Lords Sitting of 19 May 1992

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Lord Cadman Lord Cadman—Sat first in Parliament after the death of his father.
Lord Macpherson of Drumochter Lord Macpherson of Drumochter —Took the Oath.

Smoking on Trains: BR Policy
Lord Orr-Ewing Lord Orr-Ewing asked Her Majesty's Government:
Whether they agree that British Rail should ban smoking on all journeys of less than 90 minutes.
Viscount Astor: My Lords, it is for the British Railways Board to determine whether smoking should he permitted on trains. In doing so it takes due account of its passengers' wishes. There is a ban on Network SouthEast's inner suburban services. I understand that British Rail has no plans to extend that ban.
Lord Orr-Ewing: My Lords, is my noble friend aware that although I am not a smoker I ask the Question because of my need to protect minorities? Is he aware that British Rail is progressively making smoking more difficult for the 20 per cent. minority who wish to smoke on trains? Is that desirable at a time when British Rail wants to please the clients in order to attract people to return to the railways as more money is invested in them and as our roads become more crowded?
Viscount Astor: My Lords, in response to market demand and to save on the cost of train cleaning, smoking has been banned on inner suburban routes in Network SouthEast. Market research suggests that 77 per cent. of passengers are in favour of the ban. BR believes that the ban may have attracted more customers to its services.
Lord Mason of Barnsley: My Lords, is not the banning of smoking on trains, a unilateral imposition, a form of dictatorship? Bans are imposed without consulting the smokers concerned, about one-third of the travelling public. Does the Minister agree that British Rail should be legally bound to make provision for smokers? After all, smokers have rights too; the right to enjoy smoking tobacco whenever they wish.
Viscount Astor: My Lords, smoking is allowed on all InterCity services. It is banned only on short journeys.
Lord Harris of High Cross: My Lords, speaking as a member of the noble Lord's endangered minority, does not the Minister's answer totally contradict the Citizen's Charter, which refers to all public services? Those services are required to make better provision
542
for all users and "wherever practicable" they should provide for choice. In particular, it is stated that BR will
"seek to make its services to the public friendlier and more personal."
In the section dealing with prisons it is stated that,
"all citizens are entitled to consideration, including those who offend against the law."
Does the Minister acknowledge that, although the rights of prisoners are allowed for in the charter, British Rail's approach, which is in violation of the charter, regards smokers as non-citizens?
Viscount Astor: My Lords, British Rail must respond to its market and to its users; its philosophy must be market-driven. It is for British Rail to decide whether to impose bans on particular services. Obviously it must take into consideration all its users. It is for British Rail to decide whether it is acting in line with the Citizen's Charter.
Baroness Robson of Kiddington: My Lords, the Minister replied that one of the reasons for banning smoking was that trains would be less dirty. Does he agree that in addition to cigarette ends on the floor there are sweet papers and so forth? Why does British Rail not place a receptacle in every compartment?
Viscount Astor: My Lords, the noble Baroness makes a good suggestion. I understand that in non-smoking carriages less litter is dropped because people do not see cigarette butts on the floor and are less inclined to drop sweet papers and so forth.
Lord Kinnaird: My Lords, does my noble friend agree that when certain people enjoy certain pleasures there is always a body of other people wishing to stop them doing so? Is that not somewhat dog in the manger and what will British Rail's position be when a train breaks down?
Viscount Astor: My Lords, I know that my noble friend indulges in many pleasures including, probably, smoking on trains. I hope that he will be able to continue to indulge in most of those pleasures. The breakdown of a train is a different question but as I know that my noble friend travels to Scotland he will not be affected because one can smoke on InterCity services.
Lord Stoddart of Swindon: My Lords, is not British Rail proposing that there shall be no smoking on journeys lasting less than 90 minutes? Is that not an absurd restriction to place on the travelling public who smoke? Should not British Rail be encouraging people to use the railways instead of their cars in the interests of the prevention of pollution rather than discouraging them, particularly in central London, where the pollution is very bad indeed?
Viscount Astor: My Lords, the noble Lord, Lord Stoddart, is right. It is extremely important for British Rail to encourage people to use its services. It is also important that it should take into account the views of its passengers. It is not possible to keep all its passengers happy all the time, for many reasons. The decision on whether to ban smoking on suburban

543
journeys is not based on time but on distance. As noble Lords will be aware, sometimes time and distance on British Rail can be two different things.
Lord Stoddart of Swindon: My Lords, is the noble Viscount not aware—
Lord Marsh: My Lords—
Noble Lords: Order, order.
Lord Stoddart of Swindon: Over the past 160 years, British Rail—
Noble Lords: Order, order.
Lord Stoddart of Swindon: —has been able to satisfy its customers by having smoking and non-smoking carriages on all its rail services?
Lord Marsh: My Lords, perhaps this is more a question which is properly addressed to the Leader of the House but if, as the Minister says—and I suspect he may well be right—he has no responsibility in this matter, is it his intention to answer questions generally on behalf of British Rail? Should this Question be on the Order Paper? I am slightly puzzled.
Viscount Astor: My Lords, the noble Lord has great experience as regards British Rail. It is my job to try to answer the Question on the Order Paper.
Lord Brabazon of Tara: My Lords, is my noble friend aware that whether or not British Rail intends to ban smoking on Network SouthEast journeys of less than 90 minutes' duration, it is already surreptitiously doing so by the simple means of not providing enough smoking compartments?
Viscount Astor: My Lords, British Rail monitors the level of vacant seats in both smoking and non-smoking compartments in order to determine the relative demand.
Lord Clinton-Davis: My Lords, is the Minister aware that this terrible dictatorship has been extended to theatres, where there are prohibitions or partial prohibitions, to London buses, and, indeed, elsewhere? Is the Minister further aware that the noble Lord, Lord Harris, has given a remarkable new insight into the purpose of the Citizen's Charter? Indeed, that seems to be its only purpose. However, will the Minister enter into discussions with British Rail to see that the number of non-smoking compartments is, at the very least, increased in proportion to those where smoking is permitted?
Viscount Astor: My Lords, I shall certainly draw to the attention of British Rail the questions which have been asked in your Lordships' House.
Lord Orr-Ewing: My Lords, will my noble friend bear in mind that all the European countries allow designated carriages for smoking? Will he perhaps draw to the attention of British Rail that when it is running trains through the Channel Tunnel, there should be a half-way mark at which point smokers may light up?
Viscount Astor: My Lords, as always, my noble friend offers an interesting view regarding British Rail. I shall bring the noble Lord's remarks to the notice of Sir Bob Reid, the chairman of British Rail.

World Population: Initiatives
2.45 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What further initiatives they are taking to deal with problems caused by the increase in world population.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we are continuing to increase significantly our support to population programmes and reproductive health services in Africa and Asia, to the UN Population Fund, and to non-governmental organisations. Last year UK population assistance to developing countries exceeded £26 million—the highest ever. We are also working closely with the European Commission to develop a stronger commitment to population assistance within the Community as a whole.
Lord Dormand of Easington: My Lords, I welcome the Minister as she answers her first Question in this House on population, because we are aware of the great interest that she has shown in another place regarding this important issue. Is she aware that the United Nations Population Fund's report published last week confirms what many people have been saying for a long time—that is, that educating women, and giving them access to family planning and health services, is the key in trying to prevent the catastrophe which will occur if nothing is done about world population? I welcome the £26 million to which the noble Baroness referred. Does she accept that the countries involved are not doing enough, and that in our case we should be taking the world lead in this very important matter?
Baroness Chalker of Wallasey: My Lords, to answer the noble Lord's last question first, we are increasing our support for family planning activities faster than any other country. We are also encouraging other countries to increase their support not only for the United Nations Population Fund but also for the International Planned Parenthood Federation, the WHO Human Reproduction Programme and for non-governmental organisations like Population Concern. What the noble Lord, Lord Dormand, said about women is true. The more you enable women to continue in their education, to take up jobs, to start small businesses, the more you give them good mother and child health care advice, the less children they wish to have and the more likelihood there is that the children which they do bear will survive.
Lord Hylton: My Lords, following the reply of the noble Baroness, am I right in thinking that the Government recognise that such factors as clean

545
water, immunisation, primary health care and even pensions have a strong bearing on population policy? Will the Government ensure that those factors are discussed in international dialogues?
Baroness Chalker of Wallasey: My Lords, I thank the noble Lord for his question. He is right. Clean water, which enables the milk substitutes to be properly mixed for the benefit of children, immunisation which prevents illness, and indeed some security in old age, do a great deal to discourage the continuous reproduction that many women suffer against their wishes, particularly in developing countries. That is the reason we produced a pamphlet last year called Children by Choice Not Chance. That pamphlet was used for debate in all international fora and it will form part of our discussions at the Rio Earth Summit. It is essential that it should do so.
Lord Rea: My Lords, following the question of the noble Lord, Lord Hylton, perhaps I may ask this. Is the noble Baroness in full agreement with me and many others who believe that the best way of providing family planning advice and supplies is through a network of primary health care being made available to all members of the population? I am aware that the Government, at least verbally, support the WHO goal of health for all by the year 2000, which I take to mean accessibility of basic health care to everybody in the world. What steps are Her Majesty's Government taking towards achieving that desirable goal?
Baroness Chalker of Wallasey: My Lords, primary health care is the basis not only of smaller and more healthy families, but also of a happier society in the third world. We are increasing our support not only for reproductive health programmes, but also for that primary health care. For instance, our contribution to the United Nations Children's Fund—UNICEF—will ensure that this year £9·5 million, the highest amount ever, will be fed in not only bilaterally, but also through the multilateral agencies to improve women's health services alongside child survival. That is done mainly through the primary health care units.
Lord Marlesford: My Lords, does my noble friend agree that when everything that can be done has been clone, the harsh reality is that world populations will he limited either by starvation or by birth control? By any ethical standards, particularly the Christian ethic, birth control is surely the kinder of the two.
Baroness Chalker of Wallasey: My Lords, we prefer to talk of family planning and not control. It is fundamental to our policy that family planning should not be coercive; it should be by choice. That is the reason it is right to make family planning devices and advice available, and to improve mother and child health care wherever that is needed. It is much more than throughout the third world; it is in Central and Eastern Europe and also the former Soviet Union.
Lord Judd: My Lords, does not the noble Baroness agree that, as the World Bank said yesterday, it is not just a matter of better educational facilities for women? But there should also be improved living
546
standards for the poor generally in the third world to ensure that those children have a better prospect and chance of surviving. Against that challenge, can the Minister give the House some reassurance that the Government will reverse the disastrous trend in our aid budget, which is down to 0·27 per cent. of GNP, and move towards the UN target of 0·7 per cent.?
Baroness Chalker of Wallasey: My Lords, the Question certainly concerns population. However, the noble Lord, Lord Judd, is right that the overall economic situation affects the size of families particularly in the developing world. Let me put on record that the average over the past five years is 0·3 per cent. of GNP. We all know the reasons. In the last quarter of 1990, we did not make certain payments which were made in the first quarter of 1991, giving rise to the figure that he mentioned. I can assure the noble Lord that we are now spending our aid better; it is better targeted, and we are obtaining better value for money out of it. As growth comes, so we do more for the developing world.
Viscount Craigavon: My Lords, does the Minister accept that international organisations such as the UNFPA and IPPF estimate that within the next decade at least 200 million new couples will want contraceptives in addition to the existing users? Does the Minister also accept that that is the scale of the problem, and whatever fine words and declarations emanate from conferences, armchairs or even pulpits, that need will still remain?
Baroness Chalker of Wallasey: My Lords, I accept what the noble Viscount says. That is the reason we are engaging in new projects in those countries that particularly need family planning, clinical equipment and supplies as well as advice. We have a programme which certainly bears good comparison with others. I hope to extend it still further above the record figure that we achieved in 1991.
Lord Cledwyn of Penrhos: My Lords, the most reverend Primate the Archbishop of Canterbury made a statement of the first importance on this subject last week. Can the noble Baroness explain to the House where the Government stand, and whether or not they support that statement?
Baroness Chalker of Wallasey: My Lords, the most reverend Primate made an interesting, fundamental and important statement. We fully agree with much of it. It is fair to say that we shall continue to try to respond with all the help which is needed by the 200 million people who want family planning advice and who cannot obtain it.
Lord Molloy: My Lords, does the Minister agree that many religious organisations related to the United Nations believe that where one can increase education and raise standards of living, that appears to contribute to a lessening of the huge increases in the birth rate? Therefore is it not sensible to help people achieve better standards of living and improve their education to enable us to achieve what everybody in the House wants?
Baroness Chalker of Wallasey: My Lords, yes.

EC Legislation: Scrutiny and Debate
2.58 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
In respect of the meetings of the European Community's Council of Ministers held in the year 1991, how many legislative instruments were signed without debate or discussion in Council prior to their issue to individual member states, and how many were issued after discussion and debate.
Baroness Chalker of Wallasey: My Lords, approximately 300 items of legislation were adopted by the Council in 1991. Some of those items, mostly of a routine nature, were formally adopted without debate by Ministers in the Council, but only following detailed discussion at official level. Even in such circumstances discussion in the Council is not ruled out should any member state wish to initiate it. The precise figures requested by the noble Lord are not available.
Lord Bruce of Donington: My Lords, I am grateful to the noble Baroness for her reply. However, is it not the case that literally hundreds of legislative instruments of varying importance are being discussed in private by the Commission and the Committee of Permanent Representatives behind closed doors? The legislation is then commended by them to the Council of Ministers as something with which it need not concern itself. Is it not a dangerous tendency that civil servants —not accountable to the public in any way —should, without any democratic control, be able to initiate and push through such legislation as they think necessary?
Baroness Chalker of Wallasey: My Lords, I believe that the noble Lord, Lord Bruce, underestimates the amount of attention that Her Majesty's Ministers pay to these items. It is true that the Committee of Permanent Representatives look at some of the detail. Indeed some of it is written in such arcane language that without its help a normal mortal would never understand it. Nevertheless, the committee having done the ground work, we then seek—as is normal in government in this country—to make sure that we are vigilant and that we take up the various issues. We do not give permission to the Committee of Permanent Representatives to proceed unless we are satisfied with the result. That will continue. We do not adopt measures until we agree with them.
Lord Boyd-Carpenter: My Lords, does that mean that Her Majesty's Government are happy with the situation in which legislation which is binding on this country is discussed only by civil servants?
Baroness Chalker of Wallasey: My Lords, my noble friend Lord Boyd-Carpenter puts an important point. The difficulty about the volume is that if every issue were discussed in the greatest detail by Ministers when the instructions first given to the permanent representatives were in fact agreed we would waste a
548
great deal of time. However, where there is any contention I can assure my noble friend that we look at it in great detail. Indeed our scrutiny is better than that of many other countries. That is why other member states are seeking to model their scrutiny system on ours. It is in that sense that I believe that your Lordships can be satisfied that a great deal of attention not only has been paid in the past, but will continue to be paid, to the detail of the legislative proposals which come before the Council of Ministers.
Lord Bruce of Donington: My Lords, will the noble Baroness say to which Cabinet committee or sub-committee these regulations go prior to approval? In view of her earlier answer to my Question does she agree that it would be much better if we cut this wretched legislation down to manageable quantities and concentrated on what was important?
Baroness Chalker of Wallasey: My Lords, the noble Lord knows that I agree about cutting down the amount of paperwork involved. But there are some necessary things for the good and the benefit of the people of this country with which we must comply. We must do our job thoroughly. I am sure that your Lordships' House would not agree that we should defer matters which were beneficial. We hope that what is necessary for the benefit of this nation will also be for the benefit of others. We shall make sure that we continue the parliamentary scrutiny. I ask the noble Lord, Lord Bruce, to await the announcement from my right honourable friend the Prime Minister about committees. However, I can assure the noble Lord that there will be no failure to scrutinise.
Lord Peyton of Yeovil: My Lords, it is a little difficult to understand why the figures asked for by the noble Lord, Lord Bruce, are not available. I entirely agree with my noble friend that we have to do our job properly. Can my noble friend tell me whether it is the case that the number of provisions which are passed without debate is not capable of being counted?
Baroness Chalker of Wallasey: My Lords, my noble friend makes an important point. Central records are kept of Commission proposals and of votes in Council. However, from time to time there are a number of votes on a single issue. That will result in a single decision which takes the form of a regulation or directive. We would have to examine the detailed records of the progress of every legislative proposal through the Community machinery throughout 1991. I regret to tell your Lordships' House that that can only be done at disproportionate cost. I am not sure that it would be to a beneficial end to count numbers. It is far better to concentrate on detail, and that is what we are doing.

Company Ownership and Control
3.4 p.m.
Lord Sefton of Garston Lord Sefton of Garston asked Her Majesty's Government:
Whether they intend to take action to prevent the companies which manufacture the 125 executive aircraft, Rolls-Royce cars and Rover cars passing into overseas control, and if so, when.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield)The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, the Government take the view that in general it is the company itself which is best placed to decide on changes in ownership or control.
Lord Sefton of Garston: My Lords, I thank the noble Baroness for that Answer. That was in line with government statements which are made now and again to the effect that they are not in the business of picking winners. Does the noble Baroness accept from me that there are some people in this country who believe that as regards the north of the country and its industry and manufacturing processes, the Government are not prepared to back or pick winners, but that in the South-East of England the Government are quite prepared to throw money at the problem affecting developers of office properties which contribute nothing at all to the wealth of this nation? Is the noble Baroness further aware that a leading Member of this House, who is a leading industrialist, has just pointed out to the Minister for Industry—which I believe is his title—that 38 per cent. of our industry is now owned by foreigners, and that if that continues much further, we shall be economic colonials?
Baroness Denton of Wakefield: My Lords, I believe that the noble Lord is grossly unfair concerning the Government's support for manufacturing industry for the country north of Watford. I simply draw the noble Lord's attention to the fact that since 1979 this Government have supported the aerospace industry with £1·3 billion.
Lord Williams of Elvel: My Lords, is the noble Baroness aware that regarding all the companies to which my noble friend referred, there seems to be something called "a golden share" which allows the Secretary of State to determine whether those companies should change ownership? Is she further aware that in the course of the past few years the concept of the golden share has been somewhat eroded in the sense that Jaguar, for instance, can be sold to Ford, and the Secretary of State relinquishes the golden share? If taxpayers' subsidies of doubtful legality are going to be offered to companies such as those mentioned by my noble friend, including the Rover group, is it not right that the Government should make sure that these companies continue to be in United Kingdom ownership?
Baroness Denton of Wakefield: My Lords, I thank the noble Lord, Lord Williams, for that question. I should like to set the record straight. As it was made clear at the time of the privatisation of British
550
Aerospace, the Government's special share does not grant any powers to direct or influence the commercial strategy of that company. The main purpose of the special share is to prevent the British Aerospace group passing into foreign control because of its position as a major supplier to the Ministry of Defence. The group's corporate jet division manufactures the 125 executive jet. Foreign share ownership is restricted to 29·5 per cent. As the noble Lord also raised the question of the Rover group, I point out that the conditions of sale included the need to repay up to £400 million to Her Majesty's Government in the event that British Aerospace decides to sell the Rover group or its principal subsidiaries or its trademarks within five years of the date of agreement. I believe that we were looking after the taxpayers' money very well.
Lord Sefton of Garston: My Lords, can I take it that the answer from the noble Baroness is that the Government intend to do nothing at all to prevent these firms going into foreign ownership?
Baroness Denton of Wakefield: My Lords, the noble Lord can take it that the answer from the noble Baroness is that we are very anxious indeed about the position of industry in this country. The resource which allows our industry to continue and for new models to be developed will be focused on with fierce concentration.

Business
3.8 p.m.
Lord Hesketh: My Lords, at a convenient moment after 3.30 p.m. this afternoon my noble friend Lord Cranborne will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the inquest on friendly fire.

Protection of Badgers Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to consolidate the Badgers Act 1973, the Badgers Act 1991 and the Badgers (Further Protection) Act 1991. 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.

Trade Union and Labour Relations (Consolidation) Bill [H.L.]
The Lord Chancellor: My Lords, I beg to introduce a Bill to consolidate the enactments relating to collective labour relations, that is to say, to trade unions, employers' associations, industrial relations and industrial action. 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.)

551
On Question, Bill read a first time, and to be printed.

Tribunals and Inquiries Bill [H.L.]
The Lord Chancellor: My Lords, I beg to introduce a Bill to consolidate the Tribunals and Inquiries Act 1971 and certain other enactments relating to tribunals and inquiries. 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.

Price's Patent Candle Company Limited Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Ulster Bank Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

European Communities: Select Committee
3.10 p.m.
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
In moving the first Motion, I ought to point out to the House that at its meeting last Thursday the Committee of Selection recommended that, in relation to the Europe Communities Committee and the Science and Technology Committee, the rotation rule should be suspended until 2nd November 1992. This is to allow time for the House to consider the report of the Select Committee chaired by the noble Earl, Lord Jellicoe, on the Committee work of the House. It is proposed that the membership of these two Committees should therefore remain unchanged for the present except for the appointment of Members to replace those who have resigned. I beg to move.
Moved, That a Select Committee be appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn;
That, as proposed by the Committee of Selection, the Lords following be named of the Committee:

L. Aldington,

L. Boston of Faversham (Chairman),

L. Brain,

L. Bridges,

L. Bruce of Donington,

L. Chalfont,

B. David,

B. Elles,

552

L. Ezra,

L. Hunter of Newington,

B. Lockwood,

L. Lucas of Chilworth,

L. Mackay of Ardbrecknish,

L. Nathan,

L. Pearson of Rannoch,

B. Robson of Kiddington,

E. Selborne,

L. Shepherd,

D. Somerset,

B. Stedman,

L. Thurlow,

L. Varley,

B. Young.

That the Committee has power to appoint Sub-committees and to refer to such Sub-committees any of the matters within the terms of reference of the Committee; that the Committee has power to appoint the Chairmen of Sub-committees, but that such Sub-committees have power to appoint their own chairman for the purpose of particular enquiries; that two be the quorum of such Sub-committees;
That the Committee has power to co-opt any Lord for the purpose of serving on a Sub-committee;
That the Committee and any Sub-committee have power to adjourn from place to place;
That the Committee has power to appoint specialist advisers;
That the Committee has leave to report from time to time;
That the reports of the Select Committee from time to time shall be printed, notwithstanding any adjournment of the House;
That the minutes of evidence taken before the Committee or any Sub-committee from time to time shall, if the Committee thinks fit, be printed and delivered out;
That the minutes of evidence taken before the European Communities Committee or any Subcommittee in the last Session of Parliament be referred to the Committee;
That the Committee or any Sub-committee appointed by it has leave to confer and to meet concurrently with any Committee of the Commons on European Legislation etc. or any Sub-committee of that Committee for the purpose of deliberating and of examining witnesses; and has leave to agree with the Commons in the appointment of a chairman for any such meeting.—(The Chairman of Committees.)
On Question, Motion agreed to.

Science and Technology: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to consider science and technology and that, as proposed by the Committee of Selection, the following Lords be named of the Select Committee:

553

V. Caldecote,

L. Dainton,

L. Desai,

L. Flowers (Chairman),

L. Gregson,

L. Howie of Troon,

L. Kirkwood,

B. Nicol,

B. Perry of Southwark,

B. Platt of Writtle,

L. Porter of Luddenham,

L. Renwick,

L. Tombs,

L. Walton of Detchant,

L. Whaddon.

That the Committee has power to appoint Sub-committees and that such Sub-committees have power to appoint their own chairman;
That the Committee has power to co-opt any Lord for the purposes of serving on the Committee or any Sub-committee;
That the Committee has leave to report from time to time;
That the Committee and any Sub-committee have power to adjourn from place to place;
That the minutes of evidence taken before the Committee and any Sub-committee from time to time be printed and, if the Committee thinks fit, be delivered out;
That the minutes of evidence taken before the Science and Technology Committee or any Subcommittee in the last Session of Parliament be referred to the Committee;
That the Committee and any Sub-committee have power to appoint specialist advisers.—(The Chairman of Commit tees.)
On Question, Motion agreed to.

Prisoners and Criminal Proceedings (Scotland) Bill [H.L.]
3.11 p.m.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, I beg to move that this Bill be now read a second time.
Those are not perhaps the words with which I should have chosen to begin a maiden speech in your Lordships' House. Your Lordships may think those words a trifle too frivolous for a Lord Advocate coming before your Lordships for the first time, but the words were given to me and I must make of them what I can.
When she made her distinguished maiden speech to your Lordships a couple of weeks ago, my noble friend Lady Chalker of Wallasey, recalled to your Lordships that in her youth she had been a cricketer. Being a cautious lawyer I have checked my reference, and the noble Baroness said on that occasion, before your Lordships:
"I am a maiden once more."—[Official Report, 7/5/92; col. 32.]
I doubt whether I was the only person who found those words strangely evocative. I could see the noble
554
Baroness only a few years ago dashing around the cricket pitch at Roedean and flying across the lacrosse field. Although I could imagine that—and I am sure that one or two of your Lordships could imagine it also—it is perhaps stretching your Lordships' imagination a little too much to ask you to think of me as "a maiden once more"—or as ever having been a maiden on the playing fields of Roedean. Therefore, I cannot come before your Lordships with the line that the noble Baroness brought forward. So, what then?
The very term "maiden speech" seems to tell us that the speech should be somewhat light and elegant. It should be a graceful concoction—a soufflé rather than a bread-and-butter pudding. But when the maiden speech is to move the Second Reading of the Prisoners and Criminal Proceedings (Scotland) Bill, we are in somewhat heavy country and in solemn waters indeed.
I must therefore ask your Lordships to think of the speech more as being a ship on its maiden voyage, like a liner of yesteryear—on this occasion, unfortunately not Clyde-built, but of solid construction nonetheless, crafted by the riveters and platers of the Scottish Office. But maiden voyages can be hazardous even when they relate to uncontroversial Bills. Icebergs may lie in wait. I am grateful that my noble and learned friend Lord Fraser of Carmyllie will be available to scramble on board and to guide the Bill safely on its voyage.
Your Lordships will note that the Bill has three purposes. First, it proposes a fundamental reform of the parole system, similar to that introduced for England and Wales by the Criminal Justice Act 1991. Secondly, the Bill proposes new arrangements for dealing with life-sentence prisoners and so fulfils, as respects Scotland, the obligations of the United Kingdom under the European Convention on Human Rights. Thirdly, in Part II, it makes a number of useful changes to the law of Scotland on criminal evidence and procedure. I shall give a broad outline of the effects of the provisions and then go through some of the clauses in a little more detail.
I turn first to the reform of the parole system. This takes forward our response to the report of a committee chaired by the very distinguished Scottish judge, Lord Kincraig, entitled Parole and Related Issues in Scotland. The report was generally welcomed on publication and has been valuable in establishing principles which will improve the fairness and effectiveness of the parole system and, very importantly, restore meaning to the full sentence imposed by the court.
At present, as your Lordships will know, after they have served two-thirds of their sentence, prisoners automatically receive remission of the remaining third if they have been of good behaviour. The prisoners are then free from any sanction, even if they should misbehave when they go out into the community. By contrast, under the Bill, any prisoner—at whatever stage he is released—may be returned to custody by a court if he commits an offence punishable by imprisonment during the currency of his original sentence. This means that the sentence imposed by the judge continues to have an effect throughout its whole duration.

555
The next thing to notice is that the provisions on early release embody the fundamental principle that no prisoner will be released, other than on exceptional compassionate grounds, before the half-way point of his sentence. At this point we have to distinguish between prisoners who are serving less than four years and those who are serving four years or more. Prisoners who are serving less than four year will be released automatically at the half-way point of their sentence unless their release is delayed for misbehaviour in prison. In line with the advice of Lord Kincraig's committee, there will be no automatic post-release provision for these prisoners. However, when the court considers at the time of sentencing an offender to between one and four years in custody, that that offender is particularly vulnerable to re-offending, the court will be able to make an order for post-release supervision. The purpose of that order will be to protect the public. It will also assist the offender, through compulsory work supervision and, in that way, we hope that it will avoid him falling back into a pattern of offending on release. A released prisoner who breaches the requirements of a supervised release order will be liable to be returned to custody.
The provisions for prisoners who are sentenced to four years or more are different. For them, release at half sentence will be discretionary rather than automatic. All those cases will be considered by the Parole Board for Scotland which may recommend release, at any stage up to two-thirds of sentence. The recommendations of the board will be based on the central issue of possible risk to the public. If the board does not recommend earlier release then the prisoner will be automatically released on licence at the point of two-thirds of his sentence. Therefore all long-term prisoners—that is, four years and over—whether or not successful in gaining parole, will be released on licence. They will be subject to social work supervision potentially from their release until the end of their sentence, and they will be required to be of good behaviour. If a prisoner breaches his licence conditions, he may be returned to custody, on the recommendation of the Parole Board or subject to the board's confirmation.
The provisions in Clause 2 of the Bill on discretionary life prisoners introduce new arrangements which meet our obligation to change the law in accordance with the European Court of Human Rights judgment in the case of Thynne, Wilson and Gunnell, which dealt with discretionary life prisoners. Your Lordships will know that in cases of murder life imprisonment is mandatory. But sometimes in other cases the court imposes a life sentence in the exercise of its discretion. So a discretionary life prisoner is to be defined as one on whom the court has passed a life sentence partly as a punishment for one or more offences and partly to protect the public. The European Court of Human Rights judgment established that once the punitive grounds of such a sentence no longer hold, the public risk ground is a matter which must be open to review by a body having the status and constitution of a court.
556
Accordingly, your Lordships will find that the Bill makes provision for the sentencing court to determine by order the period for which the prisoner should be detained on punitive grounds. At the end of that period the prisoner will be entitled to periodic reviews by the Parole Board of the continued grounds of his detention. For this purpose we shall bring forward rules under which the Parole Board will be constituted and will function as a court. If the board finds that there are no longer public risk grounds for the prisoner to continue to be detained, it will be able to direct the Secretary of State to release him on licence.
I now turn to Part II of the Bill which deals with matters of criminal procedure. Since its enactment the Criminal Procedure (Scotland) Act 1975 has been amended several times. In some cases the legislative framework has been given a new direction; in others the statutory provisions have been clarified or tidied up. The provisions in this Bill fall more into the category of tidying-up legislation. The measures presented to your Lordships today do not constitute a major reform of the 1975 Act. That is an exercise for another day. Nonetheless, in the light of practical experience and with the development of new forensic techniques, we recognise that the legislation now needs to be modified and updated.
Our proposals include provision to give effect to Part II of the Scottish Law Commission's report on evidence relating to blood tests and DNA tests. The recommendations in Part I relating to civil cases were enacted in 1990. In its report the Scottish Law Commission sets out fully the need for specific statutory provisions in this field. I do not need to go over the reasoning behind those recommendations. Suffice it to say that there is a general desire, which was clearly reflected in the responses to the commission's report, to ensure that the powers of constables to take fingerprints and samples are spelt out on the face of the statute book. There are various other proposals in the Bill which are designed to facilitate the efficient operation of the criminal justice system in Scotland. They are wholly consistent with the Government's commitment to the Justice Charter, which was published in Scotland last November.
As regards the changes to the law of evidence in Scottish criminal proceedings, the Bill includes a provision to enable evidence to be given from abroad by means of live television link. This mirrors a provision which is already available to courts in England and Wales. There are also provisions on children's evidence which further implement recommendations made by the Scottish Law Commission. There are provisions to enable a child in certain circumstances to give evidence at a special hearing, that evidence then being recorded. The recording will be played at the trial. Provision is also made to give authority for the use of screens in criminal proceedings so as to conceal the accused from a child giving evidence. That facility is already available to courts in England and Wales. These measures are designed to add to existing provisions whose purpose is to reduce the stress which is sometimes experienced by children who have to give evidence in criminal proceedings.

557
Perhaps I may now go briefly through some of the individual clauses. Clause 1 of the Bill sets out the new arrangements for early release of short-term and long-term prisoners and continues the existing arrangements for the release on licence of mandatory life prisoners. As I have said, short-term prisoners will be released unconditionally at the point of half their sentence but they will have a continuing liability to recall for reoffending. Your Lordships will find the provision dealing with that matter in Clause 16. Long-term prisoners—prisoners serving four years and upwards—will be eligible for parole at half their sentence but will in any event be released on licence no later than two-thirds of their sentence. Life prisoners who are not discretionary lifers may be released by the Secretary of State at any time after consultation with the judiciary and on the recommendation of the Parole Board.
Clause 2 introduces the new arrangements for discretionary life prisoners, which I have already mentioned. Clause 3 gives the Secretary of State a new power to release any prisoner early on exceptional compassionate grounds. This is a minor but useful provision. At present, for example, where a prisoner is terminally ill, there is no method of early release except by resort to the somewhat inappropriate use of the Royal Prerogative of Mercy.
Clause 4 re-enacts, with modifications, certain existing provisions for prisoners who have been transferred to a mental hospital during their sentence. Clause 5 brings fine defaulters and those sentenced for contempt of court within the ambit of the new early release arrangements. Clauses 6, 7 and 8 bring young offenders and those few children who are sentenced by the courts within the scope of the new arrangements. Your Lordships will wish to notice, however, that children will continue to be eligible for release on licence at any point from the start of their sentence on the recommendation of the Parole Board.
Clause 9 enables long-term prisoners who are liable to deportation to be released by the Secretary of State without a recommendation by the Parole Board, after serving half their sentence. Clause 10 sets out the conditions under which life prisoners transferred to Scotland from another jurisdiction are to be treated as discretionary life prisoners for the purposes of the arrangements in Clause 2. Clauses 11, 12 and 13 deal with the duration and conditions of licences, in particular the condition of compulsory social work supervision which will attach to all licences at the point of release. This supervision will be subject to national objectives and nationally set standards and will be 100 per cent. funded by the Government.
Clauses 14, 15, 18 and 19 provide for the new supervised release order. This can be viewed as something similar to a short probation order imposed on a short-term prisoner on release from custody. We envisage that when sentencing the courts will wish to use their power to impose a supervised release order in cases where, because of the nature of the offence or the offender's background, they consider that the offender poses a particular risk to the public. Examples would he those convicted of violence or crimes against children.
558
There is provision for the requirements of the order to be varied by the court which made the order, either shortly before or shortly after the actual release. That is so as to take account of any change in circumstances since the original sentence was imposed. There is also provision for proceedings to be taken where an offender breaches the order. Such proceedings could result in the offenders being returned to custody. All court decisions on supervised release orders will be subject to appeal. Under Clause 17, released prisoners who breach licence conditions are also liable to be returned to custody, if the Parole Board so recommends.
Clause 20 and Schedule 2 preserve the existence of the Parole Board for Scotland. I think that this would be a suitable point at which to pay tribute to the board. It has now been working indefatigably for about 25 years. In particular, the chairman, Mrs. Jean Morris, who will be known to many of your Lordships, has presided for nearly 12 years over the board's deliberations. In ensuring the board's continued existence, the statute also makes clear that the central criterion for the board's recommendations should be risk to the public from further offending. The Secretary of State will be able to give the board policy directions, and make rules prescribing the matters that it may take into account. Noble Lords will also note that the Secretary of State is given power to prescribe certain aspects of board procedure. As I have said, such powers will be used in particular to set up a mechanism for dealing with the matter of discretionary life prisoners.
Under the new scheme, the board will consider all parole cases without any prior sift. The Bill, therefore, does not provide for the continued existence of local review committees. In due course, such committees will be wound up. But I think that it would be wrong not to express the Government's appreciation of all the work that has been carried out over many years by local review committees. The work has been carried out by their members—unpaid—who have given up their own time. In future, we hope that such people will be able to continue to serve as parole advisers for whom provision is made in Clause 21 of the Bill. That is a very useful innovation. Such advisers will be able to explain the parole system to prisoners and help them, for example, with formulating written submissions in connection with their applications for parole.
Clauses 22 and 23 make good certain deficiencies in the powers currently available in respect of assigning prisoners to particular establishments and transferring them. Clause 24 makes provision for additional days to be awarded so as to postpone the date of release of a prisoner who is guilty of a breach of discipline. That replaces the existing provision of a sanction of forfeiture of remission. Clause 25 clarifies the status of prison standing orders and other directions made under the prison rules.
There are, of course, other provisions, but I shall now move on to Part II of the Bill which deals with criminal procedure. Clause 28 gives effect to the recommendations in the report on blood tests of the Scottish Law Commission. The clause gives a statutory framework for the taking of fingerprints,

559
impressions and other forensic samples in investigations. In particular, it clarifies the circumstances in which certain samples may be taken without a warrant.
Clauses 29 and 30 make further provision for the modernisation of the law of evidence. In particular, they introduce new provisions in relation to video or audio recording in connection with evidence taken on commission. Clause 31 allows, in certain circumstances, the High Court or the Sheriff Court to receive evidence from abroad by means of a live television link. As I have said, that brings us into line with the position in England and Wales.
Clauses 32 to 34 of the Bill deal with certain provisions relating to the evidence given by children in criminal proceedings. Again, without going into them in detail, they are designed, by the use of modern technology, to ease the position of children giving evidence. Clause 33 is simpler. It allows for the use of screens in such circumstances. Clause 35 deals with matters of routine evidence and Clause 37 simplifies a rather unnecessarily complicated way of dealing with business while a jury is out of the court considering its verdict.
Clause 38 amends the legislation relating to the backdating of sentences which is an important matter. Clause 39 amends the Criminal Procedure (Scotland) Act 1975 to enable the Crown to make application to the court to set aside a conviction where the prosecutor believes that that conviction should indeed be set aside. Schedule 4 deals with various minor procedural changes with which I do not need to detain your Lordships.
In conclusion, the Bill provides what I and the Government consider to be a coherent package of reforms to the parole and early release systems. It also contains a set of useful improvements to the law on criminal evidence and procedure. I cannot say that the Bill's voyage could claim any blue riband for its speed; but, craving your Lordships' indulgence, it does, nonetheless, seem to me that the proposals and the package have much to commend them. I beg to move.
Moved, That the Bill be now read a second time. —(Lord Rodger of Earlsferry.)
3.36 p.m.
Lord Macaulay of Bragar: My Lords, on behalf of all Members of your Lordships' House perhaps I may welcome the noble Lord, Lord Rodger of Earlsferry, to the Government Benches. We have had the benefit of a complete explanation of this very important Bill. I was interested to note that the publications of the noble and learned Lord include Owners and Neighbours in Roman Law and that his hobby is walking. That gives a new meaning to the Harry Lauder song, "Roamin' in the Gloamin'." But, there it is. We look forward to hearing further contributions from the noble Lord in due course.
It goes without saying that while I congratulate the noble Lord on his appointment and welcome him to his new position in succession to the noble and learned Lord, Lord Fraser of Carmyllie, who has now moved on, although I do not know whether it is sideways or
560
upwards—I see that the noble Lord is indicating downwards—I should have preferred it if the positions were reversed and that it was the noble and learned Lord who was making the speech from where I speak today. The noble and learned Lord, Lord Rodger, has shown himself to be internationally renowned as a lawyer of considerable significance. As I said, we look forward to hearing from him in the future.
The present Bill comes before your Lordships' House for its Second Reading. At the outset, I should say that it is most unfortunate that this House is forced at very short notice to consider not only the Bill but also the report upon which the Bill is based; namely, the Kincraig Report which is the foundation of the Bill. The Kincraig Committee first met in January 1988. It reported to the Government in March 1989: the Government published their response in July 1990. Here we are, nearly two years on, receiving a Bill that has been thrust at us in succession to the gracious Speech and which we have to consider at very short notice.
It was the ineptitude and the lack of management in the last Administration which led to Scotland falling behind in this type of legislation while the Carlisle Report, the equivalent report, was given precedence in your Lordships' House. We have had no opportunity whatever to debate the Kincraig Report. We are faced with a Bill without proper debate. I do not intend to make any major commitment from this side of the House at this stage because of that. We shall take our time to look at the Bill and the issues which it raises in relation to Scotland, bearing in mind that Scotland has a separate legal system and its own prison system.
We have to have regard to the Bill to digest the Kincraig Report, as I have said, at short notice. Basically as I see it, the whole concept is one of balance between protection of the public from offenders and the need to recognise the element of rehabilitation in prison sentences to which the noble and learned Lord has already referred. No one on any side of this House can pretend that there is an easy answer to the problems posed.
In the Kincraig Report there is an emphasis to reduce the prison population balanced with the public perception of punishment and rehabilitation. That is important, because it is how the system appears to the man in the street which is most important.
There is an assumption in the Kincraig Report that judges will not take into account what happens once a person has been sentenced. In other words, the judges will say, "Well this is probably worth four years, but we will give him six because he will be out after 50 per cent. of his sentence is served". The Kincraig Report denies that any such attitude exists. I can say from my own experience and without revealing any confidences—because this was not said to me in confidence—that some judges in the past, at least, have said, "Well, he'll get parole after a certain period of time", and that was reflected in the sentence.
What is problematic in the whole issue is the lack of public input into the report and into the Bill. In the Kincraig Report—looking at the people who have been consulted—there is no representation on behalf

561
of the victims. There is no representation on behalf of the prisoners, apart from an input from SACRO. The victim in all of these matters, as usual, becomes a back number. He has no voice anywhere in the report.
In a long-term sentence, surely before the prisoner is released the victim should be heard to see what has happened to him or her in the intervening period, because the emphasis on release is what has happened to the prisoner in the intervening period.
In the short-term prison sentence, which is four years, it is wrong to assume, as does the Kincraig Report, that anyone who is sentenced, as the report states, to a sentence of over five years has committed a grave crime; and anyone with a sentence of under five years does not need any help when he gets out of prison. It will be well known to those Members of your Lordships' House who were involved in the administration of the law that four years represents a serious crime.
Whether it is grave or serious is a matter of semantics. Very often it is the persistent offender who does not fall into the high category of over five years who needs help; but in terms of this Bill, he will be released into the streets willy-nilly with no support at all. For example, the person who commits the crime of culpable homicide with a single punch, or—as sometimes happens in the case of young persons—with a single stab wound, may very well receive a sentence of over four years. Of course it is a grave crime; but the likelihood of that person re-offending is minimal, whereas the likelihood of a person who is a persistent offender, who has received a sentence of, say, three years, re-offending is very high.
If supervision on release is the keynote of the report and central to the Bill, there is something to be said for looking at the short-term prisoner in relation to post-sentence supervision. He or she may have as many or indeed more problems as the long-term prisoner who may be more settled than the short-term prisoner.
There will be little opposition from this side of your Lordships' House to the general principle of the Bill, bearing in mind that the initiative for the introduction of parole came from a Labour Party study group chaired by my noble friend Lord Longford, followed by the paper, The Adult Offender which paved the way for the Criminal Justice Act 1967.
Parole has become an integral part of the prison system, but it has been the subject of public and judicial criticism. The question which now arises is whether it works; and, if so, whether it can be improved. I accept that the Bill attempts to look at the problem.
The implementation of the Bill and the costs involved will depend on how it works, and in the Bill the Government recognise that there is a financial juggling act to be done in which they cannot forecast what the cost will be. It is all guesswork at the moment.
It would be helpful if any money saved within the prison system were to be put back into the prison system instead of being diverted elsewhere, so that the real problems, the humane problems—the slopping
562
out, and all the rest, with which we are all familiar; we have had plenty of debates about that—can be faced and handled by the prison authorities.
Part I of the Bill raises interesting issues in the concept of the three categories of prisoners: the short-term, the long-term and the life prisoners. Clause 1, dealing with early release, leaves the Secretary of State no option whatever in releasing short-term prisoners. Clause 1(1) states:
"the Secretary of State shall, … release".
Clause 1(2), equally, states:
"As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him".
If I understood the noble and learned Lord correctly, he said that a person could be detained in prison for a longer period than that if he had offended against prison policy. My understanding is that that is against the European law, and that the only addition to a prison sentence which can be imposed is one which is imposed by the criminal courts. Indeed, reference is made to that in the Kincraig Report.
The release of a short-term prisoner is unconditional; the release of a long-term prisoner is on licence. As I have said, this is based on the assumption to which I have already referred, that if a person commits a crime and is sentenced to prison for over four years, he is, by definition, guilty of committing a grave offence.
That approach is illogical and it should be looked at. Clause 1(1) is of course,
"without prejudice to any supervised release order"
which a court might impose at the time of sentencing.
The lack of discretion given to the Secretary of State is something that I hope the Government will look at; and perhaps they will substitute the word "may" for "shall" in Clauses 1(1) and 1(2), because it appears in Clause 1(3). Therefore for consistency it might be better if the word "may" appears instead of "shall".
The Bill also raises the vexed question and much debated question of classification of a life prisoner. It classifies them into groups. The first is a "life prisoner"; and the second is a "discretionary life prisoner". That is a complicated and unnecessary classification.
The noble and learned Lord, Lord Morton of Shuna, had hoped to be here as a member of the Select Committee on Murder. The report was debated some time ago in your Lordships' House. Ironically, he has been detained presiding over a murder trial in Inverness. He has asked me to convey his apologies to your Lordships for his absence; but I have no doubt that at the Committee stage we shall hear his powerful voice.
I do not intend to go into the arguments for and against the mandatory life sentence. There will be focus on that at the Committee stage; and, as I have said, I suspect it will lead to the Chamber being asked once more to express its opinion during the Committee stage on whether the mandatory sentence should still exist, albeit that the Bill is basically a Scottish one.
Suffice to say that the Bill underlines the artificiality of the existence of the two types of life sentence. Life should be a sentence always left open to the courts;

563
but once imposed it should mean what it says without artificial classification such as "discretionary" and "non-discretionary".
Clause 2 introduces a new concept of the relevant part of the sentence, and that is adding more confusion to the question of life sentence. At present the Scottish judge can make a recommendation which is not binding on the administration; but now the judge, if the Bill goes through, having decided that life imprisonment is the appropriate way to deal with a case, will then have to say what the relevant part of the sentence is to be. That has a ring of inconsistency, and makes the judges' job difficult. A person has either to be sentenced to life or not.
Clause 3 relates to release on compassionate grounds. As the clause stands, there is no question of a temporary release on compassionate grounds. However, Clause 17(1) (b) contains provisions for revoking a release granted on compassionate grounds, and that, again, is inconsistent. A person who has been released on compassionate grounds can be recalled because his health or circumstances have so changed that he would not have obtained a compassionate release in the first place. That is confusing. Perhaps there should be a measure of flexibility in Clause 3 to allow a temporary release on compassionate grounds.
Many issues will be debated in Committee. There is the question of whether fine defaulters should be included in the amnesty—if we can call it that—because the Bill runs contrary to what the Kincraig Report suggested. In Clause 9 there is again a dual system of punishment, because a person who is due to be deported will be pushed out of prison and out of the country halfway through his sentence. He will be put on a boat or an aeroplane to go somewhere, whereas the Scottish prisoner will be left to be dealt with under the terms of the licence. That may lead to stress within a prison. The Government might also give consideration to the suggestion contained in the Kincraig Report that the life sentence licence should be reviewed periodically and at some stage lifted from the person's shoulders.
Many other issues arise in the Bill. The role of the Parole Board and the introduction of parole advisers are set out in Clauses 20 and 21. The Kincraig Report suggests that volunteers should be parole advisers to prisoners. That is an alarming prospect, because applying for parole plays a vital part in a prisoner's life. He either stays in gaol or he gets out of gaol. It is wrong to have volunteers as advisers. The Government might consider bringing that scheme within the legal aid system.
The Parole Board probably requires some review to take account of modern times. As I said, the prisoner should be represented. There should be someone from the prison—for example, a prison officer—to represent the reality of life within prison. The Kincraig Report said that one member of the Parole Board has served for 14 years. That is far too long for a person to serve on a committee such as that. Consideration should be given to limiting the period of service.
564
Part II is interesting. The taking of samples may lead to confusion. Clause 28 provides that a constable may use reasonable force to take a sample from an external part of the body. What on earth does that mean? What if a prisoner thinks that what the constable is doing is unreasonable? I am thinking especially of sexual cases. Is the male sexual organ to be treated as an external part of the body? Or does the clause relate only to parts of the body visible to the police officer? Perhaps the Government will give that matter some thought. The clause provides also that,
"a constable may take from the person fingerprints, palmprints and such other prints and impressions".
I hope that the Government will understand that that provision may lead to difficulties. What constitutes reasonable force is another question.
On the subject of children giving evidence, the Bill does not set out the commissioner's qualifications. I suggest that the minimum qualification for the commissioner should be that he is qualified in law and has experience of the criminal law. There is a gap in that part of the Bill because it does not provide for the accused person to be represented when the child is giving evidence and there is no provision for cross-examination. If a child is to give evidence against someone, it runs contrary to the tenets of natural justice for that person not to be represented. There should be cross-examination at the time the evidence is given, which, as the noble and learned Lord said, will found later proceedings.
I could continue, but I shall not do so. I look forward to what may prove to be an interesting debate on these important provisions for the criminal law of Scotland.
3.56 p.m.
Lord Mackie of Benshie: My Lords, I rise with great trepidation to confront the battery of lawyers, soon to be reinforced by that lion of the North after he has finished trying murders in Inverness. I dare say that the Committee stage will be even more boring than Second Reading. Happily, I shall not take part in the Committee stage. One of our tame lawyers will assist the Scots lawyers in their long and tedious discussions.
We on these Benches welcome the Bill, because the extraordinary fact is that we imprison more people in Scotland than any other country in Europe except Northern Ireland. The one fact we know about rehabilitation of criminals is that it seldom takes place in prison.
I welcome this attempt to bring the law up to date and to cope with the appalling problems of rehabilitation and the present rise in crime. I have one or two questions for the noble and learned Lord, Lord Fraser. Obviously the protection of the public is extremely important. Clause 2 ensures that matters will be looked at properly and that as far as possible the mistakes of the past will be avoided.
Clause 13 which relates to regulating the supervision of released persons is important. The Government say that they hope the financial effects of the Bill will be neutral, but if the regulation, supervision and rehabilitation of prisoners is to be effective, that will need a great deal more money than

565
the Government hope to save by the reduction of numbers of persons in prisons. The prisons themselves, as everyone knows, need a great deal more money.
I was interested to read Clause 19 which deals with appeals. I presume that that means that the prisoner may appeal. But it is difficult to see how other interested people—for example, the victim—can appeal against a prisoner being released. I should like a little more information about how the appeal procedure will work when the noble and learned Lord replies. I should also like to know what the judge will do when the jury is out considering its verdict. Will he summon another criminal into court and try him or will he get on with his paperwork, which is what I presume he does? It is a subject about which we shall need a little more information.
That is all I have to say. I understand that the Law Society of Scotland is against one or two points in the rules of evidence, but on the whole the Bill brings the law up to date. It is beneficial and if it can reduce the number of people in prison and start to help them when they come out of prison, it will be a good Bill.
4 p.m.
Lord Campbell of Croy: My Lords, I wish to thank my noble and learned friend for introducing the Bill so clearly and also for his maiden Speech, the first occasion of his taking part in debates in your Lordships' House. I am sure that we all look forward to hearing from him many times in the future.
I shall venture to make a few general observations on Part I of the Bill. My impression is that the overall effect is likely to be the earlier release of prisoners. That is despite two points which my noble and learned friend made, pointing out that the period which a judge has prescribed will continue to be observed through parole. A prisoner will quickly be returned if he commits another offence. Also, normally release will not be before less than half a sentence has been served. Despite that, the general effect of the clauses in the Bill will be earlier release. If I am wrong, I hope that my noble and learned friend Lord Fraser will tell me later.
That brings the hope, provided that crime in Scotland does not increase, that in future there will be less overcrowding in prisons. Whether or not that is one of the aims of the Bill, most of us do not want anyone to stay in prison a day longer than necessary.
The Bill makes changes in arrangements for release and the procedure affecting the Secretary of State and the Parole Board for Scotland. No doubt these proposals have been judged by the Government as improving the prospects of obtaining a balance which should be sought between punishment for offenders, deterrence against repetition, the shortening of custodial periods and protecting the public. Whether the changes will be effective in making such an improvement, only time will confirm.
The decisions which have to be taken by the Secretary of State are often difficult. Perhaps my own experience as a former Secretary of State for Scotland may be helpful to your Lordships. I invite the House to consider the duty laid upon the Secretary of State
566
for Scotland in taking decisions on the release of prisoners convicted of serious crimes, in particular murder. Like the Home Secretary in England, he is required to consider such cases personally.
That is right, because those decisions affect life and liberty. In the Scottish Office a conscious effort has to be made to set aside time for consideration because home affairs are only a part of the Scottish Secretary's functions. They also cover the responsibilities of several large departments in London dealing with subjects in England such as environment, health, education and agriculture. In my case, I was faced with taking such difficult decisions over a period of four years.
It is 18 years since I had to take any of those decisions. I must make it clear that I have not tried to keep up to date with any of the changes made in the meantime. One of the factors, however, which I regarded as being of the greatest importance was the safety of the public, where a released prisoner might become dangerous. For that reason, I am glad to note the provision in Clause 14 for supervision, where necessary for the protection of the public. This is a new procedure which is being introduced.
Clause 20 continues in existence the Parole Board for Scotland. It has become an important part of the system, and I felt that I had good relations with the board and its chairman during my four years. Of course, those were the early years of the board's existence as an independent body. I know Mrs. Morris, the present chairman, well and I can think of no one better to do the job.
The Bill appears to give the board more discretion in relation to the Secretary of State's directions than has been the case in the past. The noble Lord on the Opposition Front Bench has already pointed this out. Under Clause 2, the Secretary of State for Scotland will be bound to release a prisoner on licence in certain circumstances, if the board is satisfied. Thus, to a certain extent under the Bill the board has more discretion and the Secretary of State less. When my noble and learned friend replies, will he confirm that that is so? Is the provision in Clause 2 the first time that the Secretary of State is to be directed by the Parole Board rather than merely advised?
Clause 21 brings a new kind of player onto the scene, the parole adviser. This is someone quite new. Without any commitment, can the Minister indicate roughly what is contemplated here? How many parole advisers will there be at a time when they are at full strength? What kind of person do the Government have in mind? Is it to be a full-time job? Is it to be done by retired people? Will they be former professionals in associated fields, or will they have considerable experience in those fields? We should be glad of information either now or at later stages of the Bill.
I am sure that a Secretary of State will welcome any well-informed advice that he can get. I ask noble Lords to appreciate the role of the Secretary of State confronted with decisions on the following lines. A prisoner, convicted of a violent crime—perhaps murder—has served most of his sentence. Some form of release is being considered into the world outside prison. The Secretary of State will have before him the

567
history of the crime, which may have been brutal; a report on the conduct of the prisoner in prison; probably a psychiatrist's comments as well. It will be considered whether he is likely to be a reformed character, whether he is likely to live a quiet life outside prison as a normal citizen. If so, then most of us would wish him to be released so as to avoid his deteriorating further in prison and becoming a kind of cabbage. Those are the considerations which a Secretary of State has to take into account, but I add again that the safety of the public must be paramount.
I wish to turn to the particular subject of prisoners with mental disorders. They must be considered in any plans for early release. I am glad to see that Clauses 4 and 26 deal with these matters. Clause 4 is concerned with transfers to mental hospitals, but in future fewer mental hospitals will be available and their numbers will gradually decrease. We all know why: it is the Government's policy—widely accepted and accepted by me, if it can be carried out with effective co-ordination—that a majority of mental hospitals, the old ones in particular, should be closed down. Then those who are capable of it, though they may have mental disorders, should be cared for in the community. The National Health Service and Community Care Act 1990 is due to come into full effect in less than a year—April 1993.
I ask: are the Government satisfied that enough mental wards will still be available, say, in 1996, 1999 or later, for what the Bill provides? If not, can such prisoners be treated or supervised satisfactorily in the community? If so, are plans being made now? Are local government authorities, which will in future be responsible, being briefed and prepared?
Those who may have to have dealings with sufferers from mental disorders should, if possible, have basic training, to include awareness of symptoms and information about handling sufferers. The object must be the early recognition of mental trouble and early reference to and advice from the associated psychiatrist. In future I favour such basic training for prison officers because a significant proportion of all prisoners have mental trouble. This is a view, I am glad to say, that is shared by Lord Justice Woolf who inquired into a prison situation in England. Speaking at a conference in London last December arranged by the National Schizophrenia Fellowship, he advocated basic training and briefing on mental disorders for prison staff. He added that on a recent visit to Scotland he had been glad to find that some training had already started. That is good news for those of us who are involved in these matters in Scotland.
In my view, that training should not just be limited to those who handle prisoners. I believe it should be part of a scheme to prepare all those who are involved in our community for dealing every day with members of the public. I refer to railway staff, shop assistants and other such people who deal with the public.
The recent Act of Parliament to which I have referred is designed to increase substantially the number of mentally disabled people circulating in the community. Many of those people would otherwise have been in hospital. Many will be young people.
568
Some will have been in prison only because their illness made them incapable of coping with ordinary life with the result that they resorted to petty crime or created disturbances. I suggest that in due course a new section for the Citizen's Charter might be composed devoted to the subjects of awareness, early recognition of mental disability and civilised and sensitive handling of sufferers. My right honourable friend Mr. Waldegrave is in a good position to consider that point by virtue of his recent experience in the Department of Health.
As regards prison or remand centres, we must aim to anticipate and forestall attempted suicides, usually by young people. I hope that, with assurances on the points I have raised, the Bill will help in achieving the balance I have described.
4.12 p.m.
Baroness Carnegy of Lour: My Lords, my noble friend who has just spoken has reminded us of the heavy responsibilities that, when he was Secretary of State for Scotland, he experienced in relation to the release of long-term prisoners. I believe I am right in saying that this Bill somewhat lightens the burden for future Secretaries of State. If I am wrong about that point, perhaps my noble friend will inform me.
I wish to limit my remarks at this stage to one aspect of the Bill, which I shall discuss in a moment. This week the General Assembly of the Church of Scotland will meet in Edinburgh. Every day as the Lord High Commissioner, the Queen's representative, processes up the steps leading to the Assembly Hall he is overseen by a somewhat threatening and more than life-size statue. That statue is a stern reminder of the continuing influence of John Knox upon our habits and culture in Scotland.
One of the darker sides of the way we conduct our affairs—I believe this is part of the continuing John Knox effect—has been that we have consistently been at the top of the imprisonment league in Europe. My noble friend Lord Mackie reminded us of that. We have kept many people in prison without any proof at all that our crime rate, which has remained high by European standards, would increase if we imprisoned fewer people and imprisoned some of those people for shorter periods of time. We have never properly ascertained either whether unnecessary imprisonment, unnecessarily long sentences, and arrangements for parole and early release which can be perceived as unfair, are themselves counterproductive.
In addition overcrowding in Scottish prisons has from time to time produced damaging and massively expensive unrest—we all remember what happened not so long ago at Peterhead —and has resulted in too many people escaping from prison. Such events are always a cause of anxiety for the public and are also a cause of prison unrest. Such changes as have been made in recent years have produced some encouraging signs. The use of community service orders and other alternative sentences for lesser offences has helped to stem the increase in the number of short-term prisoners. In fact we have seen the number of prisoners in Scottish prisons fall in each of the past four years, although that number is still clearly far too

569
high at 4,724. I understand that that is the current figure and it represents more than one prisoner for every thousand men, women and children in Scotland.
This drop in numbers, together with an increase of, I believe, 10 per cent. in prison staff, has reduced overcrowding. The number of escapes has decreased over four years from 96 to 42. In addition we are at last beginning to see a drop in the number of crimes and convictions in Scotland. I noted that this was stated in the press last week or the week before.
I shall address my remarks mainly to Clause 1, which follows three principles enunciated by my noble friend Lord Campbell of Croy. First, imprisonment must of course be a punishment. It must clearly demonstrate to the offender that the public requires that he or she serve a sentence appropriate to his or her offence. Secondly, a prisoner must he held so long as he or she is a serious danger to the public. Thirdly, if a prisoner is not to become so embittered by his time in prison that the likelihood of his reoffending after release is greatly increased, the sentence and the date and conditions for early release must be seen to be fair and just.
It has always seemed to me that some of the vagaries of our prison system in Scotland have increased bitterness quite unnecessarily and therefore have decreased rather than increased the chances of a prisoner going straight after his release. That was certainly the case when I was an honorary sheriff a number of years ago and when I was on the visiting committee of an institution for young offenders. I suspect that it is just as much the case now.
It is not difficult to see how unfair the system must seem to prisoners when, for example, a professional man is sentenced to four years' imprisonment for fraud and he behaves well and is allowed parole after one year and four months whereas a young burglar may receive on the same day a three-year sentence. He also behaves well but is not eligible for release until two years have elapsed. The second man is sentenced to a year less in prison for what is regarded as a lesser offence yet he is held in prison for eight months longer than the professional man I have referred to.
Such a system of sentencing must be seen as unfair by prisoners. If judges try to redress the balance—and the noble Lord, Lord Macaulay, has said that they do—by skewing the sentence and sentencing the second man to four years, that man gets out at the same time as the first man but carries the stigma of the heavier sentence all his life. The Bill addresses this problem. The measures in the Bill will mean that a prisoner sentenced to three years—to use the same example—will be eligible for release after 18 months and someone sentenced to four years will only be eligible for parole after two years, and, if not eligible for parole, he will be eligible for release after two years and eight months. The earliest possible dates of release will in that case reflect the severity of the sentence.
That seems to me absolutely right. It is much fairer. Providing the Parole Board has the clear responsibility of granting parole only when the safety of the public is not threatened, as is clearly stated in Clause 2, that and a number of the other provisions in the Bill, including the interesting new involvement of social
570
work departments, should reduce the number of people in prison. It should also reduce the current counter-productive sense of grievance and the resulting tendency to reoffend.
There are many other interesting and positive aspects of the Bill, some of which have been mentioned by speakers in this debate. I greatly look forward to the Committee stage. I find this a very interesting and promising Bill. I hope that the House will give it a fair wind.
4.20 p.m.
Lord Renfrew of Kaimsthorn: My Lords, it is with diffidence that I risk to speak, not having put down my name to do so. However, a couple of points have emerged in the debate which make it seem appropriate that I should say a couple of words.
First, I congratulate my noble and learned friend on his admirable maiden speech, which he treated with gratifying thoroughness. I am sure that the House will look forward to many more contributions of a similar kind.
The focus of the Bill which interests me in particular is that relating to evidence and the indications that various categories of evidence on which emphasis has been placed in recent discussions are being taken into account. In Clause 29 there is provision for the use of audio and visual records, which is a positive step. In Clause 31 there is provision for the use of televisual evidence in controlled circumstances where somebody is giving evidence from abroad; and, in particular, there is provision in Clause 32 that recorded video evidence by children may be admissible under certain well-controlled circumstances. In Clause 33 there is provision that a screen can be utilised so that children giving evidence do not feel themselves to be within the sight of the accused, though the accused may be present and able to follow the giving of the evidence.
However, it is Clause 28 in particular to which I wish to draw attention. It seems that the evidence which may be derived from genetic fingerprinting and the wide range of applications of such scientific testing are so important that I question the wording relating to the taking of blood and certain other samples by means of "swabbing or rubbing." When I have had blood samples taken—not for evidential purposes but for medicinal evidential purposes—it has been by the means of extracting a small sample of blood. That is a specific point, but it arises most conveniently here. I should like to be assured that under the clause the appropriate samples can be taken. I am not sure that rubbing or swabbing provide sufficient opportunity.
It is helpful that the Bill addresses itself to questions of new categories of evidence, but I wish to make the point about the scientific progress of evidence in order to be assured that the Bill makes the necessary provisions to ensure that such categories of evidence are admissible and that the necessary samples can legally be taken.
4.24 p.m.
Lord Carmichael of Kelvingrove: My Lords, first I must congratulate the noble and learned Lord, Lord Rodger of Earlsferry, on his maiden speech. I must make a personal apology. I was not aware that it was a maiden speech, because I seem to have seen the noble and learned Lord around, in various places, for quite a long time. I apologise if I disturbed the normal tenor of the House. It was a very helpful maiden speech, giving a good résumé of the Bill which will be very helpful when we reach the Committee stage. Perhaps at this point I may ask the noble and learned Lord whether there is any intention of providing Notes on Clauses for the later stages of the Bill.
The noble and learned Lord, Lord Fraser of Carmyllie, seemed to think that he had taken a step downwards after having been Lord Advocate. The important point is that he has been Lord Advocate. As I know from people in the Scottish legal firmament, it does not matter what happens afterwards once you have held that post.
The noble Lord, Lord Mackie of Benshie, made some comments about speaking on Bills such as this. I am at least as nervous. Way back in 1967 I foolishly made a speech on an English Criminal Justice Bill, partly because I was told that there was no provision in that Bill for parole to be extended to Scotland. Because I made a speech on that subject I was appointed to the Committee on the Bill. Incidentally, I re-read the speech recently. I only hope that the people in Hansard in this House are as kind as they were in the other place because the speech reads quite well.
There were only two non-lawyers dealing with that Bill, Victor Yates, who represented a Birmingham constituency and myself. It was so much a lawyers' Bill that in order to accommodate them we met only on Wednesday afternoons so that they could be in court the rest of the week.
Since then I have dealt with many Scottish Bills relating to the criminal justice system and prisons, as has the noble and learned Lord, Lord Fraser of Carmyllie. Those measures have all aimed at trying to reduce the prison population. It is appalling that the present size of the prison population in Scotland puts us almost at the top of the European league. The size of the prison population was the main reason for the 1967 Act and many other Acts, but it appears still to be rising. This Bill should help, but there have been a number of false dawns before. Still the numbers rise.
A number of speakers have paid tribute to the Parole Board. I do not want to be a dog in the manger; I have every respect for Mrs. Morris and the work she has done on the Parole Board. However, as has been suggested—it may have been in the Kincraig Report —I consider that two terms are sufficient for anyone in such a job. Otherwise, whether they like it or not, no matter how capable, honest and self-searching they are, in the eyes of the public they become part of the Establishment. I would hope that we could at least discuss whether we should reduce the length of time any one person can serve on the board.
I agree fully with my noble friend Lord Macaulay of Bragar about the composition of the Parole Board.
572
I believe that we should do something to widen the composition and include people who are less Establishment and who have greater involvement with the criminal justice system, despite the very good work that is done now.
In earlier Bills, which the noble and learned Lord, Lord Fraser of Carmyllie, will remember, we talked of detoxification units as a means of reducing the prison population. I believe that the unit in Aberdeen has now been closed, yet the police in Aberdeen thought that it was a great help. It allowed people to stay overnight or for a couple of nights after which they returned to their families or their normal work.
Obviously, we approve of the backdating of sentences to the date of remand. That has been requested for a very long time. It should produce a reduction in the prison population. However, accommodation for prisoners after they are released from prison is woefully scarce at present. Many prisoners find, particularly after having been in prison for a number of years, that their roots have been lost. Some of them, probably those most likely to offend again, have no solid home background or any place to go to. SACRO, with which I was associated for a long time, has some accommodation but it is inadequate compared with the scale of the problem.
It is difficult to suggest that certain houses should be allocated to people who come out of prison, although that has certainly worked for a number of psychiatric cases coming from mental hospitals. In view of the general housing problems in Scotland, it may seem unfair to give priority to people coming out of prison. However, it could prove ultimately to be a very cost effective way of dealing with prisoners. Perhaps some way of extending the accommodation provided by organisations such as SACRO or the YMCA, which, considerably subsidised, would enable prisoners to have somewhere to go on their release from prison, can be considered.
There are undoubtedly other problems in the terms of release. On looking through the Kincraig Report, I noticed the concept of training for freedom. I wonder whether that is helpful. I have the feeling that when people are given training for freedom, the pressure put on them is sometimes just too great. There have been a number of cases of people who were being given training for freedom outside prison and who, for some reason or other, committed a very minor offence. Noble Lords may remember the case of a man in Edinburgh who was released early from the work he was doing, who had had half a pint of beer in a pub and who was waiting for a bus when the offence occurred. He was put right back again to the beginning.
The same sort of thing happens when people come out of a special unit. They are put right down to the bottom of the heap, sewing mailbags in some cases. We almost seem to be trying to test them to destruction. That is basically unfair although I understand that many people have survived because of their experience in the special unit.
This Bill has a great many points in its favour but it will fail unless the Government are willing to look at the cost to the social services. I do not like the

573
suggestion in the Bill that there will be a saving in the prisons which can be given to the social services. Surely part of the rationale for a reduction in the prison population—which is something that we all want—is to have a good enough ratio of prisoners to officers so that prisoners can be given training within the prison.
I believe that it would be a good policy for the prison officer population to be maintained as it is at present, with a reduction in the number of prisoners, so that more time could be given to training. Perhaps there would even be an increase in the ability of prisoners to take trade or educational courses.
Despite all that, there will be a tremendous strain on the social services. One point that we shall need to study carefully in Committee is the implications of the Bill for the local authority social services. As I said, the Bill, by and large from what we have seen so far —we shall discuss it more closely in Committee—appears to be a step forward. It is perhaps not as big a step as the noble and learned Lord the Lord Advocate suggested but it is a step forward in the Scottish penal system and we are grateful for it.
4.35 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, in winding up this short debate, I should like, first, to welcome to the Front Bench my noble and learned friend the Lord Advocate. I have worked with him over recent years when I was the Lord Advocate and I am delighted that he joins me on the Front Bench in your Lordships' House. In the course of the past year he has appeared not only before the European Court of Human Rights on behalf of the United Kingdom; he has also appeared before the European Court of Justice and, most recently, before the International Court of Justice. I venture to suggest that that is a record of advocacy that is unlikely to be equalled by anyone. I am grateful that he joins me and has participated in this debate today. I hope also that he will take part in the later Committee and Report stages of the Bill.
In opening for the Opposition, the noble Lord, Lord Macaulay, seemed to me to be particularly churlish. The Bill has enjoyed widespread support in Scotland. One of his complaints was that the committee had not consulted widely enough. If he had ploughed through the report and got to Chapter 1, towards the end of the first sentence he would have found that groups of members of the committee visited HM Prisons Barlinnie, Cornton Vale, Edinburgh, Glenochil, Perth, Peterhead and Shotts. If he had persevered and reached paragraph 1.2, he would have found that Lord Kincraig's committee made special arrangements for staff and inmates of penal institutions to be notified of our interest in receiving their comments. As a consequence, some 44 prisoners responded to the proposal. Moreover, social work departments and others have a keen interest in the concerns of the victims.
Subsequently, some 40 responses were received by the Government when a further invitation was offered to comment on the report produced by Lord Kincraig for the Government. There are some detailed points of
574
criticism or clarification that remain to he resolved, but in the main the report has been very well received in Scotland. Some queries raised in the course of your Lordships' debate this afternoon wanted to probe the question of whether it would result in more or fewer people being in prison. I do not think that an objective either way was in mind. We indicated that we wanted —as is found in our response to the Kincraig Report —the proposals to form a structured and well balanced framework for the release of offenders from prisons and young offenders institutions in Scotland. I believe that we have achieved that objective.
As my noble and learned friend the Lord Advocate made clear, there has also been the necessity to bring the position in Scotland into line with that obtaining in England and Wales in order to meet our obligations under the European Convention on Human Rights with regard to those who are detained in prison under discretionary life sentences. While that has been in place for some time in England, we have taken this opportunity to get the position correct in Scotland.
Perhaps I may say to the noble Lord, Lord Campbell of Croy, whose intervention I much welcomed, that he knows very well the anxious and difficult decisions that Home Secretaries and Secretaries of State for Scotland have to take when deciding whether or not those held in prison under life sentences should be released on licence. This is the first time that the Secretary of State for Scotland will be directed by the Parole Board, which for the first time will function as a court. That functioning of the Parole Board as a court goes toward discharging our responsibilities and obligations.
The noble Lord, Lord Macaulay, seemed to be suggesting that the distinction between short-term and long-term prisoners was illogical. However, the recommendation of the Kincraig Report was that only those serving long sentences should be eligible for parole and that was generally welcomed. The introduction of a system of discretionary release for short-term prisoners would effectively bring those prisoners back into the parole scheme. It was felt that that was not a worthwhile way of approaching matters when a sentence was of that duration.
A number of questions were asked about parole advisers. However, given the number of issues that were raised during the course of the debate, I probably shall not have time to develop them. Parole advisers will be members of the community in the locality of the prison who have an interest in penal matters and who may have been involved with the prison in a voluntary or official capacity. There will be between one and five advisers in any long-term establishment.
I was asked whether notes on clauses will be provided for noble Lords who wish to participate in later proceedings. While those are not immediately available, they will be made available. I am sure that the noble Lord, Lord Mackie of Benshie, who characterised these proceedings as being long, dull and tedious, will be an active and enthusiastic contributor to our discussions in Committee after being armed with a full set of notes on clauses.
The noble Lord, Lord Campbell of Croy, expressed concern that the reduction in the number of mental

575
hospital places will mean that an insufficient number of beds will be available. There is no question of prisoners who are liable to detention being looked after in the community. Transfer prisoners represent only a tiny proportion of the number who are sufficiently mentally disordered to be detained in hospital and there will be no difficulty in finding beds for such patients.
My noble friend Lady Carnegy raised a number of points about how the community will regard the way in which the sentences and parole are ordered after the changes have been introduced. I hope that as we develop our discussions in Committee my noble friend will appreciate that there will be no risk to anyone in the community. In Scotland our record of detaining people in prison is curious. I am never entirely sure that the figure putting us at the top of the league in Europe is accurate. However, we wish to achieve a position where people are not detained unnecessarily in prison but are able to return to the outside world, possibly with proper supervision if that can be arranged, having regard to the safety of the public.
There was little discussion about Part II of the Bill dealing with criminal proceedings. My noble friend Lord Renfrew raised the taking of samples under Clause 28. He is correct in saying that in many circumstances where blood is sought for use in the new DNA techniques and so forth it will be necessary to take a full and proper blood sample. If that is so, existing powers in Scotland allow for it. Clause 28(6) states:
"Nothing in this section shall prejudice—

(a) any power of search;

(b) any power to take possession of evidence where there is imminent danger of it being lost or destroyed".

I understand that it may be possible to obtain sufficient genetic material for examination without the taking of significant blood samples. That sets the matter in a hierarchy of importance but I must emphasise that, at the end of the day, the individual is properly protected. If more intimate searches or samples are required, it will be necessary to go to the court to secure a warrant.
The noble Lord, Lord Macaulay of Bragar, asked about the evidence of children. He appears to be under the misapprehension that a commission is to be provided to take the child's evidence in advance of the trial with no opportunity for examination or cross-examination. That is not correct. It is envisaged that the child's evidence will be taken before a commissioner, who may be the trial judge, as happened in a recent case in Scotland. As a child is giving evidence there will be the opportunity both to examine and to cross-examine. We are conscious of the fact that if we deprive the accused person of his right to cross-examine we might find ourselves in contravention of the European Convention. As the Bill makes clear, the important safeguard is that the accused should not be in a position to be in direct eye contact with the child in such a manner that the child might be disturbed or frightened about giving evidence. If the noble Lord wishes to explore that matter or any other in Committee, I shall welcome his intervention.
576
The Bill is not controversial in any party-political sense. It will be of considerable importance in properly arranging our affairs in Scottish prisons. There will be a number of important reforms and improvements to our system of criminal proceedings. Doubtless there will be some details which we must explore in Committee. I look forward to that but trust that the proceedings will not be too long or too tedious.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

"Friendly Fire" Incident: Inquest Verdict
4.46 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer to a Private Notice Question which was asked this afternoon in another place. It relates to the inquest into the deaths of British soldiers during the Gulf war from friendly fire. The Answer is as follows:
"I am sure the whole House would wish to join me in extending its deepest sympathy to the families of each of the soldiers who died in this tragic incident.
"The inquest sitting in Oxford into the deaths of nine soldiers killed when their two Warriors were hit by two Maverick missiles fired by two US A-10 aircraft has returned a verdict that each of them was killed unlawfully.
"The Government and relevant legal authorities are considering as a matter of urgency the implication of the jury's finding and verdict. The DPP has asked to see all the relevant papers held by Her Majesty's Coroner and the Ministry of Defence and will consider all the circumstances of the case. The MoD is providing its papers to the DPP. I understand that the DPP has pointed out in a press release that there is no power to prosecute a foreign national in England or Wales for any offence of murder or manslaughter allegedly committed abroad.
"I should also like to take this opportunity to respond to a number of points made during the inquest.
"I am aware that there has been some criticism with regard to the provision of information by the MoD to the families. I can assure the House and the families that our intention has always been to provide as full an account as possible. It was not until 10th July that General Johnston. US Marine Corps, wrote to our joint headquarters at High Wycombe with statements from the pilots answering points raised during our own inquiry. The MoD wrote to the families on 23rd July as soon as it was possible to provide an authoritative account based on the findings of the board of inquiry.
"On the question of procedures in future military operations our own board of inquiry recommended that standard operating procedures for close air support operations must in future

577
include instructions that a grid reference or a latitude and longitude is included in mission briefs and that this is always acknowledged by the pilots. Work on this recommendation is in hand.
"The board of inquiry also recommended that a study be initiated to identify a suitable air recognition system for future use. The Defence Research Agency is undertaking a research programme aimed at assessing short-term solutions as well as options for the longer term. We are exchanging information on possible solutions, and maintaining close contact with the US and other allies.
"We are also working closely with our allies to develop new procedures and training to ensure that, in any future operations, the risks of troops firing on their comrades is minimised".
I add that that has always been the case.
"These events were a tragic incident in the Gulf war. We must try to learn what lessons we can from them. We must at the same time continue to pay tribute to the remarkable achievements of British, American and other coalition forces in the successful liberation of Kuwait, and salute the memory of all those who gave their lives, whatever the circumstances".
4.52 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Viscount for repeating the Answer made to a Private Notice Question in another place and will, I am sure, join with the noble Viscount in expressing our deepest regret for those killed by friendly fire and for the pain and suffering caused to the families involved.
The noble Viscount has been good enough to explain what action the Government propose, but I have one or two questions that I hope the Minister will be able to answer. As regards the attitude of Her Majesty's Government and the Ministry of Defence, are the Government satisfied that the whole matter was properly and openly handled by the Ministry of Defence from the outset and, indeed, by the United States Government from the outset? Was there total honesty? There have been allegations that there were cover-ups and lies told. I should be grateful if the noble Viscount will respond to that.
Secondly, I understand from the Minister that there will be new procedures on how to avoid such an incident occurring in the future, if it is possible. But have the Government any explanation as to why the two A-10 pilots apparently failed to follow the procedures which were carefully followed by other A-10 pilots in the same area on the same day? If so, what is the explanation? The procedures seem to have worked well for some but not in this tragic case.
Thirdly, in view of yesterday's court decision of unlawful killing, which the noble Viscount mentioned, will he advise the House of the action which Her Majesty's Government propose to take? I understand that the matter is in the hands of the DPP who has asked for papers, which is perfectly proper. However, will the Minister give an indication of the legal advice which the Government have received as to whether
578
proceedings could conceivably be possible against the A-I0 pilots involved and, if that is possible, under what jurisdiction and how?
Furthermore, do the Government believe that any such action is desirable? If such actions are not possible or desirable, will the noble Viscount advise the House of the action which the Government will take to ensure that the United States Government take due account of yesterday's court decision? After all, that is a decision which is possibly the half-way stage of a serious trauma experienced by the families of the soldiers who were killed. It demands urgent steps to bring that trauma to an end. Any steps the Government take will have the support of the Opposition.
Lord Harris of Greenwich: My Lords, I too join with the noble Lord, Lord Williams, in thanking the noble Viscount for repeating the Statement. I express on behalf of my noble friends our recognition of the great pain caused to the families of those soldiers who lost their lives in those tragic circumstances.
Is the Minister aware that we welcome unreservedly the steps taken by the Ministry of Defence on air recognition systems and other similar areas to avoid repetition of episodes of this kind on any occasion in the future when we may be collaborating with non-British forces?
Is the Minister aware that many of us recognise that, in the light of the statement by the Director of Public Prosecutions, there is no jurisdiction as regards the British courts? Many of us believe that the continued clamour for some form of action to be taken against the American pilots in the criminal courts is profoundly mistaken and will cause only deeper pain to the families concerned when they recognise that that is quite impossible.
Is the noble Viscount aware that American servicemen too lost their lives as a result of friendly fire, as did many other American and British servicemen in the Second World War? Finally, is he aware that, recognising as we do the great grief of the families concerned, unhappily it is a great mistake to believe that terrible mistakes do not happen in war and that there is some solution available which will minimise the pain to the next of kin?
Viscount Cranborne: My Lords, I am extremely grateful to both noble Lords who have spoken for their parties. The noble Lord, Lord Williams, asked about the attitude of Her Majesty's Government and the attitude of the Americans. I emphasise that my right honourable friend the Secretary of State for Defence from the very beginning, and once again last week during the course of his visit to Washington, made it absolutely clear that we expect the Americans to show the maximum amount of sympathy and sensitivity to the families concerned.
As regards our own attitude, the noble Lord, Lord Williams, asked what action Her Majesty's Government wish to take in particular as regards proceedings which may be possible against the A-10 pilots. I repeat that the DPP has advised and has given out a press release to the effect that we have no jurisdiction in the circumstances which obtained

579
during the course of this tragic incident. I emphasise to the noble Lord some of the implications. First, the Ministry of Defence is considering the implications of the jury findings and verdict. I believe it would be inappropriate for me to offer any further comment until that consideration is complete.
The Director of Public Prosecutions has asked to see all the relevant papers held by both the coroner and the Ministry; and I understand that all the papers will shortly be in the hands of the Director of Public Prosecutions.
The noble Lord asked about the new procedures. The new procedures which we are developing are being developed closely with our allies and with the United States in particular. We want those new ideas for doctrine and for training to ensure that in any future operations the risk of troops firing on their comrades is minimised. I add also that that has been a continuing process. It is not something which is new as a result of a friendly fire incident in the Gulf war. Ever since allied operations began, and particularly when war became such a high technology affair, the armed forces of this country have paid particular attention to the technologies available in order to minimise the effects of friendly fire. That process continues with undiminished vigour.
With regard to the questions of the noble Lord, Lord Harris, I associate myself with the tenor of his remarks. It should perhaps be remembered that during the course of the Gulf war on average around 3,000 sorties per day were flown by allied air forces. The number of friendly fire or "blue on blue" incidents, as I understand is the jargon used in this country, was much smaller in the Gulf war than in previous wars. I suggest that that is a reflection of the considerable care and the advances that have taken place over the years to ensure that the risks are minimised.
I associate myself also with the tribute paid by the noble Lord, Lord Harris, to the American servicemen. They lost a number of their own men in casualties of a similar kind. I am sure that the whole House would like to be associated with the expressions of sympathy sent by the noble Lord, Lord Harris, to our American comrades-in-arms in these tragic circumstances.
5 p.m.
Lord Boyd-Carpenter: My Lords, can my noble friend say whether any disciplinary or similar action has been taken by the American authorities in respect of the two pilots who appear to have failed completely to carry out their standard instructions? Further, can my noble friend assure the House that it is the intention of our Government, as it is of the American Government, not to allow this tragic incident to interfere with or spoil the close and friendly relations between the armed forces of the two countries which co-operated so splendidly in the Gulf war?
Viscount Cranborne: My Lords, I am grateful to my noble friend. The matter of disciplinary action is a matter for the American armed forces and their procedures. I am sure that my noble friend will agree
580
that we would not like the Americans to interfere with our procedures in matters of discipline concerning our own armed forces. He will readily understand what is at stake in circumstances of that kind. With regard to the second part of his remarks, I am delighted to give him the assurance he seeks and am grateful to him for making that point.
Lord Chalfont: My Lords, following on from that reply, does the Minister agree that the remarks made on a television programme by one of the solicitors in the case accusing the two American pilots of cowardice and dishonourable conduct, were unfortunate and unwarranted? Will the Minister dissociate Her Majesty's Government from those sentiments?
Viscount Cranborne: My Lords, we are all well aware of the extraordinary record of courage of the American pilots in wars of all kinds. I know, as he does, that the courage of the American pilots in the Gulf war was second to none.
Baroness Phillips: My Lords, can the Minister say why it was left to the parents of the soldiers to initiate proceedings? Would the Government have taken any action? The Americans landed in the wrong place when entering Israel at one time and have therefore shown that they are not accurate. Surely it is wrong that it is left to the parents and ordinary citizens to take up these cases.
Viscount Cranborne: My Lords, with respect to the noble Baroness, she is being more than a little unfair on a number of points. First, during the recent Gulf conflict I was astonished by the extraordinary accuracy of the high technology weapons employed, above all, by the American forces.
I am sorry, but I cannot remember the second part of the noble Baroness's question. Perhaps she will assist me.
Baroness Phillips: My Lords, I am a simple soul and find it odd that ordinary citizens have to take up these matters.
Viscount Cranborne: My Lords, ordinary procedures were followed; the inquest was held; the verdict was reached. The Ministry of Defence made representations to the Americans of the kind I have described to your Lordships. We all feel sympathy for the parents—no one more than I—but I must make it clear that ordinary procedures were followed. There is no doubt that even if the parents had not been fighting in the way that they have, legally we would be in a similar position as we are today.

Mauritius Republic Bill [H.L.]
5.5 p.m.
Baroness Chalker of Wallasey: My Lords, I beg to move that this Bill be now read a second time.
The Bill is a technical measure required because of the change of status in Mauritius from that of a realm to a republic within the Commonwealth on 12th March 1992. It follows the same lines as well established precedents and seeks to ensure that the

581
operation of our existing law in relation to Mauritius is not affected by the change of status. I trust that noble Lords will agree that the Bill is a noncontroversial one.
The decision to become a republic was of course one for the Government of Mauritius to take and did not in any way require the concurrence of Her Majesty's Government in the United Kingdom.
The new constitution of Mauritius makes provision for appeals to the Judicial Committee of the Privy Council. Hitherto appeals from Mauritius have lain to Her Majesty in Council, but this is no longer appropriate now that Mauritius is not part of Her Majesty's dominions. The Bill therefore makes provision to enable Her Majesty in Council to authorise the Judicial Committee of the Privy Council to exercise the jurisdiction conferred upon it by the new constitution of Mauritius to hear appeals direct from the courts of Mauritius.
I am happy to inform Members that the government of Mauritius have told the Commonwealth Secretary-General that they wish the country to remain a member of the Commonwealth now that it is a republic. The Secretary-General has consulted members of the Commonwealth, who all agree to that proposal.
I am sure that your Lordships will join me in wishing Mauritius and its people continuing peace and prosperity. I commend the Bill to your Lordships' House.
Moved, That the Bill be now read a second time.—(Baroness Chalker of Wallasey.)
5.7 p.m.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Baroness, Lady Chalker, for explaining the Bill to the House. We warmly welcome the information that the Government of Mauritius have applied to become a member of the Commonwealth.
Britain has enjoyed a close and friendly association with Mauritius for nearly 200 years and, in discussing this Bill, it is proper that we should emphasise that our wish is that this good relationship should continue for future centuries.
As the noble Baroness said, the Bill will enable Mauritius to become a republic within the Commonwealth and, as a result, the Governor-General, Sir Veerasamy Ringadoo, will become its first President. Sir Veerasamy will remain President for three months after which Mr. Cassam Uteem, the present Industry Minister, will become President.
The scene is not without its complexities. Perhaps the noble Baroness will deal with a few questions which I believe are of some importance. First, with regard to the elections held in the island last September, there are persistent criticisms that they were "rigged". I understand that the Opposition party in Mauritius has now appealed on that matter to the Privy Council and that a hearing is expected fairly soon. I shall be grateful if the noble Baroness will confirm that the hearing is pending, and, more
582
importantly, that it is in order to introduce this Bill when a number of the island's leading citizens are petitioning the Privy Council.
It would be helpful also if we could be given some information about the aid the Government give to Mauritius, an area for which the noble Baroness has a great responsibility. Can the noble Baroness say whether she has discussed the future aid programme with the Mauritian Government and, if so, with what result?
Finally, over the years the House has taken an interest in Diego Garcia. It is of course a military base currently in US hands. It would be interesting to know whether the profound political changes which have taken place in recent years have affected its defence status. It would be helpful if the Minister could elaborate upon that and tell us what are the current views of the United States and whether there is any prospect that Diego Garcia may be returned to Mauritius in the foreseeable future?
Our hope is that Mauritius will remain a stable and prosperous island with a democratic government. We wish the people of Mauritius a happy and peaceful future in a free society. We shall of course support the Bill in all its stages.
5.10 p.m.
Lord Bonham-Carter: My Lords, I would like to associate myself with the remarks made by the noble Lord, Lord Cledwyn of Penrhos, as regards the Second Reading of the Mauritius Republic Bill which is indeed a non-controversial measure. As the noble Baroness said, it makes provision for the new status of Mauritius as a republic within the Commonwealth. That of course is an option open to all members of the Commonwealth and an example of the flexibility with which that organisation responds to changing conditions, changing times and new realities.
In the past the Commonwealth has suffered both from too high an expectation at some moments and from some neglect in recent years on the part of this country. Perhaps there has been a failure on our part to make the most of the contribution which it can make to world affairs. It seems to me that the Commonwealth could never be a political entity in the sense that the European Community is such an entity. However, it provides a most important link and bridge between the developed and the developing world; between the North and South, and between the East and West. That is something of which we should make the most.
As the noble Lord, Lord Cledwyn, said, Mauritius has an established democratic tradition. The speech which I am making should really be made by my noble friend Lord Thomson of Monifieth who was Commonwealth Secretary in 1967 when Mauritius became independent. He told me that in many ways it was a Labour Party colony with very strong links with the British Labour Party. Its Prime Minister, Sir Seewoosagur Ramgoolam, had long and intimate connections with the Labour Party. The first Governor-General, who was then general secretary of the Labour Party, was Len Williams.

583
The noble Lord, Lord Cledwyn of Penrhos, raised the question of the recent election. It is indeed the case that there have been widespread complaints that it was rigged. As we know, that is a common belief of people who lose elections. It is particularly common and likely to have substance in developing countries, as we know when one considers the recent experience in the Philippines and elections in this country until 1832.
The use of observers seems a good, easy and relatively cheap way of meeting that charge. It is important that the use of observers should not be seen as a confession of weakness or humiliation, but as a sign of confidence that one is ready to see that the procedures are fairly carried out. The recent experience in Zambia seems a good example. I believe that the provision of observers cost only £150,000. Members of your Lordships' House took part and it worked very satisfactorily. I believe that observers will be used again in the coming elections in the Seychelles which is moving towards a party-party constitution.
The noble Lord, Lord Cledwyn, referred to aid to Mauritius which we would be interested to hear about. The Mauritian economy, given the part of the world where it exists, is a relatively prosperous one, with a per capita income of about 2,000 dollars a year. It is an economy which has shifted away from undue dependence on agriculture. It has successful industrialisation and exploitation of tourism. All these factors give ground for hope that its democratic traditions will continue. I join with the noble Lord, Lord Cledwyn, in wishing Mauritius every good wish in the future.
5.15 p.m.
Lord Bottomley: My Lords, in the absence of my noble friend Lord Cocks of Hartcliffe who cannot be present, perhaps noble Lords will allow me to make a contribution, particularly as a result of my very long association with Mauritius. I first met the person who founded an independent Mauritius at the time of the India round table conference. We were taken together to meet Gandhi. He was a medical student and I was an aspiring young politician. The Ramgoolam family made wonderful contributions to Mauritius as we know it today. Those who are running the country will follow that example. I join with all noble Lords in wishing Mauritius a very happy and successful period in the Commonwealth.
5.17 p.m.
Lord Boyd-Carpenter: My Lords, as one who has also visited that lovely island and who greatly enjoyed his visit, I join in sending good wishes. The decision as to whether Mauritius should remain with a monarchical, or have a republican, system is of course a matter for it. We know the decision that has been taken and we wish the people well with it.
Mauritius is a very beautiful island and, as the noble Lord opposite said, it is one which has a fairly high standard of living and a very effective economy. Perhaps I may introduce a slightly more frivolous note: there is one relic of the fact that Mauritius was once a French colony—it has a most excellent cuisine.
5.18 p.m.
Baroness Chalker of Wallasey: My Lords, I should like briefly but warmly to thank the noble Lords, Lord Cledwyn, Lord Bonham-Carter, Lord Bottomley and my noble friend Lord Boyd-Carpenter. This measure was bound to be welcomed by a nation which has won the hearts of so many British visitors. Everyone has a fondness for Mauritius and realises that time must move on. It is about 11 years since I made my first visit there and I have been back on occasions since then. I have watched Mauritius changing its ways as time has gone on.
The noble Lord, Lord Cledwyn, made three main points to which he wished me to respond. The question as regards elections was echoed by the noble Lord, Lord Bonham-Carter. I remember my first visit in 1981. When talking with the then leaders of the Labour government in Mauritius, I said to them that things were happening there of which they should be aware. The government had been in power for a considerable time. Shortly after that the government were ousted from power. At that time we heard the very same criticisms which are being mentioned now.
Therefore, perhaps I may respond on that difficult question. Her Majesty's Government are aware of the rigging claim, but we have seen no evidence of it. If there is a case for the Privy Council to consider—the issue is indeed going to the Privy Council—then we should await the outcome of that consideration. In response to the noble Lord, Lord Cledwyn, I understand that it is in order for this Bill to proceed despite that happening.
Mauritius has a working parliamentary democracy. I am certain that there is no intention in Mauritius that minority rights shall be overridden. That is another comment which I have heard in the past and since the general election in September of last year. The noble Lords, Lord Cledwyn, and Lord Bonham-Carter, asked about aid to the republic of Mauritius. Naturally our aid programme is not going to be affected by the status change in Mauritius. It has had a successful economy, as the noble Lord, Lord Bonham-Carter, said. It does not receive capital aid.
However, Mauritius benefits from a modest programme of technical co-operation, mainly in human resource development. In addition, the Commonwealth Development Corporation manages a substantial investment portfolio, which is projected to rise to some £50 million by 1994. We believe that that will be good for the sort of development that is regularly taking place in Mauritius itself.
The noble Lord, Lord Cledwyn of Penrhos, also asked me about Diego Garcia, an archipelago of the Indian Ocean which, for many years now, has been commented on by party after party. Since independence, Mauritius has maintained a claim to sovereignty. Since the election last September, the Government of Mauritius have been a little more vocal about the matter, but I can assure your Lordships that the maintenance of British sovereignty over the Chagos archipelago was made after full consultation with the pre-independence government of Mauritius. In fact, one of the first ex gratia payments, which was made in 1965, was made in recognition of their consent to the

585
change. That amounted to £3 million. From 1981 onwards, I was involved in providing further help to the Ilois people about resettlement.
We have told the Mauritians that the islands will be ceded to Mauritius when they are no longer required for defence purposes. The initial phase of the defence agreement with the Government of the United States of America will end in 2016, with a continuation for a period of 20 years thereafter if both sides so agree. However, we have no doubt about our sovereignty. It has been continuous since 1814. We continue to be willing to talk to Mauritius to clarify any difficulties or misunderstandings. As the Foreign Office Minister responsible for Africa, I have been involved in these things in a sensible and friendly way with various members of the Government of Mauritius, including its Prime Minister.
The noble Lord, Lord Bonham-Carter, made some comments about neglecting the Commonwealth. I disagree with the noble Lord. Having spent the past six and a half years of my life trying to bring light and friendship to the Commonwealth and having made the most wonderful number of friends in the Commonwealth during that time, I can assure the noble Lord that there is no neglect of the Commonwealth. However, it is most important that we are sensible about what is expected within the Commonwealth. These days, the Commonwealth is a partnership—and no government exemplify that better than the Government of Mauritius who have sought to build up the economy of that island extremely well.
I am most grateful to your Lordships for your welcome of this Bill. In conclusion, perhaps I may congratulate Mauritius on its achievements since independence. It has sustained a working parliamentary democracy and established a prosperous and rapidly developing economy. The country has rightly been described as something of a model for other developing countries. We wish the Government of Mauritius a very bright future.
On Question, Bill read a second time; Committee negatived.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 14th May), Bill read a third time, and passed, and sent to the Commons.

International Law and the Security Council
5.25 p.m.
Lord Kennet Lord Kennet rose to ask Her Majesty's Government what, in their opinion, is the place of international conventional law in the "new world order" and how the executive power of the United Nations Security Council should be related to it.
The noble Lord said: My Lords, perhaps I may add my word of welcome to all those that have already been expressed to the noble Baroness, Lady Chalker of Wallasey. In her role as Minister for Overseas
586
Development in this House, she has a high and deserved reputation, not only in this country but around the world.
In 1988 an American airliner blew up over the United Kingdom, killing everyone on board and some people on the ground. The United States and British Governments found evidence that it was a bomb explosion and, after suggestions that the Syrian or Iranian Governments were involved, later produced prima facie, evidence against two Libyans who are now resident in Libya. The fact, if it was proven, would constitute a horrible crime and the two Libyans, if found guilty, would be horrible criminals indeed. What did the two governments do, and was it the best thing to do?
The international law governing terrorism in the air is the Montreal Convention, which came into effect in 1973. Her Majesty's Government say that the Montreal Convention was not intended to cover acts of state terrorism, but the relevance of that is unclear. However, the wording of the convention nowhere excludes "state terrorism". It gives signatories a perfectly clear route down which to proceed in all cases of air terrorism. First, they may request extradition. We do not, in fact, have an extradition treaty with Libya and nor does the United States. We have never extradited anyone to a country with which we do not have an extradition treaty and I rather think that the United States has not done so either. However, one can extradite people without a treaty.
After they have in one way or another exhausted the resources of their own domestic law, the parties to the convention may go to arbitration and, if that in its turn fails, they may go to the International Court of Justice. If the Government had taken that clearly stated, essentially sensible and obviously law-abiding course of action, they could have obtained a judgment from the court that they were in the right and that Libya was in the wrong and the United Nations Security Council could then have enforced it with a binding resolution.
However, the United States and the United Kingdom did not do that. We went straight to the United Nations Security Council. In this, many think that the two governments twisted the law and that they did so from what some euphemistically call "a position of strength". In fact, it may be that all international lawyers, except those who advise the United States and the United Kingdom Governments, think that. In any case, parties as far apart as the Singapore Times, the Economist and the Iranian Government think so.
The United States and the United Kingdom obtained a non-binding resolution from the Security Council, telling Libya to take "all reasonable steps, etc.", as the world now knows so well. The Libyans have said that they will give a full and effective reply —that is, a reply that will be in accordance with the law.
The United States and the United Kingdom took that course perhaps because they feared that if they proceeded in accordance with the Montreal Convention, they might lose their case in the International Court of Justice. After all, the Iranian

587
Government are currently addressing the International Court of Justice about the shooting down of an Iranian airliner by a United States warship earlier the same year, with an equally great loss of innocent life. The United States has a history of defeat in the international court, and only partly recognises it. The court found against the United States when the CIA mined Nicaraguan harbours, damaging a British flag vessel, among others, and again in a case that the United States brought against the Italian Government.
So the United States and Britain judged—and judged rightly—that the balance of power in the world at that moment was such that they could get from the Security Council a resolution under Chapter 7 of the Charter, which is the chapter about threats to peace and about international security. The balance of power in the world was at that moment determined by the fact that Russia was awaiting the American decision on how much aid it could expect to cope with its economic breakdown and to stabilise its currency, and China was awaiting the American decision on whether it could once again enjoy most favoured nation status. The vote, which was 10 to five, thus went through.
Now the UN charter is the most powerful document in the world, and Chapter 7 is the most powerful chapter in it. It overrides all other conventions and contracts. The International Court of Justice always assumes that the Security Council is its own judge when it applies the charter, and the court has never questioned any of the Security Council's actions under Chapter 7. So the Security Council resolution overrode the Montreal Convention procedure, and prejudged the outcome of the Libyan case before the court. The case was that the United States and the United Kingdom should be restrained from bombing Libya in accordance with their threat to do so. The court decided, as its own precedents required, that Libya must obey the Security Council resolution, and that was that. But the Security Council by this action did perhaps abuse its own great power, by acting before the other, entirely legitimate, procedures had been completed. By effectively interfering in International Court of Justice proceedings, it muzzled the court.
The growth of law in the world has probably suffered. It so happens that the International Court of Justice may have been deprived by this resolution of the possibility of it enhancing its authority where it may matter even more than it does in terrorism cases, namely in judgments about Somalia and the Kurds, which are cases of mass suffering and death. Its authority is now undermined in the Third World, where nobody sees the Lockerbie bombing or the difficulty in obtaining the extradition of the suspects as threats to world peace, however horrible they were. But that is what the Security Council has indeed been induced to say they were.
The question the Government should answer is this: why did they not state that they would not apply to the Security Council for enforcement until proceedings under the Montreal Convention were
588
completed, with a ruling by the International Court of Justice? So far, they have only justified the Security Council resolution by the statement that something had to be done about terrorism. Nobody dissents. The question is whether that was the right something to do.
Perhaps I may repeat what I think is obvious. I am not against the Government for taking energetic measures jointly with the US. I am not against extradition and a trial in Scotland or the US. I am not against an appeal to the Security Council to enforce the decisions of the relevant court. But I do worry about the effect of going to the Security Council instead of the relevant court, thus cutting off the other side's recourse to its judgment. The domestic analogy to this would be the Government hearing and judging criminal cases because their most powerful member did not trust the judiciary to come to the right conclusion. Governments, of course, used to do exactly that, and on the whole we are glad that they have grown out of the habit. The worry about this will continue whether or not the Libyans now agree to extradite the men.
If I were allowed a Motion at the end of this discussion it would be, "To move to resolve that HMG do not do it again". Let us let it all simmer down, and think more objectively next time. Internationally as well as nationally the executive and the courts must keep to their own functions. Might must never come to think it is right; that is obvious. But there is another truth too. Others must never, when they see might, think: well, that must be right.
5.34 p.m.
Lord Bonham-Carter: My Lords, I am not an international lawyer and the argument which we have heard is closely connected with one's interpretation of the Montreal Convention, the status of the International Court of Justice and its relations with the Security Council. As I understand the argument of the noble Lord, Lord Kennet, he is saying that under the Montreal Convention the International Court of Justice could have been used to handle this case and that the route via the Security Council has been taken by the United States, the United Kingdom and France because in the Security Council political muscle can be used. This has given rise to the idea that Libya is being bullied by the great powers, and in some quarters (which the noble Lord did not mention), is even being used to enhance President Bush's electoral prospects.
I shall return later on to the political consequences of the route which the United States, the United Kingdom and France have taken. The advice I have received—in these cases, if one is not an international lawyer, one can only go on advice—is that the Hague, Tokyo and Montreal Conventions sought to plug a gap in international law in respect of air terrorists. The Montreal Convention says that if an air terrorist turns up on the territory of a signatory country, that country has an obligation either to try the terrorist or to extradite him or her. It presents those two obligations. It does not say that the country in question has an exclusive right to try the terrorist. In this case, Libya claimed it had the right to try and that

589
it would try the terrorists in question. But I am also advised—this is where my advice differs from that which the noble Lord, Lord Kennet, has received—that the Montreal Convention does not deal with the case of a member of the security service of a signatory country who commits an act of air terrorism and then returns to the country by which he is employed, as a safe haven. That is not covered by the Montreal Convention.
Lord Kennet: My Lords, will the noble Lord be so kind as to make clear whether he is arguing that the Montreal Convention specifically protects such suspects; and if not, why he thinks that is relevant?
Lord Bonham-Carter: My Lords, it is relevant because if the terrorist in question is employed by the country to which he returns, the likelihood of the trial being fair is diminished. That is the argument.
The International Court of Justice is not a criminal court and there is no question—and nor has the noble Lord suggested it—of the international court being able to try individuals. What it was asked to do was to issue an injunction against the actions put in train by the Security Council at the request of the United States, the United Kingdom and France. They had demanded of Libya a demonstration making it absolutely and categorically clear that Libya had abandoned terrorism. In addition, as an indication of this clear demonstration, they required Libya to hand over the terrorists for trial in the United States, the United Kingdom or France.
It should be clear that the Montreal Convention confers no rights on states; it confers only obligations. That is an important distinction. But in the light of the Security Council's demand and Libya's refusal to comply with that request, the council decided that Libya's conduct constituted a threat to peace. That may indeed be a large claim to make on the basis of the evidence, but that is the basis upon which it took that step and imposed limited sanctions. The international court then refused to order the injunctive relief which was requested from it.
I shall now return to the political consequences of those events to which I referred earlier. There have certainly been those who felt that the use of the Security Council route would be interpreted as bullying; that it would engender sympathy for Libya; and that Arab states would want to get Colonel Gaddafi off the hook on which he appeared to be impaled. I understand those anxieties, and from time to time as the saga developed I have shared them. But in the event it does not appear that such fears have been justified. The embargo has in fact been backed by the Arab states, including Syria. Moreover, according to a report in today's edition of the Independent, Egypt is putting pressure on Colonel Gaddafi to comply. In the meantime, in an interview published yesterday in the Financial Times, Colonel Gaddafi is portrayed in a contrite mood. Therefore, it looks as though the anxieties that were felt—and, as I said, not unreasonably felt—do not in the event seem to have proved justified.
5.41 p.m.
Lord Richard: My Lords, I think that my noble friend Lord Kennet has indeed done the House a service by tabling this Question tonight. I am bound to say that I find myself in the same position as the noble Lord, Lord Bonham-Carter, in that I am not an international lawyer. Not only that, but I have the great disadvantage of being the only person to be speaking in the debate who has not received, in advance, a brief from an international lawyer. Therefore, to a certain extent, what I have to say comes from a position of not quite invincible ignorance.
It strikes me that my noble friend Lord Kennet has raised two issues. First, there is the role of the Security Council either as a legislator or indeed as a court, and the relationship between what the Security Council does and what the International Court of Justice may or may not do in relation to the same set of facts coming before either the council or the court. Secondly, if the Security Council had the legal right to do what it did in this case, was it wise that the United States and the United Kingdom should in fact go down that particular route of using the Security Council rather than the international court?
If I may, I should like to take both those issues in that order. As regards the Security Council versus the International Court of Justice as almost a court of first instance, I do not think that the two are necessarily mutually exclusive. Indeed, I think that my noble friend accepted that point. It is quite open to a state —is it not?—to go to the Security Council and ask it to make a decision as to whether the set of facts that is being considered falls within Chapter 7 of the charter. As I understand it, there is no obligation on the part of any state to pursue the Montreal Convention route before the issue goes to the Security Council. I suppose that it is a matter of judgment by the state that considers itself to be affected as to whether or not it wishes to go along the Security Council or the Montreal Convention route.
We had the situation in which the British and American Governments were taking the view that the terrorism which was emanating from Libya was state-sponsored and not merely the isolated acts of one or two people who might in such circumstances be employed by the Libyan Government; in other words, it was a complaint about Libya's actions as a state. In those circumstances, the fact that the Security Council route was chosen rather than the Montreal Convention route does not seem to me to be a matter of particular censure. Indeed, it was clearly in the minds of the British and American Governments that, if they pursued that route, the chances of getting the two men extradited from Libya were likely to be greater than if they had pursued the Montreal Convention route. At least, I assume that that was what was in the Government's mind—otherwise, I do not understand why they acted in that way.
Having got their determination under Chapter 7 and having imposed the sanctions, we then move into a realm not so much of international law but one of international politics. I do not think that anyone is arguing—not even my noble friend Lord Kennet—

591
that the sanctions resolution is invalid. My noble friend indicates that he is not by shaking his head. I refer to the decision of the Security Council that it was a breach of the peace under Chapter 7 and that therefore it could attract—and did attract—a sanctions resolution. If the sanctions resolution is not invalid, then, in that case, the political judgment was made that that was the appropriate route that should be followed. Not only was that the political judgment that was made; it was also a political judgment which was accepted by the rest of the Security Council; otherwise, the resolution would not have been passed. No veto was cast against it and, indeed, a sufficient number of countries voted in favour of the resolution —at least, the requisite nine clearly did, but I do not know what the actual vote was. Certainly, no veto was cast against it and the resolution was passed.
Was it wise for the Government to pursue that route as opposed to pursuing another one? I am bound to tell my noble friend that I do not think it was necessarily unwise for the Government to act in the way that they did. Whatever else it is, the Security Council mechanism is infinitely quicker than the mechanism of using the Montreal Convention. One has to set up the arbitration and, if the arbitration is unsatisfactory, one has to go to the International Court of Justice. Then, if that court proves unsatisfactory, one has to come back, so to speak, full circle and return to the Security Council. If the object of the exercise is to get those two men out of Libya to be tried—as I assume it is—it seems to me that to use the Security Council route in the way exercised by the Government cannot be condemned as unwise. Indeed, I would find it difficult personally to condemn it as such. I hope that it works and that the two men involved are extradited and stand trial.
In conclusion, I should like to make one general point. We have had a very brief debate about an extremely complex issue but one which is, in a sense, very simple. My noble friend put it concisely in his opening remarks. The state of world politics now means that the procedures of the United Nations and of the international community will have to change. When I read the title of my noble friend's Question for tonight, I assumed that he would deal with such issues as whether or not, in the history of the Gulf war, the Security Council Military Staff Committee should have been used, and whether in fact it was legal for the Security Council in effect to mandate the United States to carry out enforcement action under Chapter 7. I thought such issues would be raised. Although my noble friend did not say what I thought he would say, I hope that he will forgive me if I say what I had intended to say to him.
We are now in a state of international politics where the existing procedures of the Security Council will have to be changed. At present, such changes are taking place ad hoc as the exigencies of a particular situation arise and as the exigencies of that situation seem to demand. I shall give your Lordships one example: the Military Staff Committee. It is a body mentioned in the charter which consists of the chiefs of staff and the military representatives of the five
592
permanent members to whom direction of United Nations enforcement policy action under Chapter 7 is specifically delegated under the charter. I have said at this Dispatch Box before—and I say it again tonight —it seems to me that the sheer speed and technology of modern warfare makes that type of overriding institution very difficult to fit into a modern war.
Where I differ from the Government is that I feel that they do not have perhaps a coherent and sensible approach to the kind of amendments to the procedures of the United Nations Charter—indeed perhaps even to the constitution of the Security Council—that the times in which we are now moving and which we are increasingly going to have to meet in the future, are going to demand. I wish I could see a more coherent attempt on the Government's part to analyse the way in which the United Nations can be used more effectively in the future. As yet, I have not seen it.
However, perhaps I may say to the Government that I am delighted to see that they seem to be more enthusiastic about the United Nations now than they have been for many years past. Long may it continue! I hope that they will continue to give that extraordinary international institution more power and more support.
On the narrow point raised by my noble friend tonight, I have to say that I cannot go along with him in saying that the Government were necessarily unwise in pursuing the Security Council route. I think that it made for a swifter decision; and in terms of applying political pressure on Libya, it may indeed have proved to be more effective.
5.51 p.m.
Baroness Chalker of Wallasey: My Lords, I am grateful to the noble Lord, Lord Kennet, for the opportunity this evening to address these important matters. I am grateful too to the noble Lords, Lord Bonham-Carter and Lord Richard, and particularly to Lord Richard for what he said in the last part of his remarks.
This is an important matter. Like all previous speakers I believe in this debate, I am not an international lawyer. Indeed, I am not even a lawyer. Therefore I hope I tackle this from a common-sense point of view with the backing of those experienced in international law.
In the wording of Lord Kennet's Question, he invited us to consider the place of international convention law in the "new world order". The "new world order" is not a term we normally use. But it is clear, not least from the contributions tonight, that the international order has undergone rapid change in recent years. It will probably, as the noble Lord, Lord Richard, said just now, continue to do so. One of the most encouraging features of this evolution is the growing realisation that respect for international law at all levels is essential for maintaining international peace and security.
The noble Lord, Lord Kennet, referred this evening —as did the noble Lord, Lord Bonham-Carter—to the International Court of Justice. I hope there will be no doubt in your Lordships' House about the United

593
Kingdom's support for the ICJ, the principal judicial organ of the United Nations. We brought the ICJ its first ever case, concerning the Corfu Channel incident in 1946. I am sure that noble Lords will be interested to note how, in that case, the United Nations Security Council and the ICJ were able to reinforce one another's efforts towards dealing with that incident. I am happy to report to your Lordships that only 10 days ago the dispute was finally set to rest by an Anglo-Albanian Memorandum of Understanding. That has taken a long while, but it was a successful outcome.
Alone among the permanent members of the Security Council, the United Kingdom has always accepted the court's compulsory jurisdiction. Fifty-four other states have now done so; and we are encouraged that more developing countries and countries from Eastern Europe, too, are among them. It is an encouraging sign that more disputes than ever before are being brought before the court for settlement, and that the court, under its British president, now has more cases pending before it than at any time in its history.
The ICJ has lately had to address the question which is at the centre of Lord Kennet's debate tonight. That is the relationship between international conventions and the executive power of the Security Council. As a number of noble Lords have recalled, Libya submitted two applications to the ICJ on 3rd March this year invoking the 1971 Montreal Convention on the suppression of unlawful acts against the safety of civil aviation.
I should like to respond now to a point raised by the noble Lord, Lord Bonham-Carter. He said that the Montreal Convention imposes obligations on states rather than rights. He is absolutely correct. The Montreal Convention does not confer an exclusive right to try the accused. Libya itself has been in breach of one of the main provisions of the Montreal Convention—Article 10—if the evidence alleged against her agents is proved to be true, by supporting offences against the safety of aircraft.
I shall now return to the separate cases brought against the UK and the US. Libya asked the court to declare that the Montreal Convention gave Libya a right to insist on prosecuting the two Libyan nationals accused of bombing Pan Am flight 103, and that the convention obliged the UK and US to assist a prosecution in Libya.
Secondly, as a preliminary issue, Libya requested the court to grant interim measures which would prevent the UK and US from taking action to require Libya to surrender the accused to any jurisdiction outside Libya, and from taking steps which would prejudice a Libyan prosecution. As the House will be aware, the court decided the preliminary issue in the UK's favour on 14th April. It has not yet considered the main issue.
I do not intend to discuss the case in detail. It is for Libya to decide whether it wants to pursue it. I shall, however, say two things. First, any state has a perfect right in law to invoke provisions of treaties which confer jurisdiction on the ICJ. But this is not to say that its motives in doing so are immune from scrutiny.
594
It would be wrong if that were so. I have to say that the Libyan attempt to seek interim measures had all the appearance of yet another manoeuvre to avoid facing up to its responsibilities. This was the first time in the history of the United Nations that a Government sought to use the ICJ to frustrate the operations of the Security Council. That this was indeed the objective emerged clearly in the oral hearings before the court. During all the weeks (about six in total) that had elapsed since the unanimous adoption by the Security Council of Resolution 731, Libya had engaged in nothing but evasion and prevarication. It did not turn over the persons accused of the bombings of the US and French airliners. Libya did not disclose what it knew of the crimes. Libya did not take concrete action to end its support for terrorism. Since then, I am sorry to say, it has been more of the same.
Secondly, we find it extraordinary that Libya should invoke the Montreal Convention. The Montreal Convention requires states to do everything possible to prevent terrorist offences of precisely the kind which caused the Pan Am and UTA disasters. Here there is evidence that the two accused were acting as agents of the Libyan state—the comment that the noble Lord, Lord Bonham-Carter, made. Trial in Libya would make the Libyan authorities judge and jury and accused in the case. To argue that the convention should be read as giving Libya the right to conduct the prosecution would give those accused of these awful crimes refuge in their home state, which was one of the main objects of the international community to prevent.
The ICJ reached its decision on Libya's application for interim measures on 14th April. It rejected the Libyan request by a majority of 11 to 5. In handing down its judgment, it made it clear that Libya was obliged, under Article 25 of the charter, to accept and carry out the decisions of the Security Council; and that, under Article 103 of the charter, that obligation prevailed over obligations under any other international agreement, including the Montreal Convention. There is therefore no legal obstacle to Libyan compliance with the Security Council's resolutions.
Clearly, that first ruling by the court is of central importance to the theme of the debate initiated by the noble Lord, Lord Kennet, in drawing attention to the provisions of the UN Charter and to the relationship between two of the principal organs of the UN system. Article 103 is unequivocal: obligations under the charter must prevail over those under other treaties, where the two are alleged to be in conflict.
The ICJ's verdict on interim measures was preceded by the adoption of Security Council Resolution 748. As the House is aware, that resolution sought to bring about Libyan compliance with the earlier resolution by imposing selective sanctions on Libya. The resolution was adopted on 31st March. The sanctions were deliberately postponed until 15th April to allow Libya a further opportunity to comply. Once again, Libya allowed the time to slip by without evincing any serious intention of complying. We find that regrettable. But it would be quite wrong for us to regret that the Security Council moved to take that

595
second decision when it did. We cannot accept the argument that the Security Council should have awaited the ICJ's verdict on the application for interim measures, let alone its decision on Libya's principal case, which could take years. The ICJ and the Security Council are separate organs of the UN, each with its own responsibilities. There is no reason in our view why the Security Council should refrain from exercising its powers pending consideration of an application to the ICJ. It would clearly be wrong if any country, seeking to forestall the Security Council from carrying out its responsibilities under the UN Charter, could do so by the simple expedient of putting in an application to the ICJ. The council was entirely right not to be deflected from its course by Libya's applications.
A separate question is thrown up by tonight's debate. It is whether the matter addressed in Security Council Resolutions 731 and 748 is the proper business of the council. On that point, we are in no doubt, either. Article 24 of the charter confers on the Security Council primary responsibility for the maintenance of international peace and security. That cannot exclude international terrorism and the measures needed to combat it. International terrorism represents one of the most significant threats to peace around the world. If international terrorists are allowed to wield their scourge unchecked, the threat to international peace and security and to the rule of law is clear. How much more serious the threat to international order when terrorist attacks, whether in the skies above Lockerbie, in St. James's Square or in Northern Ireland, are supported actively by a foreign state. That is a challenge that the Security Council cannot afford to ignore. That is why in their declaration adopted after their high-level meeting on 31st January this year, under the Presidency of my right honourable friend the Prime Minister, the members of the council expressed their deep anxiety over acts of international terrorism, and emphasised the need for the international community to deal effectively with all such acts. In adopting its Resolutions 731 and 748, the council was doing exactly that.
I wish to assure your Lordships that the Government have no hidden agenda in this matter. Our demands are set out quite clearly in the relevant resolutions. They are perfectly reasonable demands, given the nature of the crimes that have been committed, to which the noble Lord, Lord Richard, referred. There were 441 people killed in the bombing of Pan Am 103 and UTA 772. Our objective is to bring those responsible to justice and to ensure that such atrocities do not happen again. We are not trying to change the Government of Libya. That is for the Libyan people.
We are not abusing the Security Council. We are not seeking to undermine the rule of law or the provisions of international conventions. On the contrary. Our aim is to bring to justice those accused of these appalling crimes, using the instruments at our
596
disposal, and to see to it that Libya finally and convincingly renounces the use of terrorism. If we are to be serious about combating terrorism, we can do no less.
I hope that it will be clear from these remarks that Her Majesty's Government are deeply concerned here about the rule of law. International treaties and conventions of course have an important part to play in upholding this. But they are not always complied with. Under the Montreal Convention of 1971 no state party may support terrorist attacks on aircraft. The convention alone cannot solve the problems raised by the bombings of Pan Am 103 and UTA 772. And the convention does not address, nor was it designed to address, the wider issues of Libyan involvement in international terrorism over many years. Given the nature of the matter, and Libya's persistent refusal to mend its ways, the Security Council had to act. International conventions have a central place in the international order; but there may be occasions when the power of the Security Council as well must be brought to bear. I believe that it was wise to do so. The delays, the failure to stop international terrorism, and all that runs from that, would otherwise be laid at the door of those who did not take the right action at the right time. Going to the Security Council was undoubtedly that, and in that action, we have been widely backed throughout for trying to bring to justice those responsible for these atrocities.
Lord Kennet: My Lords, before the noble Baroness sits down perhaps I may ask her one question. She was reading from a prepared text. The first part of her speech consisted of a defence of the legality of the Government's action. Does she recognise that I was not alleging that the Government had behaved in any way illegally, but was questioning whether it was politically wise to use the law in the way that it has been used?
Baroness Chalker of Wallasey: My Lords, although I prepared a text, because I considered this matter to be of supreme importance and believed it right to do so on this occasion, I was using notes at the same time and interweaving them.
The word "abuse" was used in the noble Lord's remarks, I believe, and it was certainly used in the debate. While he may not be accusing the Government of acting illegally but politically unwisely, I am afraid that the subtlety that is well accepted in your Lordships' House may not be interpreted like that outside.
I thought it was important to put on the record without any doubt that I believed it was both politically sensible and, for the security of people flying in aircraft in the skies, very wise indeed that we should have taken that action. It is being widely supported by Arab states, non-Arab states and all countries who are determined to bring this kind of terrorism and indeed terrorism of any type to an end as soon as possible.
House adjourned at ten minutes past six o'clock.