perhaps have taken a wider view of that role than it felt it could
1084
do given its resources and its` remit. Back in 1982, the OPB had been calling for the abandonment of trust law as a framework for the pension industry (a framework that permitted the Maxwell defalcations), but by 1989 it had changed its mind, which is regrettable.
The OPB clearly took a scrupulous reading of its role. Not so the next possible whistle-blower; namely, IMRO, the investment management regulatory organisation body which carries the regulatory functions sub-contracted by government under the Financial Services Act 1986 to the Securities and Investments Board. Its job was to vet business records, the reputation, integrity and competence of management. As Sir Leon Brittan said in another place at the time:
"Powers will be transferred to the agency only if the Secretary of State is satisfied that the agency's rules were adequately protecting investors".
Yet, despite the DTI report of 1971 mentioned by the noble Lord, Lord Wigoder, which stated that Maxwell should never again be regarded as fit to run a public company, the DTI licensed London and Bishopsgate Investment Limited three days before the Financial Services Act 1986 came into force. Moreover, IMRO licensed Bishopsgate Investment Management thereafter, even though the first company was 75 per cent. and the second 100 per cent. controlled by the Maxwell family. IMRO said that "nothing adverse" was known—a judgment that strains credulity. Either IMRO was not given sufficient powers to protect pensioners, in which case the Government defaulted on their responsibilities under the 1986 Act, or IMRO was given sufficient powers but it failed to exercise them. In that case, IMRO, the sub-contracting regulatory body, defaulted. Can the Minister tell the House which of those he thinks is the more appropriate explanation? Can he also tell us what he believes the standing of IMRO to be? The Select Committee in another place said that IMRO had no real understanding of what it was approving for membership. Does the Minister agree?
I now turn to the banks. The great commercial banks are powerful professional bodies. They lent large sums of money to Maxwell secured by pension funds. Did no bank ever see or ask to see any consolidated accounts, all the assets or all the debts? Moreover, what of the role of the Bank of England? It is widely believed by newspaper financial commentators that it played far too passive a role; it cannot, it should not, but it did stand aside from issues vitally affecting the integrity of the City.
I turn finally to the Government. Here it may be thought, as the noble Lord, Lord Wigoder, already argued, that the Government defaulted on the responsibilities which were uniquely their own. Their superannuation fund office might, as the Select Committee's report says, have undertaken a policing role. But it did not, given its resources. Moreover, the Government stood behind IMRO, and IMRO failed to provide the industry with the regulatory powers that it was widely believed to hold. Again, as the noble Lord, Lord Wigoder, mentioned, the Government had the capacity to put in place much earlier the Social Security Act 1990. They failed to use the protective

1085
framework that the Act permitted. Only very belatedly have the Government brought into play the rules limiting self-investment to 5 per cent, and the crucial Section 58B mentioned by both previous speakers has still not been brought into force.
We all appreciate that companies which fund all but a small fraction of their pension schemes may collapse. But as the Secretary of State for Social Security, Mr. Tony Newton, said in another place, that is precisely why we need to avoid double jeopardy —that when an employee's company and his job disappear, his pension should not be taken as well. That is why Section 58B is so significant. It would have ensured that any default in pension schemes would have become the debt of the company. If Section 58B were to be put in place speedily, it would do much to reduce the hardship of the Maxwell situation.
But, over and above that, the Government have a liability. I say that because the Government have failed to take due regard of EC Directive 80/987 which required member states to protect the pay and pensions of employees in the event of the insolvency of their employers. That was due to take effect by 1984. The Government have not introduced that protection. Cases have been fought and won in Italy on the basis of that directive; but here that directive has afforded no such protection.
The Government also have a wider responsibility because trust law was devised by medieval England to protect the real property of the legally incompetent, women and children; it was stretched in the 20th century to apply to occupational pension funds, but it has proved too frail a framework. A sequence of committees and reports have called on government for a new legal framework for pensions—for example, the Wilson Report in 1980, the OPB in 1982 and the Gower Reports of 1982 and 1984—but the Government have done little or nothing. So lawyers and accountants and the formal and statutory bodies, like the OPAS, the OPB, IMRO, the banks, the Bank of England, the DTI and the Government, have collectively failed the Maxwell pensioners. Just because no one had collective responsibility, just because there was no overall regulatory responsibility, Maxwell could and did make mayhem.
I repeat that we are judging the Maxwell situation with hindsight, but every financial figure I know fears that there may be other Maxwell type situations lurking; not so huge perhaps, but lurking with the potential problems to shadow the pension scene.
Sir David Walker, the departing chairman of the SIB has, in his annual report published in today's Financial Times noted exactly that—that the regulatory structure of the industry is too fragmentary and its splintering undermines its effectiveness.
So the system has failed the Maxwell pensioners. Headington pensioners have already had their occupational pensions stopped. Several thousands this month, as the noble Baroness, Lady Stedman, has mentioned, can expect to see their pensions reduced by some 70 per cent. Mr. John Smethhurst, of the Manchester Action Group, reports one disabled
1086
pensioner of 78 with an ailing wife of 80 who can neither sell his flat nor afford its service charges—who having retired before SERPS, cannot even receive the guaranteed minimum pension. This disabled 78 year-old is now "looking for work".
The Government have to act fast as pension companies, I understand, are deluged with pensioners seeking to remove their moneys, fearful of the Maxwell fate. The industry needs stability and confidence to be restored because, after all, after a house pensions represent the biggest financial personal investment anyone makes and represent, collectively, some 70 per cent. of the equivalent wealth tied up in the nation's housing stock.
So it is a matter of public policy because society wishes to protect against poverty in old age and the vehicle for that is the pension. If that framework is insecure, as it is now, so will be that individual provision—that individual willingness to save against one's old age. It is also a matter of public policy because, as the noble Baroness, Lady Stedman, said, before 1988 all employees were required to contribute if their employer offered an occupational scheme. They had no choice in the matter.
It is also a matter of public policy because, as with the Barlow Clowes affair, a regulatory agency set up via the SIB by government had responsibilities subcontracted to it by government on which it may have been negligent. Just as the DTI accepted a degree of culpability in the Barlow Clowes affairs, we are dealing with investors who were seeking to speculate. How much more, then, is the culpability when dealing with employees and the elderly who are seeking only to provide security and safety for their old age?
The letter dated 6th April 1992 from Sir Robert McCrindle on behalf of the Prime Minister suggested precisely this. The letter suggested that an elector, through his MP, should approach the Ombudsman,
"either by the Department of Trade and Industry or IMRO, then, of course, we may be in a similar situation to that which prevailed in the case of the Barlow Clowes investors".
Sir Robert McCrindle added,
"I hope you will ponder this thought".
Will the Minister perhaps comment on that letter and especially the significance of that last sentence which clearly invites electors and others to make an approach in the expectation that the Government accept some culpability for the situation.
If, then, the Maxwell affair is a matter of public policy, which I hope to have argued, may we now ask Ministers what the Government will do? The Minister will, of course, observe the existing statutory obligations to ensure the guaranteed minimum pension; the equivalent of SERPS. He has no choice, it is his statutory obligation. But at best, as has already been said, this will provide only 15 per cent. to 20 per cent. of the pension that might otherwise have been enjoyed because SERPS, of course, has not matured. What will the Minister offer to those who retired before 1978 who will otherwise get absolutely nothing? In the interim it is clearly not acceptable, as the noble Baroness, Lady Stedman, and the noble Lord, Lord Wigoder, said, that the elderly should face severe hardship. Therefore, will the Government keep the funds open so they may pursue their debts? Will

1087
the Government "drip feed" for this purpose as recommended by Tory members in another place? Or do they perhaps have other ways of keeping these funds open?
Will the Government employ Section 58B of the Social Security Act 1990—I understand that no question of retrospectivity arises—so that pension plans may become creditors of the Maxwell company assets? Alongside that, can we expect the Bank of England to exert pressure on commercial banks to return some of the securities it received on behalf of the Maxwell companies to ensure continued pension payments? I understand that the bank is holding £217 million and here I think one should pay tribute to the noble Lord, Lord Alexander, of the National Westminster Bank, who has said he recognises the moral as well as the legal considerations that are engaged in this situation.
Will the Government commit themselves to a major reform of pension law? That might, for example, introduce stricter controls over stock lending. It might produce a limited number only of standard schemes for trustees, rather than the employer free-for-all. It might, for example, have 50 per cent. of trustees representing employees and pensioners. It might require independent trustees and an independent chairman. It might require that such trustees be properly trained and that they and the pensioners be given annual reports and annual accounts with appropriate expedition and which might also require that professional advisers might not be placed into a potential conflict of interest simultaneously advising both company and pension funds, thus to reconstruct the Chinese wall.
In such legislation do the Government propose to strengthen the regulatory functions needed; perhaps not only a strengthened OPB properly resourced in order to monitor, strengthen and support trustees, but alongside it an independent pensions tribunal to consider pension disputes —for example, on the control of a scheme which is beyond the reach and range of a pension ombudsman and perhaps on the model of the employment appeals tribunal? Given that all employees must now have an employment contract, should not legislation require that such an employment contract would spell out the contributions and defined benefits associated with its pension scheme?
Finally, will the Government encourage industry to set up a compensation scheme for fraud, funded by a levy on the industry analogous to the situation in the United States, Japan, France, Germany and most of Europe? Perhaps it could be modelled, as mentioned by the noble Lord, Lord Wigoder, on the Policy Holders Protection Act 1975 which performs a similar function for life assurance. The managers and beneficiaries of the better pension schemes may be unenthusiastic but, as with ABTA bonding for package holidays, it is now vital to reassure pensioners that their deferred pay is safe from fraud.
Three years ago, encouraged by the Government, people put their savings with entire confidence into buying their homes —"as safe as houses"—and into
1088
their pensions. To paraphrase Nye Bevan, it takes a disaster to destabilise the one; it appears to have taken a Tory government to have destabilised both.
7.37 p.m.
Lord Henley: My Lords, I am most grateful to the noble Lord, Lord Wigoder, for raising this Question and giving us the opportunity this evening to discuss the problems and potential problems facing so many of the pensioners and pension scheme members of Maxwell companies.
Perhaps I may first say that Her Majesty's Government do totally share the deep concern that has been expressed by all speakers about the potential serious loss of pension rights facing many thousands of those scheme members because of what appears to have been a gigantic fraud perpetrated against them. I can assure the noble Lord, Lord Wigoder, that we also recognise the urgency of the situation and the need to act quickly.
A number of points have been raised which I should like to deal with in turn before I set out what the Government are doing and how we see the issue. First, I turn to the suggestion by the noble Lord, Lord Wigoder, that the National Association of Pension Funds (NAPF) might consider providing some sort of safety net out of the vast assets of its extensive number of members; assets which he estimated at about £300 billion. I certainly would not dispute that figure with the noble Lord.
There is a problem, as the noble Lord will know, in that pension funds are held in trust in the interests of their members and therefore, under present trust law, it would not be possible for trustees to give money to other pension funds. Certainly we take note of the noble Lord's suggestion and it is one aspect that could be considered in the review of pension law to which I shall be referring later, which was mentioned by the noble Lord and others.
Secondly, all three speakers mentioned Section 58B and asked whether the Government should consider bringing that into effect as soon as possible. We are actively considering what action should be taken and will take note of the comments made this evening; but I must stress that there is a large caveat in that the powers under Section 58B of the 1990 Act are limited and would not necessarily guarantee the return of the missing money. That would depend upon what assets there were and what preferential creditors there are who will be higher in the list than pensioners. I think I am right in saying that the powers under Section 58B relate to an ordinary debt and not a preferential debt.
I appreciate that the noble Baroness, Lady Stedman, has put down three Questions for Written Answer. I hope to be able to answer them shortly. I have answered the Question on Section 58B to some extent already. Two of the Questions relate to the responsibilities of my department and one to those of another department. I hope that we shall be able to respond to her shortly; and I apologise for not being able to respond before she spoke.
The noble Baroness, Lady Hollis, also referred to various bodies which might have called attention to the problems. Investigations are under way, as she will

1089
be aware, to discover what went wrong; but at the moment I prefer to confine my comments to the effects of what happened and leave the investigations to determine the cause. As I understand it OPAS was a voluntary body, and I do not see its duty to be the Government's watchdog.
The noble Baroness mentioned the letter from Sir Robert McCrindle. We feel that enough inquiries are under way at the moment without adding any more. We do not accept that there is evidence of maladministration by a government department. We have also been advised by the Parliamentary Commissioner, who I understand issued a press release to this effect earlier today, that the activities of IMRO are outside his jurisdiction. In other words, he cannot look at its activities. I hope that the noble Baroness will accept that as the ombudsman has said that the matter is beyond his remit, that must be the case.
Baroness Hollis of Heigham: My Lords, I thank the Minister for giving way. Why did Sir Robert McCrindle, writing on behalf of the Prime Minister, not apprise himself of that fact before advising electors that that was the way they should pursue their legitimate grievances against the Maxwell administration?
Lord Henley: My Lords, I cannot answer for Sir Robert McCrindle who after all is not a member of the Government and who was writing in his private capacity, albeit on behalf of the Prime Minister, during the course of the election campaign. Our advice from the Parliamentary Commissioner is that he does not have the power to investigate IMRO's activities.
As I said, I think it would be helpful to put on record the Government's current understanding of the scale of the problem being faced because of the Maxwell affair. The noble Lord, Lord Wigoder, spelt out what he saw to be the scale of the problem, and I am broadly in agreement with him. However, as I am speaking on behalf of the Government it would he helpful for me to spell out in broad terms what we see the issue to be. There are some 35,000 people (pensioners, pensioners' dependants, employees and former employees) who have claims on funds from which Maxwell took assets. Of those affected, just over 15,000 are pensioners or their dependants. Of those 15,000, approximately half are likely to have their pensions rebuilt by the employers concerned—the noble Lord mentioned the Mirror Group—or there will be sufficient funds for the full payment of pensions. That estimate is based on the funds currently likely to be available to Maxwell schemes. Clearly, if substantial assets were to be recovered, the situation would improve dramatically.
As the House will be aware, the definitive picture of how the crime took place and the overall situation facing Maxwell pensioners are still not clear. The Serious Fraud Office is still pursuing its investigations into that complex matter. The report on the actions of IMRO has not yet been published. It is for IMRO and SIB to decide when it should be published, and I hope that it will be published soon. The process of
1090
identifying missing assets, establishing their ownership and, wherever possible, securing their return to the pension funds where they were originally held will take a considerable time to achieve.
The noble Lord mentioned the banks' moral obligations. That was a matter raised by Mr. Frank Field and others when they saw my right honourable friend and it is a point that has been passed on to my right honourable friend the Chancellor of the Exchequer.
Many of the powers under the Financial Services Act, including the power to recognise IMRO and the other self-regulating organisations, have been transferred to the SIB. SIB is conducting with IMRO detailed reviews of IMRO's exercise of its regulatory responsibilities for Bishopsgate Investment Management Limited and London and Bishopsgate International Investment plc, covering both the operational aspects and the appropriateness of the regulatory regime. Full reports of the findings and conclusions will be published. I cannot comment on the part IMRO may have played, as the noble Baroness, Lady Hollis, requested, until that report is published.
It is also important to note that the sooner it is possible to resolve the more tractable questions of ownership the sooner the many pensioners who have not been reassured that their pensions are safe can be saved the anguish of uncertainty. It is the uncertainty which is the principal problem for many people at the moment. In those circumstances, I am sure that the House will agree that it would be wrong for anyone deliberately to seek to protract legal disputes. The Government therefore look to everyone involved to resolve those uncertainties as quickly as possible. The more that advice is heeded, the more pensioners can be rescued from uncertainty.
In saying that, I do not overlook the current hardship being faced by some Maxwell pensioners, not merely in terms of anxiety and uncertainty but in terms of the pensions that have been lost. To date, all Maxwell pension schemes have continued to pay in full those pensions which were already in payment. The one exception, which was mentioned by the noble Lord, Lord Wigoder, and the noble Baroness, Lady Stedman, is the Headington Pension Scheme whose 240 pensioners have not been paid their May or June pensions. The pension scheme trustees, with whom close liaison is maintained, hope that they may recover sufficient to resume payments to their pensioners. Because of the current shortfall of funds, however, those pensioners with guaranteed minimum pensions have been brought back into the state scheme and, where appropriate, SERPS will now be paid directly by the DSS. We expect those payments to start this month.
The noble Lord, Lord Wigoder, pressed me as to whether I agreed that the Government and the taxpayer have a moral duty to find the money to top up those funds. It must be remembered, as I said, that a number of detailed investigations into the Maxwell pension funds are under way. We need to establish what went wrong and how much of the funds will not be recoverable before we decide whether to take any

1091
further action. It would not be right at the moment to use taxpayers' money when it is not yet clear whether the pension funds are due money from the banks.
It is also worth emphasising for the record the procedures that are followed when a contracted-out occupational scheme like the Maxwell scheme is in the process of being wound up. Existing legislation provides protection for those members of pension schemes who have been contracted out of the state earnings pension scheme, SERPS, which was introduced in 1978. If a scheme is wound up, there is statutory provision designed to protect the guaranteed minimum pension which contracted-out schemes are required to make.
If there are not sufficient funds in schemes to secure that level of pension, the Government ensure through SERPS that scheme members receive a pension equivalent to that which they would have received, had they remained in SERPS and not joined a contracted-out scheme. So no one will be worse off than they would have been had they remained in SERPS.
I accept that, as all noble Lords mentioned, there will be a number of pensioners who were members of schemes and who retired before 1978 and therefore do not qualify for this protection. I also accept, as various noble Lords said, that only a small fraction of the current occupational pension of many will be made up by the SERPS entitlement. I should be the last to pretend that this provision, in itself, is in any sense a remedy for the terrible situation faced by Maxwell pensioners. But I think it is important to put on record the protection that is currently offered by the present scheme.
We recognise that there may be many pensioners who are already facing severe financial difficulties as a result of Maxwell. I mentioned the 240 members of the Headington pension scheme who lost their May and June pensions and there will be others who will possibly lose 70 per cent. of their June entitlement. For this reason we have alerted all our Department of Social Security benefit offices to the difficulties facing Maxwell pensioners and the fact that they may need access to help on an urgent basis, where payment of their full pension has been interrupted.
Obviously I cannot comment on an individual disabled pensioner who is suffering severe problems and who was mentioned by the noble Baroness, Lady Hollis. My advice would be that he should contact his local social security office which will be able to advise him, or anyone in a similar position, on any benefits for which they may be eligible, in addition to their state pension. Income support ensures a minimum income and automatic entitlement to help with rent or mortgage.
Those not entitled to income support because they have other resources may be entitled to other help—for example, with housing costs. We have amended the income support rules to ensure that anyone in financial difficulties because of a temporary break in their occupational pension payment can claim full income support entitlement immediately.
I have indicated that the trustees of the Headington Pension Plan hope to be able to resume payments in
1092
the future. I am also aware that the other pensioners who have been mentioned —4,000 pensioners in the Maxwell Communication Works Pension Scheme—are facing the prospect from July of reductions of 70 per cent. The noble Lord mentioned a figure of 75 per cent., the figure I have is 70 per cent. It is slightly academic, but I wish to have that on the record.
In regard to this, it should be emphasised that there is no question of any of the Maxwell pension funds being wound up immediately because of lack of funds and their trustees not being able to pursue the recovery of assets. Recent legislation has ensured that pension funds appoint independent trustees whose principal and continuing obligation is to seek the return of assets. We are in close contact with all trustees and none has indicated that there is any danger of funds ceasing to pursue the assets. The process in which the Maxwell pension funds are engaged is likely to take some time, possibly years, finally to complete. But we shall keep a close eye on these developments.
I trust that what I have said clearly indicates the current degree of protection that is offered by statute to the Maxwell pensioners and pension scheme members. As I have also indicated, we consider it very much a priority to resolve the question of the return of assets to pension funds as quickly as possible, wherever that is justified.
The noble Baronesses, Lady Stedman and Lady Hollis, raised the matter of the Select Committee on Social Security and its report on The Operation of Pension Funds. It made a number of recommendations on the action the Government as a whole should take in relation to the Maxwell affair. Indeed, it focused attention very much on the whole framework of law and regulation of occupational pension schemes.
One of the committee's recommendations was that there should be a review of this whole area. The House will be aware that we made a commitment to hold such a review in our election manifesto. We shall shortly be announcing details of the review and responding to the detailed recommendations of the Select Committee. I think that would be the time when it would be wise to consider whether or not—as the noble Baroness, Lady Hollis, said—the trust law is appropriate or what reforms are necessary. I do not believe that the noble Baroness can expect me tonight, in repeating our election pledge that there will be a review, to say exactly what will be its outcome. Obviously, the point of a review must be to come to various conclusions after carefully considering all the items that are relevant.
In the meantime, we shall take what further action is appropriate as the Maxwell situation develops and keep the plight of pensioners of the schemes concerned closely under review.
Lord Carter: My Lords, before the noble Lord sits down, I apologise for intervening. He will remember that he and I, together with the noble Earl, Lord Russell, took the Social Security Act 1990 through the House. It included the power for the Government to introduce by regulation the restriction of pension funds to 5 per cent. self-investment. The regulation has now been introduced, after two years. The power

1093
was given in the 1990 Act and the Minister has not answered why the regulation was not introduced sooner.
Lord Henley: My Lords, the noble Lord will be aware that the limitation on self-investment to 5 per cent. is much more complicated than it might originally have appeared to him, the noble Earl, Lord Russell, and myself when the 1990 Act passed through the House. I do not know whether the noble Lord can remember, but in correspondence which I had with the
1094
noble Lord, Lord Stallard, he mentioned a particular pension fund which wholly owned its parent company because the original owner of the company had generously given it to the pension fund. One had to look at a vast variety of problems which arose and therefore it took quite a long time, as the noble Lord knows. The regulations have now been brought forward, but whether they would have made any difference in this case, I do not know. I hope that the noble Lord is satisfied with that.
House adjourned at two minutes before eight o'clock.