Lords Sitting of 7 July 1994

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chester.): The CHAIRMAN OF COMMITTEES on the Woolsack.

Film Industry: Assistance
Lord Goold Lord Goold asked Her Majesty's Government:
In the light of the decision by Paramount Communications Inc. to move the filming of its £45 million movie "Brave Heart" from Scotland to Ireland, what progress has been made in developing a new films policy which will attract investment into the United Kingdom.
Baroness Trumpington: My Lords, of course we regret this decision by Paramount. However, British production studios have busy schedules during 1994, with several foreign productions having been attracted here. My right honourable friend the Secretary of State for National Heritage is considering what can be done to improve the level of investment in British film production still further and will make an announcement in due course.
Lord Goold: My Lords, I thank my noble friend for her reply. Is she aware that since the Irish Government introduced a favourable tax regime for film production in May 1993 an estimated £100 million has been attracted into Ireland? Bearing in mind the Irish experience, have the Government made any assessment of what might be attracted into this country by way of investment if the UK had a similar tax policy?
Baroness Trumpington: My Lords, the Government are fully aware of the tax measures introduced in Ireland last year. It remains our view that low tax rates and a broad tax base with few special reliefs provide the best framework for sustainable long-term economic growth. We have, however, introduced a number of measures to assist the film industry.
Lord Donoughue: My Lords, we can all understand anyone being attracted into going to Ireland but Britain and the British film industry have unsurpassed creative and technical skills. Does the Minister agree that what we lack is a positive investment environment in which the British film industry and film production can flourish? The industry, through the Impact Report, has made a number of specific proposals to achieve that. When will the Government respond to those specific proposals and when will we have a White Paper on this important question?
Baroness Trumpington: My Lords, last year my right honourable friend the Secretary of State for National Heritage held a series of consultations with all sectors of the film industry. He heard their views on what can be done to encourage greater activity in the British film production sector. He will take account of
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all the proposals put to him at that time and through the Impact campaign and make an announcement in due course. The Government certainly realise the cultural significance and export earning potential of British films. That is why my right honourable friend has been engaged in the conversations. The noble Lord will appreciate that it is a matter of horses for courses.
Baroness Seccombe: My Lords, does my noble friend agree that although in Britain we have a very strong entrepreneurial film industry raising investment in tough international markets, it is still disadvantaged because many of its leading competitors benefit from much more favourable tax regimes?
Baroness Trumpington: My Lords, the leading competitor is the US film industry from where most of the international investment in the British industry comes. There are no tax incentives for the film industry in the US.
Lord Jenkins of Putney: My Lords, does the noble Baroness agree that it is not desirable to enter the complicated field of film finance in question and answer? One welcomes the fact that the Government are about to introduce a proposal whereby they will give the kind of financial support to the industry which is enjoyed in many other countries. In advance of seeing that proposal and discovering whether it is worthy of approval, one welcomes the idea.
Baroness Trumpington: My Lords, I am grateful to the noble Lord for his remarks. Sometimes to my horror, and sometimes to my pleasure, my right honourable friend the Secretary of State reads everything that goes on in this House. I feel sure that he will read the noble Lord's remarks with pleasure.
Lord Birkett: My Lords, are the Government aware that not only Ireland but many other countries make special efforts through subsidies and tax concessions to attract film investment? Does the noble Baroness agree that the loss of an investment of the kind mentioned in the Question is not only damaging to the film industry but also to the economy of this country in general?
Baroness Trumpington: My Lords, other countries provide a range of support schemes, as the noble Lord implies. Many are based on levies which recycle industry money into the production sector but those schemes are subject to change. I fear that comprehen-sive details are not held centrally but, as I have said several times, my right honourable friend is looking into all these matters and will be reporting.
Lord Lyell: My Lords, can my noble friend give any indication about the tax treatment of individual entertainers, which is a little different from the investment and corporation tax treatment referred to by my noble friend, especially with regard to withholding tax? I believe that the United Kingdom tax regime is pretty well unique.
Baroness Trumpington: My Lords, it is a well established internationally agreed principle that income derived from a performance should be taxed in the

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country where the performance occurs. As in many other countries, the UK system of withholding tax is no more than a collection mechanism to secure at least some of the tax rightfully due. Any tax paid may normally be set against home liability under a double taxation agreement.
Lord Ewing of Kirkford: My Lords, is the Minister aware that there is considerable interest in making a film of the book of the noble Baroness, Lady Thatcher, The Downing Street Years? Would the Government be prepared to subsidise the production of such a film; and if they were, what certificate would they give it?
Baroness Trumpington: My Lords, I wonder whether the Irish Government would be prepared to lend 1,600 soldiers.
Lord Clark of Kempston: My Lords, does my noble friend agree that if special fiscal incentives were given to the film industry, other equally deserving industries, particularly those in the export field, would feel that they had been badly treated and would press the Government for tax concessions for their industries?
Baroness Trumpington: My Lords, whenever there is any question of one industry benefiting in any tax field one can well imagine that every other industry is watching like a hawk to see what is going on.
Lord Aberdare: My Lords, can my noble friend say how it is that Ireland, which is a member of the European Community, is able to give extra incentives to its film industry?
Baroness Trumpington: My Lords, European countries are still allowed to make their own laws.
Lord Hailsham of Saint Marylebone: Some of them are.
Lord Stoddart of Swindon: Read the Maastricht Treaty!
Lord Annan: My Lords, is it perhaps the case that labour costs are more favourable in Ireland? Can the Minister say how far restrictive practices in our country are responsible for this change of policy?
Baroness Trumpington: My Lords, it is not for me to answer for the Irish tax situation. British film production costs are deemed to be of a revenue nature. Tax relief is available either through the income matching or cost recovery method. Further relief may be available through the capital allowances system or through the special rules introduced in 1992.

VE Day: Commemoration Plans
3.10 pm.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What plans they have to celebrate VE Day and the end of the war in Europe.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My
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Lords, events to commemorate the anniversary next year of the end of the war in Europe will be held over the Bank Holiday weekend between 6th and 8th May. Although our plans are at an early stage, we expect these to include a service in St. Paul's Cathedral, a luncheon at Buckingham Palace for visiting heads of state and a parade in central London.
Lord Molloy: My Lords, I am most grateful for that reply which I find very encouraging. I can assure the Minister that it will also be appreciated by our ex-servicemen and women's associations. Does the Minister agree that in our democracy the views of those who oppose any form of celebration are to be heeded too? Does he further agree that it should also be understood that the celebration is really about a great allied victory which rescued Europe and, incidentally, Italy and Germany as well? It is right for us to honour our ex-servicemen and women, particularly those who were slain or maimed, and also the victims of racism. Does the Minister agree that it was a magnificent victory which saved decent humanity and democracy?
Viscount Cranborne: My Lords, the noble Lord, Lord Molloy, is well known for the assiduity with which he represents the views of former servicemen. Indeed, his position as an honorary official of the Royal British Legion is much appreciated in your Lordships' House. I believe that I can reassure him by saying that I am already in close and regular contact with the representatives of veterans' organisations, particularly those of the Royal British Legion as I am sure the noble Lord knows. We hope that there will be a separate commemoration in August next year which will specifically focus on the contribution not only of servicemen and former servicemen but also civilian services—and civilian women, as I am reminded. The commemoration will focus not only on this nation but also on the Commonwealth countries. It will be a great family occasion.
Lord Campbell of Croy: My Lords, while the arrangements by the Ministry of Defence for the recent commemorations in Normandy and in the Portsmouth area were admirable and much appreciated when they took place last month, will the Government ensure that any proposals for celebrations by the general public on VE Day are discussed with veterans' organisations before they are announced?
Viscount Cranborne: My Lords, I am most grateful to my noble friend for his kind remarks. I shall make sure that they are drawn to the attention of the people who really did the work for this year's commemora-tions. As far as the second part of my noble friend's question is concerned, the short answer is certainly yes.
Baroness Jeger: My Lords, is the Minister aware that there are many of us with very cruel memories of what happened to the Forgotten Army in the Far East? Does he agree that by emphasising VE Day there will be many men and women who served in the Far East who will feel some neglect and lack of appreciation? How can the Minister put that right?
Viscount Cranborne: My Lords, I am most grateful to the noble Baroness for raising what I believe to be an extremely important question. The best way I can answer her is to say that I have already asked the noble Viscount, Lord Slim, who is a respected Member of your Lordships' House, to join my steering group to make sure that the very eventuality she fears does not take place.
Lord Wyatt of Weeford: My Lords, does the noble Viscount agree that an important feature of this event is to remind the French and the Germans that if we had not stood alone against the Germans in Western Europe between May 1940 and December 1941 they would not now be able to bully us in the European Union?
Viscount Cranborne: My Lords, I say to the noble Lord, Lord Wyatt, that in the wake of recent events in Corfu the word "bully" in that context is perhaps a little inappropriate. I hope that he will reflect on the timing of that part of his question. I am happy to say to the noble Lord that all of us are well aware of the unique role which our country proudly played—before my birth but not his—in the saving of liberty in Western Europe. We shall make sure that that element is firmly recognised next year.
Lord Alport: My Lords, following the supplemen-tary question of the noble Baroness, does my noble friend agree that it would be more important to call this a celebration not of VE Day but of the end of the Second World War? Does he further agree that that would cover all the fronts on which British servicemen and women were serving during the whole of that time? I believe that there is a great danger that those who served in the Far East will perhaps be looking forward to a VJ Day which, I believe is too much to expect. Does my noble friend agree that the whole celebration should be concerned with the end of the Second World War and not with VE Day alone?
Viscount Cranborne: My Lords, I wholly agree with my noble friend in what he says. I am sorry that I did not make our outline plans—and I emphasise that so far they are outline plans—entirely clear. The theme of the VE Day commemorations and celebrations—and I use both words advisedly, particularly in the light of certain events and strictures which were made of Her Majesty's Government a little earlier this year —will be to celebrate 50 years of peace in Western Europe. With the help of the Royal British Legion it will also bear the stamp of the two words "tribute" and "promise" so we shall look forward to the contribution of youth. On top of that we are well aware that VE Day was not the end of the war. It is for that reason that I emphasise the fact that we shall be looking to the anniversary of VJ Day to be a great national and Commonwealth event to commemorate the matters to which my noble friend referred.
Lord Williams of Elvel: My Lords, is the noble Viscount aware that we associate ourselves entirely with what the noble Lord, Lord Alport, has just said? Will the noble Viscount give the House an assurance that the Ministry of Defence, which I understand is to be in
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charge of these operations—and perhaps the noble Viscount himself; who knows what will happen in the future?—will not hire expensive public relations firms at enormous cost to invent spam fritter parties and other things which are wholly irrelevant? Does the Minister agree that this is a very serious occasion?
Viscount Cranborne: My Lords, perhaps I may say with a certain degree of pride that the Ministry of Defence, in the context of D-Day, did not hire any public relations consultants. I can confirm to the noble Lord that the department has been given the honour and responsibility of taking the lead in arranging the VE Day and VJ Day commemorations and that other government departments will have their part to play in what I hope will be, if I am allowed to use the phrase, a collegiate effort in that matter. I do not anticipate that it will be necessary to hire public relations firms for that purpose. If we have to change our minds in that regard I certainly undertake that the noble Lord and your Lordships' House will be among the first to know that we have done so.
Lord Williams of Elvel: My Lords, I am grateful to the Minister. I have one small question to ask. Given that in 1945 there was the arrival of a Labour Government, will the MoD and the Government ask the Opposition to join with them in planning these events? These are national events and it is only right that the Opposition should be invited to participate.
Viscount Cranborne: My Lords, I am extremely grateful to the noble Lord for his offer. I hope that the events will indeed be national events, not party political events, and that those who help us to plan the events will be chosen on their merits rather than for their party political allegiance. I am sure that many members of the Labour Party and of the other Opposition parties will help us in that.

Klondykers: Safety Inspection
3.20 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether special arrangements are being made to screen or inspect foreign factory ships proposing to visit Ullapool or Shetland to check adequacy in safety, insurance and resources.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, following last year's inspections, and in the light of the recommendations concerning klondykers in the report of the noble and learned Lord, Lord Donaldson, Safer ships, Cleaner Seas, the Marine Safety Agency is putting in hand arrangements for inspections of klondykers as they arrive for the herring season.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that Answer. Although those vessels greatly assist Scottish fishermen by buying their mackerel and herring, has not the report of the noble and

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learned Lord revealed serious inadequacies in ships coming from countries which were formerly part of the Soviet Union? Is it possible for us to help those countries to improve their vessels through some of the schemes that are now in operation which help with technical assistance?
Lord Mackay of Ardbrecknish: My Lords, the noble and learned Lord's report rightly drew attention to the problem of the klondykers, as did the inspections last year by inspectors from the Marine Safety Agency. We intend to do this year what we did last year. We have produced guidelines for klondykers covering especially the safety of vessels at anchor—the vessels spend virtually all of their time at anchor—which have been translated into Russian and will be given to all klondykers on arrival. In addition, Lerwick Harbour Trust produced an updated multi-lingual information pack also for distribution to the klondykers through their agents. I hope that by those methods we shall be able to communicate to the klondykers the kind of safety arrangements that we wish them to have in place when they come to our waters.
Baroness Robson of Kiddington: My Lords, have the Government investigated and made an analysis of the possible impact on the pollution of the waters of places such as Loch Broom, where the klondykers are at anchor just outside Ullapool? Is it possible that the pollution that is created through discharges from the klondykers is responsible for the reduction in fish stocks in places such as Ullapool?
Lord Mackay of Ardbrecknish: My Lords, I do not think that there is any evidence at all on the latter part of the noble Baroness's question. This is the first time that I have heard that suggested and I cannot think that there is a link between any decline in the fish stocks of, for example, salmon and sea trout in coastal waters and any pollution that is caused by those ships. When they board such ships, the inspectors are careful to ensure that the klondykers are dealing properly with the effluent. However, it is also fair to point out that the klondykers play a very important part in the fishing economy. Some 40 per cent. of the United Kingdom's mackerel catch and some 75 per cent. of our herring catch are sold via the klondykers. Therefore, while one must ensure that they enter our waters safely and efficiently, we must also remember their vital importance to the UK fishing industry.
Lady Saltoun of Abernethy: My Lords, will the Government please make sure that the guidelines apply not only to klondykers visiting Ullapool and Lerwick on Shetland but also other ports in Scotland and the United Kingdom?
Lord Mackay of Ardbrecknish: My Lords, I can give the noble Lady that assurance. In particular, I can give her an assurance about Fraserburgh, with which she has a particular relationship. The klondykers are situated principally at Lerwick throughout the season but, as she
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knows, a fair number of them are moored off Fraserburgh and Peterhead, and the inspection will include klondykers off those two ports.
Lord Clinton-Davis: My Lords, is the Minister aware that we fully support and commend the action that is being taken by the Marine Safety Agency? Can he indicate under what powers the inspectors are acting? Is it under the Paris memorandum of understanding or is it under any other powers? Will the Minister be kind enough to address himself to the second question posed by the noble Lord, Lord Campbell of Croy, about whether any international funds are available, par-ticularly through the European Union, to enable the deteriorating standards of vessels to be dealt with at an international level?
Lord Mackay of Ardbrecknish: My Lords, I know that some Community funds are available to help in marketing food in Eastern Europe. Equally, I know from previous experience that those funds are extremely difficult to unlock. I do not know whether the herring and mackerel industries in the United Kingdom have managed to unlock them yet. I shall have to look a bit more carefully into the question of know-how. However, I can advise the noble Lord that the powers vary a bit. If the vessel is in port, as is defined by statute, we can inspect it and detain it if it is unseaworthy. However, vessels which are not in port but which are in our territorial waters—and most of the vessels that we are talking about do not come right into port at, for example, Lerwick, but moor outside the port—can be inspected but not detained.

Tateos Michaelian and Mehdi Dibaj
3.25 p.m.
Viscount Brentford Viscount Brentford asked Her Majesty's Government:
Whether they will make representations to Iran about the murder of the Rev. Tateos Michaelian and the disappearance of the Rev. Mehdi Dibaj.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we utterly deplore the murders of the Rev. Tateos Michaelian and the Rev. Mehdi Dibaj in Tehran. The German Presidency of the European Union is today preparing a European Union démarche. Subsequent action will depend on further information and responses from Tehran.
Viscount Brentford: My Lords, I am grateful to my noble friend for that Answer and for pointing out that the person in the Question who was named as missing has now been found murdered. Does she consider it appropriate to press Iran for the rapporteur to pay another visit there? I believe that that has been resisted by the Iranian Government. The Iranian Government have signed Article 18 of the International Covenant on Civil and Political Rights but are not abiding by it. I am glad that the European Union will apply pressure to Iran in order to stop the murders.
Baroness Chalker of Wallasey: My Lords, we are only too willing to press the Government of Iran to allow Mr. Galindo-Pohl, the United Nations Secretary-General's special representative, to have access again to Iran. He has been denied access since 1991, having first gone there in 1989. With our European Union partners we called on the Iranian Government in March this year to co-operate fully with Mr. Galindo-Pohl. They have not so responded.
The Lord Bishop of Chester: My Lords, is the Minister aware of the Church's tremendous concern over this matter, which is so great that the most reverend Primate the Archbishop of Canterbury would have been here himself to express his support if he had not been out of London? Is the Minister further aware that that concern is amplified particularly at a time when the religious education syllabus has set an example of how we in this country can maintain the priority of our faith and yet respect other faiths? In the light of that, is the Minister aware that the Church very much hopes that the leaders of other faiths will unequivocally condemn the kind of murderous fundamentalism which the latest outrages embody?
Baroness Chalker of Wallasey: My Lords, I agree with every word that the right reverend Prelate has said. In addition to the murders of which I have spoken, we are urgently looking into the disappearance of at least two other Christian pastors. We know that the Iranian Church leader Banipal Natanael has been detained in Ahwaz and that Hassan Shahjamali has been detained in Shiraz. One other Christian has been released. They are part of a long line of people who have been taken into detention mainly because either they have reverted from Islam to Christianity or they belong to a community such as the Bahai community which is particularly targeted by Iran. We shall do all that we can to help to ensure that other faiths join us in making such representations.
Baroness Blackstone: My Lords, we on these Benches share the concern of the Government and our other European Union partners. In the light of Iran's deplorable human rights record not just in relation to Church leaders but also in relation to minorities, women and political opponents of the regime, I wonder whether the Government, with our European Union partners, would request the Iranian Government to allow a delegation from Amnesty International to visit Iran to investigate the murders and, indeed, to hold discussions on other human rights matters there.
Baroness Chalker of Wallasey: My Lords, one is always willing to request that Iran receive such a delegation from Amnesty International or receive the Secretary-General's special representative. I honestly cannot say with any confidence that such a request would even be listened to. The critical thing is to find a way of changing the minds of the leaders of Iran. That will take some time for all of us who are committed to doing that.
Lord Avebury: My Lords, does the Minister agree with the leading article in The Times that there is blood
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on the hands of the mullahs in Tehran? Although it will not be possible conclusively to establish their responsibility for those murders to the standard required in a court of law—any more than we can for the deaths of the 26 people who were killed at the shrine of the Imam Reza in Mashad a few weeks ago—is it not a fact that the state, and no other body, has exhibited hostility to the minority religions in Iran; that it is the state which has detained and tortured Medhi Dibaj for 11 years; and that it is the state which has perpetrated over 100 assassinations of its opponents overseas? Is the Minister aware that the mullahs' regime is now compounding its villainy by accusing others of the murders that they have themselves committed? If the special rapporteur, Professor Galindo-Pohl, is not to be admitted to Iran he should nevertheless be asked by the European Union to conduct an inquiry into those atrocious murders from outside the country, requesting through the radio, or whatever other means he can use, evidence from those who have knowledge of the murders.
Baroness Chalker of Wallasey: My Lords, it is not just the state but some extreme groups which are equally guilty of detaining and murdering. We will do all that we can to put that right.

Business of the House: Summer Recess
Viscount Ullswater: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, it is expected that the House will adjourn for the Summer Recess on Tuesday 26th July. It is expected that the House will sit at 11 a.m. on that day. It may also be for the convenience of the House to know that it is expected that the House will return on Monday 10th October.

Criminal Justice and Public Order Bill
3.31 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
Clause 32 [Effect of accused's failure to mention facts when questioned or charged]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 32:
Page 21, line 9, at beginning insert:
("( ) Subsections (1) and (2) below do not apply unless prior to the questioning mentioned in subsection (1) the constable told the accused in ordinary language—

(a) the substance of the purpose and nature of the questions to be asked, and

(b) the effect of the section if at trial any fact not mentioned when questioned were to be relied upon by way of defence, and of his right to remain silent,

and unless a record of the questioning made by a constable at the time (or as soon as reasonably practical thereafter) is tendered in evidence at the trial.

The noble Lord said: My Lords, in moving Amendment No. 32, for which I put down a marker on

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Second Reading in the hope that Clause 32 would stand part, I shall speak also, if I may, to the other amendments in the group.
The substance of the argument in support of Amendment No. 32 and the substance of the argument in opposition to Amendment No. 37 were deployed fully in Committee by myself in moving Amendment No. 25 and by other noble Lords. I therefore propose to be brief.
The two main questions arising are, first, whether it is Amendment No. 32 or Amendment No. 37 which affords fair, reasonable and requisite safeguards before Clause 32 can bite. The second question is whether government Amendment No. 34 can be accepted without a large measure of assurance —assurance along the lines of that provided by Amendment No. 32—and whether at the end of the day such assurance as may be given would render it, in your Lordships' opinion, inappropriate to divide on Amendment No. 32.
No political considerations are involved. As my noble friend the Minister said on a previous group of amendments, the cookie crumbles across party lines. That is a fortunate way, I hope, of describing the situation with which we are faced today. As your Lordships know, Amendments Nos. 32 and 37 afford safeguards before Clause 32 can bite so that some adverse inference may be drawn from the exercise of the right to silence.
Amendment No. 32 provides a fourfold safeguard. The constable must tell the accused in ordinary language not just the substance, the purpose and nature of the questions, but also the effect of the section and his right to maintain silence. In the tailpiece, the amendment states that some record should be made and tendered in evidence.
The suggestion is that those safeguards are fair, reasonable and requisite in our disordered state of society: fair to the accused, whether he be innocent or guilty; fair to the Crown; and fair to that mass of law-abiding people—the victims. Those considerations apply to Amendment No. 38 to Clause 34 and to Amendment No. 40 to Clause 35. As for Amendment No. 37, your Lordships may well think that it tips the scales of justice far too far in favour of criminals. It runs counter to the overall purpose of Clause 32. It excludes questioning on the doorstep, in the street, in the police car, or indeed, in any place whatever other than at a police station, with a lawyer in attendance, if requested, who can authenticate the tape of the interview.
The considerations apply also to Amendment No. 39 to Clause 34 and Amendment No. 41 to Clause 35. Just a few days ago, the Government tabled Amendment No. 34. The amendment disposes of Amendment No. 33 in my name because on arrest a caution is given. That was a matter of particular concern to the noble and learned Lord the Lord Chief Justice, whom we are delighted to see in his place, in Committee. Therefore, I shall not be moving Amendment No. 33.
The Government's Amendment No. 34 does not dispose of Amendment No. 32. That amendment
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envisages some new form of caution as reflected in subsections (a) and (b), to which I have referred, and as adopted in subsection (a) of Amendment No. 37.
Assuredly, come what may a new form of caution must be devised. What is the position of the Government? What assurances can be given by my noble friend Lord Ferrers? This morning in chambers I received by fax—I was little late in but it was not long ago—proposals as to a new form of caution by amendment to the PACE code—
Lord Wigoder: My Lords, I hope that the noble Lord will forgive me for intervening. He said that, in view of the Government's Amendment No. 34, he proposes not to proceed with Amendment No. 33. Is not the position that in many cases the caution can be given substantially before the moment of arrest? In that case, does not the noble Lord's Amendment No. 33 provide an additional protection which is not provided by the Government's amendment?
Lord Campbell of Alloway: My Lords, I take the noble Lord's point. Subject to the opinion of the House, I thought that it provided a sufficient safeguard. However, if it were the wish of the House I should move the amendment for the purpose of discussion. As at present advised, I am not disposed to press it. One must take a broad, common sense view. I am seeking not to be over finicky, technical or lawyer-like about this affair. I am doing my best.
This morning I received proposals as to the new form of caution by amendment to the PACE code. I shall leave my noble friend the Minister to deal with them because I have not had the opportunity to assimilate their full effect in detail.
In the tailpiece of Amendment No. 32 there is a statutory provision as to a record of the questioning being tendered in evidence. What is to be done about that? Together with the fax that I received this morning, I received notice of the intention to introduce by amendment to the PACE code some validating procedure at the police station. It goes back over everything that was said in the police car, on the door step, in the street and where have you—or what was not said—up to that point. Will this procedure be along the lines proposed by the noble and learned Lord, Lord Ackner, in subsections (b) and (c) of Amendment No. 37? What assurances will be given by my noble friend the Minister? It is a matter for your Lordships, but will such assurances as to the new form of caution and the validating procedures render it unnecessary to seek the opinion of your Lordships' House on Amendment No. 32?
Amendments Nos. 35 and 36 appear to be subsumed by my Amendment No. 42. Subject to what is said on this issue, it is the intention to move that in due course. The Government's Amendment No. 41A to Clause 36 is wholly acceptable but it in no way disposes of Amendment No. 42 as a requisite safeguard. I beg to move.
3.45 p.m.
Lord Ackner: My Lords, in most contentious issues of major importance—and this is certainly one—it is often helpful, first, to identify and to isolate those matters which are common ground. As I see it, there are seven. First:
"allowing inferences to be drawn from a person's silence under police questioning … is an important change".—[Official Report, 23/5/94; col. 494.]
So said the noble Earl, Lord Ferrers, on the third day of the Committee stage. The noble Earl is not given to overstatements when making admissions on behalf of the Government.
Secondly, the justification for characterising such a change as an important change is well-known to your Lordships. For nearly 100 years, by reason of Section 1 of the Criminal Evidence Act 1898, the prosecution has been prohibited from commenting on the accused's silence. As a result of judicial decisions during the past few decades judges are not permitted to invite juries to draw adverse inferences from the accused's silence.
Thirdly, and once more I quote the words of the noble Earl, Lord Ferrers, which are to be found in the same column of Hansard:
"such a change must be accompanied by proper safeguards".
Fourthly, your Lordships are fully aware of the need for such safeguards. I quote from the Work on Evidence of the late, much-respected Professor Sir Rupert Cross. At page 31 he stated:
"People react to charges in very different ways and this means that all inferences from silence must be made with caution. A silent party may have been confused or taken by surprise; he may have considered the allegation unworthy of an answer; he may have wished to conceal matters concerning himself or others which are irrelevant to the case before the court. Reflections of this nature suggest that before a person's silence is allowed to count against him the circumstances must have been such that an explanation was called for and there must have been no apparent reason, apart from consciousness of guilt, for its absence".
In the debate on Second Reading to which I have referred, the noble Lord, Lord Renton, identified certain classes of particularly vulnerable subjects. That is to be found at col. 490 of Hansard.
Fifthly, in the past 12 years—that is, from 1981 to 1993 —two Royal Commissions (the Philips and the Runciman) by a majority concluded that no change be made in the present position. The result was that neither the prosecution nor the judge should be entitled to invite the jury to consider using an accused's silence as evidence of his guilt. However, in each report the minority expressed the view that, subject to certain precautions, adverse comment on an accused's silence should be permitted.
The minority on the most recent Royal Commission stated at paragraph 10 on page 51:
"Only relevant questions asked in a room with audio or visual recording, preferably with a legal representative present, but at least after the suspect had been offered the opportunity of taking legal advice, would qualify for later comment at trial".
The minority in the Philips Commission reached substantially the same view. Neither of those two minorities would have accepted the amendments proposed by the noble Lord, Lord Campbell of Alloway, or the Government.
Sixthly, between the reports of the two Royal Commissions—that is, in May 1989—Mr. Douglas
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Hurd, the then Home Secretary, set up a working group chaired by a senior civil servant, one of the Home Secretary's own advisers. It reported in July 1989. It is clear from that report that proper safeguards not only involved being cautioned about the consequences of silence but included access to legal advice being obtained before the suspect insisted on remaining silent.
Seventhly and last, the purpose and function of the precautions are to ensure that an affirmative answer can be given to the vital question raised by Lord Reid when this matter was debated over 20-odd years ago when the 1lth Report of the Criminal Law Revision Committee, upon which the Government's proposals were based, were so badly savaged in this House. The question which the noble Lord raised was: are you being; fair to the accused?
Perhaps I may now briefly deal with the amendments to Clause 32 in my name and in the names of the noble Lord, Lord Alexander of Weedon, the noble Viscount, Lord Runciman, and the noble Lord, Lord Irvine of Lairg. We propose four safeguards before silence under police questioning could be used against an accused person. First, the purpose and the nature of the questions must be made clear. That is totally lacking from the Government's proposal and we submit that, without such knowledge, an innocent suspect may fear that anything that he says may have implications well beyond those which he can envisage.
Secondly, a caution must be given warning of the possible effects of failing to mention any fact which may later be relied upon. I pause to say only that the amendment in the name of the noble Lord, Lord Campbell, refers to "any fact", whereas there is a proviso in Clause 32(1) which states:
"being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned".
Thirdly, a lawyer should be present and consulted or the suspect should have stated in writing that he does not require a lawyer. That precaution is missing from both the amendments proposed by the noble Lord, Lord Campbell, and the Government.
Fourthly, questions must be tape recorded or some other contemporaneous record of the interview must be authenticated by the suspect's lawyer. Although some form of record is provided for in the amendment moved by the noble Lord, Lord Campbell, there is no obligation to have any authentication at all, with all the problems which we know that that can give rise to. Nor is that so on the part of the Government in relation to what took place at the scene, because ex hypothesi, a lawyer is not present.
As I sought to indicate by reference to two previous Royal Commissions and the report of the Home Office working party, there is nothing radical or novel about our proposals. They are wholly consistent with the minority reports of those two commissions and the recommendations of the working party.
What is startling and surprising here is that the Home Secretary has set out to ignore not only the majority views of those two Royal Commissions but even the minority views, which were far less stringent, and the report of his own working party. Bearing in mind that

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the last Royal Commission was designed principally to ensure the avoidance of miscarriages of justice, one would have thought that, if anything, he would have abided by the majority decision of the Royal Commission or, at the very least, by the minority view. One would not have expected him to downgrade it further. We have the odd situation that there is missing from this legislation the very safeguards for which we all look—namely, a method of reconsidering, outside the courts, allegations of miscarriages of justice; and, secondly, reducing their possibility in relation to police interrogation.
Your Lordships are aware that regrettably there are a few, although I respectfully submit not many, cases where police officers are so frustrated by the current right of silence, as it is inaccurately called, that they have invented admissions made by the accused. They have "verballed him", as it is known. I ask where the protection is to be found in future for the accused against the police inventing his very silence in such language as may be euphemistically imagined as, "Get lost", "Mind your own business", or words to that effect. Where are the safeguards to protect an innocent suspect whose reasons for remaining silent may include protection of his family or friends, a sense of bewilderment, embarrassment or outrage or a reasoned decision to wait until the allegation against him has been set out in detail and he has had the benefit of legal advice?
As was pointed out by the Royal Commission in its recent report at paragraph 13:
"Members of ethnic or other minority groups may have particular reasons of their own for fearing that any answers they give will be unfairly used against them … It is now well established that certain people, including some who are not mentally ill or handicapped, will confess to offences that they did not commit whether or not there has been impropriety on the part of the police. The threat of adverse comment at trial may increase the risk of confused or vulnerable suspects making false confessions".
Perhaps I may now refer to the caution proposed by the Government and its relevance. As advised by the Law Revision Committee, the caution should be:
"If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back until you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now and you would like it written down, this will be done".
That was the conclusion reached by a committee consisting of about seven judges, the DPP and other distinguished professors.
What is now proposed is something a little shorter. I managed to winkle it out of the noble Earl by teasing him that, since he said there is to be a caution, we should know what it is. The present proposal, without prejudice because it may be changed, reads as follows:
"You do not have to answer any question, but if you do not mention now something which you later use in your defence the court may decide that your failure to mention it now strengthens the case against you. A record will be made of anything you say and it may be given in evidence if you are brought to trail".
During the debate some 20 or so years ago when the report of the Criminal Law Revision Committee was
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considered, the noble and learned Lord, Lord Hailsham, accepted the following observation by the Bar Council in its committee's report:
"The great majority of people who fall foul of the criminal law, or who are suspected of doing so, are inarticulate or weak or fearful or inadequate or deprived".
I ask: what are they going to make of that sort of caution? There was a certain degree of investigation made in regard to the caution given in Ireland which is, I believe, in between the two that I have just mentioned. According to the report of Justice on that subject, the evidence showed that it was widely misinterpreted by suspects who believed that it meant that there was an obligation to answer any accusation put.
Research carried out by the Royal Commission looked at the ability of suspects to take in information at the police station. It found that the present caution, which is well known to your Lordships, was only fully understood by 42 per cent. of suspects, although a higher percentage—52 per cent.—understood what is arguably the most important part; the right to remain silent.
The caution clearly says, "Here is a right, a right to remain silent, but you would be foolish to exercise it". Or, put another way, "It would be better for you if you talked". That is just the sort of situation in which a wise person would say, "Very well, I should like some advice in those circumstances as to whether I should exercise my right to remain silent or whether I should talk. I can't do that at the scene of the crime without some assistance". I respectfully submit that the amendment we have put forward represents the minimum safeguards if we are to maintain the standard of fairness which is an essential part of our administration of justice.
4 p.m.
Earl Ferrers: My Lords, it may be for the convenience of your Lordships if I speak now in order to put forward the Government's view on the amendments tabled in my name to enable all of us to know exactly where we stand as regards the different amendments. I hope that that will prove to be to your Lordships' convenience.
The government amendments are Amendments Nos. 34, 41A and 187. The whole group of amendments affect Clauses 32 to 36 which deal with the inferences that may be drawn from a person's silence. The issue is whether additional safeguards should be added to those clauses and, if so, what form they should take.
As your Lordships know only too well, the effect of the clauses is to allow proper inferences to be drawn from a person's silence when questioned by the police or at his trial. The changes we are making in those clauses are not, I believe, a matter of such profound constitutional significance as some people would have us believe. But they are important; indeed, they are most important. Any change in the rules of criminal evidence is likely to be a delicate and sensitive matter and it is right that this House should take care in trying to get the answer right. It is a matter on which many of your

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Lordships can speak with far more learning, personal experience and erudition than ever I could hope to attain.
When considering the government amendments, we reflected carefully on what was said in Committee about the need for additional safeguards, especially in relation to Clause 32. A number of different views were expressed in that debate about how the clause should operate. There are those, like the noble and learned Lord, Lord Ackner, who argue that no inferences should be able to be drawn from the silence of a person unless he has, first, had access, or at least the opportunity of access, to legal advice. Others, including the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Campbell of Alloway, agree with the Government in saying that it should be possible to draw inferences from a person's silence under less formal conditions; for example, when he is questioned at or near the scene of a crime. But they would make it a condition for drawing such inferences that the person must have been warned about the possible consequences of his silence. That view the Government feel is the correct one: it is embodied in government Amendment No. 34 and the others tabled in my name. Amendment No. 187 makes the same sort of amendment to the Criminal Evidence (Northern Ireland) Order 1988.
Amendment No. 34 has one great virtue. As a matter of fact it has a great many virtues. But there is one particular virtue. It is short. Some may even say that it is very short. It consists of only two words. That should appeal to those noble Lords who are always demanding brevity, especially brevity in drafting. However, those two words carry great significance. Their effect is that no inference could be drawn from a person's silence under police questioning unless he or she had been warned—by being cautioned—of the possible adverse consequences if he or she were to remain silent.
Your Lordships may wonder what is the precise legal effect of the words "under caution". The terms of the caution are laid down in the codes of practice issued under the Police and Criminal Evidence Act 1984. The present caution does not, of course, contain a warning about the possible adverse effect of silence. But we intend that a new form of caution should be introduced after statutory consultation and before the clauses on inferences from silence are brought into force.
The new caution will contain two essential elements, as has been the case in Northern Ireland for the past five years. The first is a reminder to the suspect that he is not obliged to answer questions and that any answers which he may give may be given in evidence. The second is a warning about the potential dangers of his remaining silent.
The noble and learned Lord, Lord Ackner, tweaked me because the words are not available to the House. He may feel that the wording of the caution should be settled now and not left until after Royal Assent. However, I must tell the noble and learned Lord that I understand the view that when Parliament is asked to agree to new legislation it should be informed how that legislation will work in practice. I acknowledge that the wording of the caution will be a very important element in the implementation of Clause 32. That is why my
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right honourable friend the Home Secretary gave an indication of the possible wording of the new caution last December when the Bill was introduced.
The noble and learned Lord, Lord Ackner, told the House the possible wording. I shall not weary your Lordships by repeating it. I have no doubt that, by now, noble Lords will have remembered it perfectly. I shall only emphasise that we are not committed to any exact wording at this stage. My right honourable friend is bound by the Police and Criminal Evidence Act to consult on any changes to the codes of practice. We cannot anticipate the statutory consultation process which requires that any proposal for a change in the codes of practice must be published; that any comments on the proposals must be considered; and that the draft of a revised code must be laid before both Houses for affirmative resolution.
On a matter as important as this it would be all the more undesirable to attempt to short-circuit the consultation process with the police, the judiciary and others who can comment from experience. I hope that your Lordships will therefore rest content with what I have been able to tell your Lordships about the wording of the new caution.
The Government have a further proposal to make which is relevant to Clause 32. We intend to introduce a new procedure at police stations for putting on the record any important exchange between a police officer and a suspect which has occurred before the beginning of the formal interview. The procedure is essentially one which was recommended by the Royal Commission on Criminal Justice. It proposed that this procedure should apply to confessions which are made outside the police station. We propose that it should also apply to silence.
The procedure will be that a police officer who is interviewing a suspect at a police station must caution the suspect first and then put to him any significant admission, or failure to answer a question satisfactorily, which may have occurred before the beginning of the formal interview, probably outside the police station. The police officer will ask the suspect whether he wishes to confirm, to deny or to modify that earlier statement or silence. Failure to follow this procedure would not automatically make the previous exchange inadmissible, but it would be a matter to which the court would no doubt have regard in deciding whether it should be admitted. The new procedure will be embodied in the codes of practice, in the same way as the new caution to which I referred.
Those are the Government's proposals. After having listened carefully to the views which were expressed in Committee by your Lordships we have reached the best conclusion we could on which of the various proposals represented the best way forward. I hope that your Lordships will agree that we have arrived at a reasonable conclusion that will meet with the approval of your Lordships and that it will address the majority of the apprehensions that were expressed at Committee. It would, I suppose, be too much to expect total unanimity of acceptance by your Lordships—that would be a novel experience probably in the past 700 years and certainly in the past 12 months.

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The proposals clarify the circumstances in which these new arrangements will operate. They will help to avoid needless disputes. Silence will be able to be taken into account, but only after a caution has been given and, at a formal interview, the police will be required to put the matter again to the suspect.
In the other corner of the ring, if one may so describe it, stands the noble and learned Lord, Lord Ackner, with his amendment. He is the only one of the four signatories to this amendment who voted in favour of Clause 32 standing part of the Bill. He has made it clear that he strongly supports the main principles of the Government's proposals on inferences from silence. I am grateful to him for that support. We disagree with him, though, on his amendment; but I hope that this is no more than a friendly disagreement on issues which many might consider to be, relatively speaking, matters of detail.
The noble and learned Lord's amendment has a number of elements. One is that a person should be warned about the possible effect of his silence before being questioned. I, of course, have nothing to say against that, because it is what the Government themselves are proposing to do through the amendments which I shall move and to which I have spoken. Where we part company, however, is over the next part of his amendment, which would require the police to inform a suspect of the purpose and the nature of the questions which he is to be asked before interviewing him.
The Royal Commission on Criminal Justice welcomed the progress which has been made through the new national training package for basic interviewing skills launched by the Home Office in January last year. This, quite properly, encourages the police to use interviews as a way of seeking after truth, rather than as a way of merely putting pressure on a suspect to admit something which the police officer believes that he has done. But the amendment of the noble and learned Lord would oblige the police to put a good many of their cards on the table at the beginning of every interview. I doubt whether that would be sensible.
Clause 32 as it stands allows the court or the jury to draw an inference if a suspect failed to give information which he could reasonably be expected to mention in the circumstances at the time. If the suspect failed to grasp what the police were driving at, and that is why he did not mention a point, he can of course make this perfectly clear at the trial. I think that that should be a sufficient safeguard.
The most important feature, though, is that the amendment would prevent a court or a jury from drawing any inference from a person's silence unless he was interviewed in the presence of his lawyer, or had declined the services of a lawyer. We disagree with that for three reasons. First, it would confine the effect of Clause 32 to interviews which are carried out in police stations. It would remove the ability to take any account of what had happened at the scene. Secondly, as regards its effects on interviews at police stations, it is on the whole unnecessary. Thirdly, it would make no allowance for those exceptional cases in which access to a lawyer is delayed.
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If I might take the first objection—
4.15 p.m.
Lord Ackner: My Lords, it is kind of the noble Earl to give way. It would have no effect at all on any admissions made at the scene. It would only have an effect on silence at the scene.
Earl Ferrers: My Lords, the noble and learned Lord pre-empts that which I was just about to come to. As I said, if I might take the first of my three objections, our disagreement is, I hope, clear. The Government share the view of, among others, the noble and learned Lord the Lord Chief Justice that a court or jury should be able to take into account a person's failure to give relevant information when questioned under caution at or near the scene of a crime.
When I say relevant information I mean, of course, information on which the person later relies for his defence and which he could reasonably have been expected to mention in the circumstances at the time. It is a bit of a mouthful to keep repeating those words, but we need to keep reminding ourselves how carefully Clause 32 is framed. It is framed on the work of the Criminal Law Revision Committee in 1972 which many eminent lawyers—in which happy company I would be unable to include myself—have praised.
One can easily imagine the circumstances. A police officer goes to the scene of a riot where looting is in progress. He sees a man carrying several bottles of whisky in a bag. He says, if noble Lords can imagine it, "Excuse me sir, would you mind telling me whether this whisky belongs to you?" The man declines to answer this question and the officer then cautions him and repeats the question. Again, the man makes no reply. When he is interviewed at the police station some hours later, after being cautioned afresh, he is asked the same question again, after being reminded that he has failed to answer the question so far. He then claims that he had bought the whisky some time ago —he cannot remember where—and that he was taking it to a party when he found himself caught up in the riot. The police do not believe him, and he is prosecuted.
What is there unfair about allowing the prosecution to make adverse comment at trial on his silence after he had been warned about the risk of staying silent? If when asked at the scene the man had said "No it's not my whisky. I admit that I stole it" that fact could be put before the court. But if he says nothing that fact, at present, cannot be. I suggest that there is no reason why silence should not be treated in the same way as a confession, subject only to the additional safeguard of cautioning—which we have accepted.
The second objection to the noble and learned Lord's amendment arises when we come to questioning at a police station. Here the safeguards, which are established by the Police and Criminal Evidence Act and by the associated codes of practice, apply in full. Those safeguards are substantial. A suspect, arriving at a police station, must be reminded of his right to receive legal advice and must be given the opportunity to consult a lawyer. If he wishes, he will be interviewed in the presence of a lawyer. The interview will be tape

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recorded, unless it is a summary offence. If it is not tape recorded, an interview record will be made and will be shown to the suspect.
Against that background I suggest that the amendment tabled by the noble and learned Lord, Lord Ackner, is unnecessary. It provides for safeguards that already exist, under separate primary legislation and under statutory codes of practice, which are daily taken into account by the courts and which will apply to those clauses just as they at present apply to admissions. Those safeguards are not set in concrete: they can, if necessary, be improved and updated by changing the codes of practice. We are, in fact, preparing some amendments to the codes of practice in order to implement the recommendations made by the Royal Commission on Criminal Justice.
My third objection to the amendment of the noble and learned Lord, Lord Ackner, which is a serious one, is that it makes no allowance for those exceptional circumstances where access to legal advice is delayed for a limited period. That is not a frequent occurrence, but it is one which the Government and Parliament have recognised in primary legislation. It is for the courts to judge whether a confession which is made in those circumstances is admissible in any particular case. So it should be with any failure to mention a significant fact. I would find great difficulty in advising your Lordships to accept any amendment which automatically excluded the evidence from an interview which had been carried out in those exceptional circumstances.
I welcome the fact that the noble and learned Lord's amendment has been modified since Committee, so that an interview from which inferences could be drawn would not invariably have to be tape-recorded. The amendment now allows the alternative of a "contem-poraneous record", which is what the police would undertake whenever practicable. But it requires that record to be authenticated by a lawyer. That, of course, means that a lawyer would have to be present throughout the interview. I have already explained why I believe that that is undesirable. That is why I could not advise your Lordships to accept the amendment tabled by the noble and learned Lord, Lord Ackner, and why I believe that the amendment which is tabled in my name is better.
Perhaps I may refer to the amendments of my noble friend Lord Campbell of Alloway. I am very grateful for my noble friend's support for the Government's policy on inferences from silence. The purpose of the government amendment is to address in a slightly different way the concern which he and others expressed in Committee about Clause 32. My noble friend referred to the new form of caution which is to be used in relation to this clause. I am sure that he will accept the assurance which I have already given that the caution will be revised and that it will contain the two basic elements I mentioned earlier. I have explained that it would not be possible to by-pass the statutory consultation process for changes to the codes of practice.
My noble friend's amendments to Clauses 34 and 35 would require a police officer or customs officer to advise a suspect of his right to remain silent. Those clauses refer to persons being questioned by the police
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after being arrested. The police must caution a person if they interview him after arresting him. As I have already explained, the new form of caution will say that a person questioned by the police is not obliged to answer questions. Therefore, I believe that my noble friend's amendment is unnecessary.
My noble friend's amendment to Clause 36 would require that no inferences may be drawn by the court unless by reasoned finding and decision. I believe that the safeguards already contained in the clauses are sufficient: a court may draw such inferences, as appear proper. Judges will direct juries as necessary, and I am sure that they will do so with scrupulous care.
There are one or two other technical amendments, but the substance of the matter is contained in Amendment No. 34.
Lord Irvine of Lairg: My Lords, I desire to speak in relation to this group of amendments, and in particular in support of the amendments to which I have added my name, Amendments Nos. 37, 39 and 41.
The proposition that a caution of a suspect by a police officer before he is questioned amounts to a sufficient protection against a court relying on inferences from his silence or relying upon what may be a false or unreliable confession staggers me. But that is the proposition behind Amendment No. 34 in the name of the noble Earl. It is the only amendment in this group which the Government have brought forward. I will study with care in Hansard tomorrow what the noble Earl has just said, but I gained the distinct impression that he said at one point that the invocation of the right to silence was for all practical purposes to be regarded as equivalent to an admission.
Earl Ferrers: My Lords, perhaps I may interrupt the noble Lord. That is not a correct interpretation of my remarks. If I gave that impression, I am sorry. It was certainly not the impression that I intended to give.
Lord Irvine of Lairg: My Lords, very well. We shall look at the text tomorrow. How could a caution conceivably amount to sufficient protection against adverse inferences from silence or against false or unreliable confessions? IF there is a suggestion that it could, then that staggers me. A caution does no more than warn a suspect that what he says may be evidence against him. The caution may be of greater or lesser particularity, particularly in relation to reasons associated with silence.
A caution is surely irrelevant to the precautions external to the suspect who is the subject of the questioning envisaged in Amendments Nos. 37, 39 and 41. Those precautions would ensure that there is objective verification of any confessions that may come forward from questioning which could be disputed.
I look forward to the contribution to this debate from the noble and learned Lord the Lord Chief Justice, who I am pleased to see is in his place. I look forward to it on the basis that I am about to suggest. His concern is recorded in today's press that we may not have in the next Session legislation to set up an independent body to deal with miscarriages of justice (an expectation which caused these Benches to abstain from putting

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down amendments to this Bill to establish such a body here and now). That concern would surely run counter to any support for Amendment No. 34 in the name of the noble Earl.
I invite the noble Earl to say when he replies to the debate whether it is now the position that we shall not have in the next Session legislation to set up a body to deal with miscarriages of justice. I ask that question because I submit to the House that we should have means external to the suspect who is the subject of the questioning to verify disputed confessions. That is all the more important if an independent body to deal with alleged miscarriages of justice is not promptly to be brought forward.
The primary point that I make is this. We should have procedures in place which are calculated to prevent miscarriages of justice occurring, in particular the availability of procedures which must apply before any inferences from silence can arise which are external to the suspect. Those are procedures which would provide for the external verification of disputed confessions. Secondly, we should have procedures for dealing with miscarriages of justice if, sadly, they happen.
From what we have read in the press, an independent body to deal with miscarriages of justice appears likely to be postponed to an uncertain date. I invite the noble Earl to assist the House in assuring us otherwise if he feels able to do so.
4.30 p.m.
Lord Taylor of Gosforth: My Lords, the principle that a jury should, in appropriate cases, and subject to a judge's direction—and I stress that very important point —be entitled to draw proper inferences from the silence of an accused person, either in the face of police questioning or at his trial, is now accepted. But, as I said in Committee, the proposal needs to be accompanied by proper safeguards for the suspect. In this I agree with all noble Lords who have spoken thus far. The question is: how far should the safeguards go?
In my view there are three reasons why the form of the clause which we considered in Committee was unsatisfactory. First, we are making a very significant change. The words of the current police caution are as well known as any formula in the language. It is therefore vital, if justice is to be done, for all suspects in future to be put on the clearest possible notice that it is not only their statements to police officers which may be used against them at their trial but also their unreasonable failure to mention when questioned any fact that they will rely upon at trial.
Secondly, the clause in its previous form was very widely drawn. It would have allowed comment at trial not only on the silence of a suspect but also of someone who at the time of the questioning was regarded only as a potential witness —for example, during routine house-to-house inquiries. That would have been oppressive.
Thirdly, the original clause would greatly have widened the scope for allegations to be made, whether true or not, of police malpractice. We have over the years unfortunately become accustomed to complaints
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about so-called "verballing" of suspects by police officers. The dangers posed by Clause 32 have been described vividly in the other place as "non-verballing". In simple terms, a defendant against whom unreason-able silence was alleged could insist at trial that he did provide answers to all the questions the police asked at the scene or on the way to the police station but that the police found the answers inconvenient and so ignored them. The ambush defence, which we seek to abolish, would thus have risen phoenix-like from the ashes.
I do not propose to deal in detail with all the various proposals in the amendments before us. Following the Committee stage, I made a number of suggestions to the noble Earl, Lord Ferrers, and to the Home Secretary as a result of which Amendment No. 34 was framed, together with the very important parallel changes which the noble Earl has outlined in the form of the police caution and in the PACE codes. I believe that those changes will remedy the original defects in the form of Clause 32 by requiring a caution to have been administered—a new form of caution—before a suspect's silence can feature in the evidence against him.
The amendment addresses the first two of my concerns. As to the first, the new caution will make clear to the suspect that the law has changed and that he may no longer be safe in refusing to give any account of himself. As to the second, the very fact that the caution has to be administered ensures that the clause applies only to someone under active suspicion of being involved in criminal activity.
There is—and this is the crucial matter—the third problem of "non-verballing". I appreciate the anxieties expressed by my noble and learned friend Lord Ackner, and by the noble Lord, Lord Irvine of Lairg, in arguing for Amendment No. 37. However, the effect of that amendment would be to remove the possibility of any inference being drawn from silence until the suspect had reached the police station. They are content with that. I think that it goes too far. It would create an imbalance, an illogical imbalance, in the law because comment could be made—as it can now—on statements or admissions made at the scene of the crime but comment could not be made on silence at that stage which might in some circumstances be just as eloquent.
The noble Lord, Lord Irvine of Lairg, suggests that there is no equivalent to be found between admissions and silence. I agree. But if his logic is to be followed through, why is there not proposed an amendment which says that admissions and statements made before the police station should not be admissible unless all the panoply of tape recorders, defence lawyers, and so on, are present? If we are content to admit evidence which is incriminating when it amounts to admissions at that stage, before the police station is reached, why are we so chary of allowing comment to be made on silence, especially when it is, I remind the House, always open to the court on the direction of the judge to consider that it was not reasonable to expect the person to have mentioned the particular fact at the time?
Perhaps I may remind the House that the clause would only bite if the court or jury considered that the fact relied upon at trial and not mentioned at the scene

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of the crime could reasonably have been expected to have been made at the time. If there is some good reason why it could not have been made, or was not made, or if the person in question is peculiarly vulnerable and therefore it would have been unreasonable to expect him to come up with the fact there and then, that is a matter which the court can take into account.
The new requirement which would be put into the PACE code, referred to by the noble Earl—the requirement for a validation interview—builds on a recommendation of the Royal Commission. Inferences will be susceptible of being drawn from silence at the scene of the crime but only after compliance with a requirement to validate what was said or not said at the first formal interview in the police station. If there is a conflict of evidence, or allegation of malpractice, then this will be identified as a material issue at that very early stage in accordance with one of the Royal Commission's key objectives: that the issues should be highlighted as early as possible. The validation requirement would enhance the reliability of evidence not only as to silence but as to any significant statement made before arrival at the police station upon which the prosecution seek to rely. In my view it will represent a very significant improvement in our criminal procedure and one which it is both proper and desirable to achieve through amendment to the codes of practice under PACE rather than in primary legislation.
Given the undertaking of the Government to amend the caution, and to revise the codes accordingly, I would urge support for Amendment No. 34 standing in the name of the noble Earl.
Lord Wigoder: My Lords, before the noble and learned Lord sits down—I use this process because, as he will know, it being Report stage he will have no further opportunity of addressing us in the course of this debate—perhaps he can help us, his assistance being very much valued, by saying whether he still adheres to the view he expressed on 23rd May in Committee when he said:
"I hope that further thought may be given to the matter before Report stage. At present I would point out that there is an inconsistency between Clause 32 on the one hand and Clauses 34 and 35 on the other. The latter two clauses bite only on arrest, when a caution will have been given. Clause 32 bites at any time, 'on being questioned by a constable'. At the least, I suggest that Clause 32 should be brought in line with the other two clauses". —[Official Report, 23/5/94; col. 523.]
Is the noble and learned Lord of the view still that Clause 32 should bite not simply on caution but on arrest? May there not be a substantial difference in time between the two?
Lord Taylor of Gosforth: My Lords, I was concerned that there should be a caution in all three cases. The caution is not mentioned in Clauses 34 and 35. It does not have to be because it is implicit that if one is considering the point of arrest there will have to be a caution. What I meant was that the absence of any requirement of caution in Clause 32 did not lie well with the implicit requirement of a caution in Clauses 34 and 35. But Amendment No. 34 brings the three into line in that respect.
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Perhaps, as I am on my feet again, I may say that while I welcome the somewhat peripheral matter raised by the noble Lord, Lord Irvine of Lairg, as to whether the review authority will very shortly figure in legislation, I do not consider that it is relevant to this particular amendment. However, as the noble Lord mentioned the matter, I should like to support the very great urgency of having that provision in legislation at an early stage.
Lord Campbell of Alloway: My Lords, may I ask for clarification before the noble and learned Lord sits down? Am I right then in assuming, as I did, that my Amendment No. 33 is in fact subsumed by Amendment No. 34 because of the caution? The noble and learned Lord may remember that he was concerned in Committee that Clause 32 did not bite on arrest and that there was therefore a disparity between Clauses 32, 34 and 35. Am I right in assuming that Clause 34 frankly disposes of any need for my Amendment No. 33, which seeks to give effect to the concerns expressed by the noble and learned Lord the Lord Chief Justice.
Lord Taylor of Gosforth: My Lords, I hoped a moment or two ago, in answer to the noble Lord, Lord Wigoder, that I had made it clear as to the respects in which I wished to see the three clauses brought into line; namely, that none of them should bite unless there was a caution. I hope that that is clear.
So far as the amendments of the noble Lord, Lord Campbell of Alloway, are concerned, I understood he was pursuing them because he was not satisfied as to the nature of the change to be made in the PACE code. I adopt the stance I have on the faith of the undertaking, which I understand to be a firm undertaking on the part of the Government, that the PACE code will be amended to require the validation procedure. That being so, with great respect, I would have thought that the noble Lord, Lord Campbell, might have withdrawn his amendment.
Lord Wigoder: My Lords, I believe that that completes the cross-examination of the noble and learned Lord the Lord Chief Justice.
Lord Hailsham of Saint Marylebone: He can. exercise his right of silence now.
Lord Wigoder: My Lords, I am one of those who was and is still against tampering with what for convenience's sake we have all referred to as the right of silence. But I accept that I am clearly not in a majority in this House. I accept that times have moved on, and that we have discussed today not the general principles but the way in which the right: of silence should now be changed.
Perhaps I may say at once that I entirely support in that position the amendment tabled by the noble and learned Lord, Lord Ackner, and his colleagues. It seems to me that Amendments Nos. 37, 39 and 41 provide a clear, positively identifiable, precise situation under which rules can be made clear both to the prosecution and the defence. It seems to me that they set up a position which eliminates, so far as human beings can, the possibility of confusion or misunderstanding or even

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of deliberate manipulation. I say no more about those amendments because I have no doubt that other noble Lords, particularly those whose names are on the Marshalled List, will want to speak in support of them.
Perhaps I may confine my attention to the proposed Amendment No. 34 to be moved on behalf of the Government by the noble Earl, Lord Ferrers. I find it an unhappy amendment. I believe that the results are potentially disastrous if it is made part of our law. To me it has all the indications of how very ill thought out the whole of the Government's proposals have been in this area ever since this debate began.
It must have been obvious to the noble Earl, Lord Ferrers, at a very early stage that in order to persuade your Lordships of the validity of his position it was essential that he should place before the House a simple, clear scenario, a situation, an example of a defendant remaining silent when common sense screamed out that some comment was called for. I have no doubt at all that the best brains in the Home Office were called together in order to produce the scenario.
It was produced at Committee stage. The scenario produced to persuade your Lordships to interfere with the right of silence—these are the words of the noble Earl—was:
"Two ramraiders attack a jeweller's shop. They are disturbed by the arrival of a police car and escape on foot to a nearby block of flats. The police give chase. They do not see the two men's facial features but they see their height, build and clothing. The police make door-to-door inquiries at the block of flats and enter one flat, where they find the tenants, a middle-aged couple, as well as two young men whose height, build and clothing happen to match those of the men for whom they are looking. The middle-aged couple seem agitated and upset. The police ask the young men what they are doing in the flat and one of them says that they have come along for a cup of tea. The middle-aged couple are too frightened to contradict the young men's story and are not prepared to give evidence against the two young men at a trial. Inquiries later reveal that there is no link between the middle-aged couple and the men. After being arrested and consulting their solicitor, the men claim that they were looking for a friend and had stopped at the flat to ask for directions. They later put that forward at the trial".
That is the scenario. The comment made by the noble Earl was entirely accurate. He said:
"Under the law as it now stands, the inconsistency between what those men said to the police officer before they were arrested and cautioned and what they said at their trial could be the subject of very effective cross-examination and could be the subject of an inference by the jury who might think that the men were not to be believed. Equally, if the two men had said, 'We have just raided the jeweller's shop', that would be a confession and would be admissible evidence at the trial. It could form a basis— possibly the main basis—of a conviction. But if—
this is the relevant part—
"instead of saying they had come for a cup of tea, the two men had said nothing at all to the police officer or if they had asked him to mind his own business—perhaps using more colourful language—under the existing rules the prosecuting counsel could say nothing about that. Questions such as, 'Why didn't you tell the police what you are now telling the court?', would not be allowed.
That is a simple scene which Clause 32 seeks to address". —[Official Report, 23/5/94; col. 532.]
That was the way in which the Government had thought out the position. They are now putting forward an amendment to Clause 32 under which that scene is not addressed in the slightest. The situation under Clause 32 is that there was no caution in the flat originally. There
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could have been no caution properly administered in the flat because the police at that time could have had no reasonable grounds for suspecting that the defendants, the young men, were guilty of an offence. In those circumstances, if the Government's own amendment is carried, on the scenario as they put it forward in their model scene at the last hearing the proposals now being brought forward by the Government would have had absolutely no effect on the proceedings at the trial. I find that an extraordinary state of affairs. And it demonstrates, I believe, the disastrous consequences of the Government's own proposals.
The present temptation is for the police to leave their caution as late as possible in case the effect of the caution is to discourage a suspect from talking. The effect of the Government's proposals is that the police will be tempted to bring forward the caution as early as possible in the hope either of inducing a helpless suspect to say something or of it resulting in a silence which would then be admissible as the possible subject of comment during the trial.
The idea of the police shouting out the caution at the earliest possible moment for that purpose perhaps gives rise to rather ludicrous results. I have in mind the cartoon in Punch many years ago which showed a bank robber standing on the roof of a bank with the booty in one hand and a machine gun in the other, spraying with bullets the assembled ranks of the police in front of the bank; one brave police officer is shouting out through a loud nailer, "Jones, we'd like you to come to the police station to help us with our inquiries". A similar nonsense is liable to happen if the police are to shout out a caution at the earliest possible moment when they are taking a suspect in order to trigger off the procedures about the comments on silence.
There are further results that will cause trouble. In the circumstances the police may be tempted to say that there was a caution when there was not a caution. There will be controversy at the trial over that. There will be arguments by ingenious counsel that, even if there were a caution, which the defendant will no doubt deny, it was improperly given because it was not appropriate at that stage in the proceedings as the police could not reasonably have suspected that the defendant was guilty of an offence.
There is the situation referred to several times this afternoon already when the question is asked: was the defendant in fact silent? There will be cases in which the police officer will say, "Oh, yes, he was silent", and the defendant says, "No, on the contrary, I said 'Rubbish', but I did not say it very loudly and it may well be that the police officer never heard it". What an absurd situation that is. If the defendant said "Rubbish", then the silence provisions are not triggered off; but if the police officer did not hear him, they are triggered.
There is also the situation in which the police will be tempted, instead of having to make up some confession, simply to say, "The defendant said nothing". That is a perfectly simple deception for the police to carry out. It is not capable of the scientific examination of notebooks and so forth that is now so prominent. The result of that situation is that, unhappily, there will be a resumption of the "battle of the verbals" that has marred our criminal

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trials certainly for half a century to my knowledge and no doubt for many years earlier, such as "He said this" —"No, I didn't"; "He said that"—"No, I didn't"; the officer: "You are lying"—"No, I am not"; the defendant: "You are lying"—"No, I'm not". On and on and round and round we go, to the excessive tedium of all and with no encouragement to the administration of justice.
All those consequences will be the result of the Government's amendment. I believe that they can be avoided by a clear, lucid statement of the controlled conditions in which the interview is admissible and the silence, if it happens, is admissible and easily confirmed.
For those reasons I very much prefer the amendment of the noble and learned Lord, Lord Ackner, to the amendment of the noble Earl, Lord Ferrers. I add only that I am sad that the Lord Chief Justice, the noble and learned Lord, Lord Taylor, appears at this stage to some extent to resile from what he said at Committee stage. As I read his comments, he quite clearly said at Committee stage that Clauses 34 and 35:
"bite only on arrest, when a caution will have been given … At the least, I suggest that Clause 32 should be brought in line with the other two clauses".—[Official Report, 23/5/94; col 523.]
I respectfully suggest that on reflection the noble and learned Lord will agree that the words "at the least" and "on arrest" indicate that he had in mind at that time something a little more advanced than the Government now propose. There can be an enormous gap in time between the first caution, given when there are grounds for suspicion, and an arrest, which cannot take place simply on the grounds of suspicion. In those circumstances I ask noble Lords to support in the Lobbies in due course the amendment of the noble and learned Lord, Lord Ackner.
Lord Hailsham of Saint Marylebone: My Lords, up to this point I have listened with a great deal of interest to every word that has fallen from the numerous and highly qualified speakers. But all along I have been puzzled about what the ordinary Member of this House is making of the debate and how much of it has sunk in. I myself cannot pretend to be completely innocent of legal qualification at all. However, I was interested in the subject long before I had any legal qualification. I was interested from the time when my father was Attorney-General and my brother wrote a book about the life of Sir Edward Marshall-Hall.
There are conclusions which I venture to put before my noble friends and Members of your Lordships' House which I have formed in the course of a rather long lifetime. There are certain basics that we want to preserve at almost any cost. First, we want to do nothing which, at the end of the day, would undermine the burden of proof that lies on the prosecution to prove its case and the standard of proof, which is to prove the case as we used to say "beyond reasonable doubt". That is the formula that I prefer to any other. Secondly, there is a fundamental difference between the admissibility of evidence and the weight to be attached to evidence after it has been admitted by the tribunal of fact.
So far as concerns the admissibility of evidence, I should like to see as few as possible—I repeat, as few as
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possible—technicalities, or ritual dances as I sometimes think of them, taking place. My noble and learned friend Lord Ackner referred to certain words said in an earlier debate in this House which he attributed correctly to Lord Reid; namely, that it is vital that we should be fair to the accused at all stages—but not, I submit, to believe that one is necessarily being fair to an accused by introducing formulae and putting them in an Act of Parliament.
Let me say in parenthesis that when the Bill was sent to this House it contained 122 clauses and was 179 pages long. That is not a short Bill. After Committee stage we have ended up with a Bill which contains 159 clauses and is 192 pages long. We are being swamped in a sea of words. I rather wish that there were fewer of them. We call ourselves a revising Chamber, but we are rather apt to feel that by adding words to a Bill we improve the clarity with which the Act of Parliament will come to be interpreted by the courts. I do not believe that to be true.
Having heard the speeches which have been delivered—no doubt I shall listen to all the speeches that will be delivered hereafter—I must say that I was completely convinced by the words of the noble and learned Lord the Lord Chief Justice. So far as admissibility is concerned, it is vital to stop anything being advanced which has not been fairly obtained. That is done by preventing confessions or records of any kind which have been subject to oppressive treatment by those in a position of authority, including the police. I do not believe that any particular formulae or ritual dances which have to be performed will assist the matter very much. What has to be ensured is that in the infinitely varied circumstances of every case fairness is preserved. If a case is being tried in the Crown Court before a jury, the trial judge ought to protect the accused from unfair treatment, but it is not possible to reduce "unfair treatment" to formulae very easily.
I prefer the argument of the noble and learned Lord the Lord Chief Justice to some of the others that have been put forward. I believe that he gets it right when he says that there must be some kind of code of practice in the context of PACE rather than that it should be set in tablets of stone and handed down from Sinai in the form of a statute. That was a proposition that he put very clearly, with which I wholly agree.
When one has admitted facts or silences, or evidence of any kind, whether it is evidence of speak or non-speak or do or non-do, let us remember that it is first for the tribunal of fact to come to a conclusion on the basis of the evidence whether guilt has been proved beyond reasonable doubt against the person under suspicion or charge. In respect of that question one has to admit that the facts of individual cases are almost infinitely different one from another.
I believe that as legislators we in this House must not try to interfere with the very wide degree of discretion that the trial judge has. He is the person who admits the evidence or not and has to sum up to the jury the kinds of considerations that are relevant to the particular case. I would rather that the trial judge was pretty well free, as he has always been in the true tradition of our common law, but always subject to the paternal

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jurisdiction of the Court of Appeal to lay down general rules of guidance for him and to decide in particular cases whether, in the light of the trial judge's behaviour, the conviction, if there be one, is unsafe or unsatisfactory.
I believe that the weakness of the amendments of my noble friend Lord Campbell of Alloway, and those in the names of the noble and learned Lord, Lord Ackner, and his associates, is that, instead of adopting this rule that I regard to be a matter of common sense and logic, there is an attempt to introduce formulae and rigid safeguards of a kind which I believe invariably lead to injustice. It is for those reasons that I support my noble friend Lord Ferrers, but with greater emphasis than I would otherwise have because it happens to be the view of the noble and learned Lord the Lord Chief Justice, for whom I have at least in this context as much respect as the Home Office Minister, who does his work so well and, I hope, has the affection and admiration of all of us for the way he does it.
5 p.m.
Baroness Mallalieu: My Lords, under the existing law, in particular the provisions of the Police and Criminal Evidence Act 1984, anyone who is stopped, searched, arrested and taken to a police station to be questioned is protected in a number of important respects from questioning which would otherwise be unfair or oppressive. When he is arrested, the suspect is told that he need say nothing. At the police station he is entitled to legal advice before he is questioned. Before he is questioned a range of provisions comes into force which has been designed to protect in particular the vulnerable suspect from unfairness.
The 1984 Act and the codes of practice which went with it introduced special provisions for those who were mentally disordered, mentally handicapped or mentally incapable of understanding the significance of questions put to them or of making a proper reply. It introduced special provisions for young people and physically handicapped people who were unable to speak, read or hear and those with speech impediments. It introduced special provisions for those with language difficulties who might need an interpreter. It also even contained provisions for those who were unwell or even drunk.
With the greatest respect to the noble and learned Lord the Lord Chief Justice, I cannot accept that this Bill, together with the proposed changes in the codes, contains satisfactory provisions for those people before they reach the police station and can seek legal advice. Under the Bill they are to be told upon arrest—in the words of whatever caution the Home Secretary finally decides upon—that, if they do not mention certain matters at that stage, the court may treat their failure to speak as evidence against them.
Quite apart from the special categories of people to whom I have referred, many people when arrested do not understand their position in law, and they are scarcely likely to be assisted by the proposed changes to the caution. Perhaps the majority are inarticulate. Almost all of them will be frightened. It is often forgotten that, particularly in the case of a violent or
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serious crime, these people will be in a state of shock. It is simply not sufficient to say that the court can take that into consideration.
The provisions of this Bill as they stand create an interval between arrest and legal advice at the police station when those vulnerable suspects are to be stripped of the protection of the law which they presently and rightly have. Of the amendments that the House is now considering, it is only those that stand in the name of the noble and learned Lord, Lord Ackner, which restore the protection for that period. With great respect, I commend them to the House.
Lord Alexander of Weedon: My Lords, I also support the amendment of the noble and learned Lord, Lord Ackner. I am one of his associates, as described by my noble and learned friend Lord Hailsham. I believe that the safeguards of the noble and learned Lord, Lord Ackner, are a minimum to secure fairness to the accused. With great respect, I do not believe that this has anything to do with setting up ritual dances. It is about something that is much more simple: good policing. I believe that the one question of substance that we have to ask ourselves this afternoon is: should the exercise by a suspect of the right of silence before the formal interview at a police station be held against that suspect? I believe that it should not.
At this stage of the debate I wish to make four points. Everyone accepts that the change that is being made in Clause 32 is important or, as the noble and learned Lord the Lord Chief Justice said, significant. Everyone also accepts that it is as yet wholly untested. Many were anxious, and remain anxious, that it could increase the risk of miscarriages of justice. They include: the Bar, the Law Society, the Criminal Courts Solicitors Association, Justice, with its deep involvement in the criminal law and human rights, and senior prosecuting counsel—I underline "prosecuting"—at the Old Bailey. I add a Royal Commission in 1981 and the large majority of a Royal Commission in 1993, including its chairman, the noble Viscount, Lord Runciman, who is also an associate in proposing this amendment.
I accept that, by contrast, the change was urged by powerful voices: the Home Secretary, the noble and learned Lord the Lord Chief Justice and the police service. They obviously believe that fears about increasing pressure on vulnerable defendants are groundless. I hope that they are proved right, but none of us can yet know. I believe that in this climate it is sensible to have elementary safeguards in place to make sure that police practices are sound and that evidence is properly obtained.
My second point relates to the whole purpose of the change in the law. Those who wish to allow comment on the exercise of silence at early stages of the investigation do so because they wish to limit the opportunity of an accused to spring a surprise defence or have time to think up and fabricate an untrue defence. Surely this is effectively achieved by making this change bite once, after what would still normally be a relatively short interval after arrest, the accused is in the

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police station. This will be at a very early stage of the inquiry and would, I should have thought, have satisfied even the most eager investigator.
My third point is that this proposal is no more and no less than good police practice. In recent years it has increasingly been accepted that a suspect should not be questioned in the police station without first being given the right of access to a lawyer. Why? This is in the interests of giving the suspect a fair opportunity to respond and, together with tape recordings, helps to ensure the accuracy of evidence. It is good police practice and it protects good policemen against false allegations of malpractice.
I believe that it is in principle reasonable that citizens should have an unfettered right to decline interrogation until after safeguards are in place. I do not, however, believe that the caution proposed by my noble friend the Minister offers those suspects any protection. It certainly means, as the noble and learned Lord the Lord Chief Justice has said, that the right of silence will only be potentially affected once the person becomes a suspect, so it cuts down the category of those against whom inferences can be drawn. But it does not offer any protection to those who have become suspects.
Moreover, the caution is, in my view, simply downright confusing. It will tell someone that he has a right of silence, or that he need not answer any questions, but that he may suffer if he declines to answer questions. I do not believe that any change in wording which preserves that basically self-contradictory proposition can be satisfactory. Add to that the fact that, as research for the Royal Commission showed, the average IQ of suspects is 82—within the bottom 15 per cent. of the general population. Ten per cent. of those were mentally ill, mentally handicapped or brain damaged. Another 5 per cent. had language problems or were illiterate. It is surely right that, in weighing whether to speak or maintain silence in the face of a somewhat puzzling caution, they should have access to legal advice and that the interview should be recorded. Is it not wrong to encourage, as the government proposal does, interrogation in the street or in the police car before the suspect has been offered legal advice?
My fourth point is that the police, as I understand it, do not share the Home Secretary's desire that adverse inferences could be drawn from silence exercised before the safeguards of tape recording and the offer of legal advice are in place. This morning I had the privilege of speaking in Bournemouth to the conference of the Association of Chief Police Officers. One of my co-speakers was Mr. John Hoddinott, the Chief Constable of Hampshire. He, speaking for ACPO, said that he welcomed the change to allow the inferences to be drawn from the exercise of the right of silence. That is the change which some of us were against but which your Lordships have accepted and which we loyally accept. But Mr. Hoddinott went on to say—and I quote from the copy of his speech which he gave me:
"But we are careful to put these changes into the context of: a proper interview with properly put questions. That is recorded (and we would be anxious to see video recording brought in as soon as possible) And the suspect having access to proper legal advice".
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He went on to commend expressly the approach previously taken in debate in this House by the noble and learned Lord, Lord Ackner, including his statement in Committee:
"But if we are going to make these major changes, proper safeguards are required".—[Official Report, 23/5/94; col. 499]
Mr. Hoddinott subsequently expressly confirmed to me that the police did not seek a position in which adverse inferences should be drawn from the maintenance of silence before such safeguards were in place. He has an obvious concern that, once the formal interview has begun, the police should not be required to lay all their cards on the table before asking any questions at all, but I do not understand that to be the. effect of our amendment.
The police are committed to establishing evidence objectively and in accordance with good practice. They, as Mr. Hoddinott explained it to me, would obviously wish the position to be that if, once the formal interview has begun at the police station, the accused maintains silence in the face of the same questions which he had earlier been asked before they got to the police station, inferences could be drawn from that maintenance of silence but not from any earlier maintenance of silence. I believe that to be a reasonable and responsible position. I find it puzzling that the Home Secretary does not seek to pursue that which is regarded as good policing. I have read carefully the evidence and I understand what Mr. Hoddinott said to have been the position maintained by the police before the Royal Commission, which may explain the recommendation of the minority to which I now come.
I said I had four points, but being a barrister by trade and currently a banker, your Lordships will appreciate that I have difficulty in counting. I actually have five points. My final point is to refer to the approach of the Royal Commission and its chairman the noble Viscount, Lord Runciman. The majority of the Royal Commission, as your Lordships know, recommended that there should be no change to the present right of silence. Only the minority supported change, and as the noble and learned Lord, Lord Ackner, quoted from Chapter 4, paragraph 10, the minority made pellucidly plain that it was only questions asked in a formal interview where silence was maintained which would lead to that silence being held against a suspect. So the minority who supported the Government's basic approach would have no truck at all with the present position taken on these amendments.
I know, and your Lordships know because you have heard him, how strongly the noble Viscount, Lord Runciman, feels on this issue. He unavoidably cannot be here today but he has written to me asking me to,
"not only express on my behalf my support for the amendment but also make the point that the minority of two on the Royal Commission who wished to see the modification of the right of silence were emphatic that only questions asked in a room with audio or video recording and, unless the suspect has specifically refused the opportunity of legal advice, a legal representative present should qualify for possible comment at: trial".
So that was the view of the Government's strongest supporters, and they are not with the Government on this issue.
In summary, I believe that this part of the Government's approach shows insufficient respect for

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individual liberty. It is not a matter of detail, but of good policing. The Government's approach cuts against sensible police disciplines and practices to which the modern senior police force are so impressively committed. On this issue the Government have already set aside, within an unprecedentedly short space of time, the recommendations of the majority of the Royal Commission. They now seek to ignore the basis on which the minority supported their basic change in the law. That is going too far. I very much urge your Lordships to support the amendment of the noble and learned Lord, Lord Ackner.
Lord Rawlinson of Ewell: My Lords, it is with great regret that I totally and utterly disagree with my noble friend who has just spoken. I declared at the time of Second Reading that I had 40 years' practice at the Bar, once being in charge of all the prosecutions in England and Wales, and earlier as a younger barrister, I defended in many criminal cases. I always believed that the inability to comment on an accused's failure to explain or account for a fact when challenged was absurd. When my noble and learned friend Lord Hailsham spoke of a ritual dance, that is what it was. It was a rule in the game and part of the deft footwork. It was part of that abolition of common sense which the ordinary common-sense person who is not a lawyer believes is utterly absurd. Why cannot you say, "Why did you not say that right at the beginning? Why did you not say that when you were asked about it?" That is what the ordinary, common-sense person says. That is exactly what we were prevented from saying. I commended the Government for their courage in ending what was an absurd rule. It was part of the rule of the game.
It is not a great constitutional issue; it was part of the technique of the game played in British criminal trials. That has been corrected. The Government have shown great courage to do so. Having listened to my noble friend the Minister and to the noble and learned Lord Chief Justice I am quite satisfied that sufficient safeguards have been produced in the amendment proposed by the noble Earl. I strongly reject the proposition of my noble and learned friend Lord Ackner and all that was said, alas, with such eloquence by my noble friend Lord Alexander of Weedon.
Lord Lowry: My Lords, not for the first time I have listened to the inspiring words of my noble and learned friend Lord Hailsham, which I have heard both in public and in private. What he said—and indeed what my noble and learned friend Lord Rawlinson has just said —reminds us of the basic truth that what is relevant is prima facie admissible in a trial save where it is regarded as either generally unfair, like most hearsay evidence, or unfair in particular circumstances, such as evidence which the judge believes is more prejudicial than probative. Broadly speaking, that is the way in which the courts have made rules of their own.
Now we have rather complicated particulars of Clauses 32 to 35. Someone might say "Why do we bother in having such a complicated approach to an essentially fairly simple problem?" I believe that there is one reason. The courts have not acquitted themselves
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very brilliantly in their attitude towards the judge's comments on the failure of the accused to give evidence. I thought that it used to be fairly simple provided the judge behaved himself and did not go overboard. But it seems now that if the judge says anything at all he is almost bound to discourage the jury from drawing some very obvious inferences. Therefore, Clause 33 is an attempt to produce some kind of order. If one is doing that it is very difficult to disregard the fact that, partly due to the cautions which have to be given—and if they mean anything at all they must mean that the accused will not be prejudiced if he says nothing—the Government have, quite bravely, brought a Bill to Parliament to try to adduce some kind of order out of the chaos which I believe started at the trial.
It is sobering to reflect that here we are at Report stage and yet matters of principle are still the main focus. For my part I broadly support Clause 33, but I regard Clauses 32, 34 and 35 with only moderate enthusiasm. For reasons which I shall explain, I consider that if those three clauses are to be enacted that should only happen if we incorporate in the symphony what I might call the variation played by the Ackner quartet. I hope I do no disrespect to the other players. On the other hand, one has to remember that we are talking about a right to comment; we are not talking about the admissibility of evidence of what happened. The two are not synonymous.
I have referred to matters of principle. The innovations proposed, although they do not abolish the right of silence or introduce compulsory self-incrimination or—subject to one point which I shall mention—alter the burden or standard of proof, would introduce a procedural change which has been the subject of active controversy and many reports for over 20 years. A change like that has to be fair and must be seen to be fair. It must be acceptable if the reputation of our criminal law is not to suffer. It must be reasonably effective (I stress the adverb) and it must be workable.
Your Lordships are aware that there are very well-informed and well-intentioned people, both in this House and beyond, who are strongly and genuinely opposed to the whole idea behind Clauses 32 to 35. Their views cannot be set at nought except at great risk to the cause of justice. The reassurance that I venture to offer them is that the trial process will remain in charge of a judge whose aim and business it is to ensure a fair trial whatever rules of procedure are in use. I cannot over-emphasise the importance of really good first-instance judging and of continuous training through seminars for that job which is more demanding, though less well remunerated, than most appellate work. Beyond the judge is the Court of Appeal whose duty it is not to uphold a conviction on indictment unless it is safe and satisfactory. The competence and fairness of the judge and the supervision, where necessary, of the Court of Appeal are all-important whatever the regime.
Unfairness can arise even under a fair system. What Parliament must do is avoid legislating for a system which is itself unfair or which leads easily to unfairness. I submit that Clauses 32, 34 and 35, while not in themselves unfair, will lead easily to unfairness unless amended as proposed. Without the recording and

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without the presence of a legal representative, the evidence of silence, on which the prosecution means to rely, may become the equivalent of being "verballed" —if I can use the colloquialism which has already issued today from very learned lips.
At present, even allowing for persons who are vulnerable, I believe that very few innocent people are convicted by the time the judge and jury have done their duty. We must be as sure as we can be that that very small number is not increased. That is why I am worried about Clauses 32, 34 and 35 as they stand. It is different with Clause 33. We are now at trial. The Crown case unfolds. The accused is usually advised. A rational decision can be made. A judge is in charge and, finally, what is proposed in that provision is not new. Only a year after the passing of the 1898 Act, a court in which the first Lord Russell of Killowen presided held that the judge could comment on the accused's failure to use his newly conferred right to testify. Much later we appeared to lose our way and the right of judicial comment became blurred.
Now things can improve. The prosecutor, as he would always have been able to do but for proviso (b), will now be able to comment on the silence of the accused. Defending counsel will speak after the prosecutor, as he did not formerly unless he called no evidence and not even then in the old days in Ireland because all Crown counsel assumed the mantle of the Attorney-General. Thus we have at last followed Scotland in what I was brought up to believe is only one of the many respects in which Scots criminal procedure is superior to ours. Finally, the judge can hold the balance instead of appearing to be the Crown's agent as heretofore. I have no major worries about Clause 33.
My last general point is this: is the right of comment under Clause 33 worth introducing or, more accurately, worth clarifying? The answer must be yes, if only for certainty and uniformity. But I go further. This House, in its appellate capacity, has shown in the Northern Ireland case of Murray that the corresponding Article 4 can be properly used to turn a provable case into a proved case. Some Northern Ireland statistics could lead to the conclusion that Article 4 is, and Clause 33 will be, of no real value. On that I make two points. First, the pool of figures is too small to support reliable conclusions. The other point is that non-jury trial, where the judge is not giving perhaps misleading directions to the jury, must be distinguished from the jury trial at which Clause 33 is primarily aimed. So careful are most trial judges at present that when they speak juries are discouraged from drawing any inferences against an accused even where it would be logical and proper to do so.
Perhaps I may seek your Lordships' further indulgence to mention briefly a couple of points arising on the text of the amendments. On Clause 32, while I agree with my noble and learned friend Lord Ackner and his allies I do not quite approve of the requirement that a record, other than a recording, has to be authenticated by the suspect's lawyer. That is a clear advantage. However, it seems to me that there will be times when the lawyer, without acting improperly, may refuse to authenticate. I suggest that if he will not do
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that, it should be enough to give him a copy of the record and still give evidence about the accused's silence.
In Clauses 32,34 and 35, I note the use of the silence procedure to create a prima facie case. I know that that can be logical and even compelling, but I feel that that idea erodes the standard of proof hitherto demanded for a prima facie case. I would harness that in this way: that is all the more argument for having great precautions about the use of pre-trial silence when one considers the important use that can be made of it under those clauses.
It can be said that the amendment may lead to complications and even to great expenditure. On the other hand, I would rather dispense with Clauses 32, 34 and 35 altogether than do without the amendments. There is another point which I gleaned from what was said by the noble Lords, Lord Wigoder and Lord Alexander. Such an amendment is designed to help not only the suspect. A very important reason for supporting my noble and learned friend, based not only on my experience but—I hope that I shall not sound didactic in saying so—on the experience of every judge who has tried criminal cases or sat on appeal—is that if something is logically probative and it happens, it is important to be able to prove that it happened and that it happened in circumstances which cannot be called into question. The caution given before a confession statement is an elementary example. A striking example is what happens in Jamaica where a confession is taken in front of a magistrate who countersigns the statement. That must put an end to a great many controversies as to whether the statement was made and whether It was made in acceptable circumstances.
Recordings and the presence of legal advisers are other matters which help to copperfasten some piece of evidence which has been elicited. There is a great deal to be said for the proposition that one should sacrifice the immediate advantage which can be obtained in the absence of those precautions in return for a greater gain —that when something is obtained, it will then stick, if I can put it that way. That is fair to all sides, including the police who have taken the statement, and it is in the general interests of justice.
Finally, I refer briefly to something which could be relevant to Clause 33.I spoke on an earlier occasion of the debates on the Criminal Evidence Bill in 1898 when strong opposition was voiced, particularly by many who had much experience at the Criminal Bar, on the ground that to permit the accused to give evidence was forcing him to testify and thereby destroying his right of silence. But is it not clear that the 1898 reform was perfectly fair to the accused and positively beneficial to the innocent? It is not a true parallel because Clause 33 is not intended to benefit the accused. It is, however, well fitted to differentiate between the guilty and the innocent.
As the noble Lord, Lord Campbell, said, it is true that fair means must be used to convict the guilty. It is quite unacceptable to convict a guilty man by an unacceptable procedure. But it is also true that we should remember the interests of innocent people. The fact that all this reform —if that is the word—will be inclined to get

1415
people speaking earlier must benefit innocent people who otherwise would be advised, and might feel it wise, not to say anything until a much later stage.
Lord Annan: My Lords, I rise only because at the beginning of his speech the noble and learned Lord, Lord Hailsham, asked himself what impression the whole debate would have on someone who was a layman and not learned in the law. No one could be more of a layman in the law than I am. I know very, very little about criminal law, and absolutely nothing about the practice of criminal law in the courts. But I ask myself this: why was this Royal Commission set up? It was set up because of certain grave misjudgments and miscarriages of justice in our courts which brought our legal system into some disrepute.
The Royal Commission adjudicated on that matter, and gave its opinion. Royal Commissions are not always right, and so I ask myself: what do those who practise at the Bar and see criminals and people who are not criminals appear before them feel about this? I listened most particularly to what the noble Baroness, Lady Mallalieu, said. I was impressed. That is why I shall support the amendment tabled by the noble and learned Lord, Lord Ackner.
Lord Spens: My Lords, after two hours talking about the front end of Clause 32, I shall now focus briefly on the business end of Clause 32; that is, the proper inferences to be drawn. Before I do so, perhaps I may ask the Minister why it is that in the Criminal Evidence (Serious Fraud) (Northern Ireland) Order 1988 the matching clause is followed by a subsequent rider which reads:
"on the basis of such inferences treat the failure as, or as capable of amounting to, conoboration of any evidence given against the accused in relation to which the failure is material".
Why has that rider been left out of the Bill?
I come to the word "proper".' It is a qualifying adjective. The bugbear of my life for the past seven years has been qualifying adjectives. Qualifying adjectives probably add up to 10 per cent. of all legal costs. They are difficult to define. When I tried to define what was meant by "proper" I asked several people. I even consulted the dictionary. I could not find a universal answer. In fact, if one looks at the Concise Oxford Dictionary one finds that there are 11 different definitions of the word "proper", starting with, "proper motion of stars", and going right through to, "She's a proper Victorian", which I think represents the demands of society, and perhaps that is where the word in this clause lies.
I have a letter from the head of the Criminal Justice Bill Unit, Mr. Paul Lynch, who, I believe, defines what the Government mean by the word "proper". It goes like this:
"What is proposed is simply that courts should be allowed to draw common sense inferences from a suspect's decision to remain silent when questioned about certain facts".
Whose common sense are we talking about? Is it judicial common sense? It has never been great. Is it public common sense, prosecution common sense or Government common sense? Is it just common sense? Is that what the word "proper" means? If it is what the
1416
word "proper" means, then will the Minister define what he thinks the word "proper" should mean in Hansard to avoid considerable expenditure in tripping along to the Court of Appeal (Criminal Division) to work it out?
My second point is about inferences. There are two types of inference in a criminal trial. There is a positive inference, and an objective inference which comes, as it were, from positive evidence, from which is deduced a logical conclusion. I suppose that the clearest example of that is a fingerprint at the scene of a crime from which it can clearly and logically be deduced that whoever the fingerprint belonged to was present at the scene of the crime at some stage, although not necessarily at the time of the crime. Further evidence would be needed for that.
For many years that has been how our courts have largely operated. But we have now moved into the area of negative inference and subjective inference. That is very much more difficult and dangerous. I have seen it used against me. I can remember occasions when the lack of any written evidence led counsel to say that that lack of evidence was evidence of fraud. He used it by a sound bite: secrecy is the badge of fraud. That sound bite was carried in every national newspaper the following day. It was of course nonsense. It was a nonsense inference. Secrecy has nothing whatever to do with fraud. It did however convict four people. It was probably the only reason they were convicted.
We are using the same argument with the phrase, "may draw proper inferences". The badge will not be secrecy. It will be, "Silence is the badge of guilt". That is what people will be branded with. Presumably that is what the Government wish to impose by passing the Bill. If we are going to go down the route of negative inferences, the judge should direct the jury as to the extreme danger of following negative inferences. It almost certainly follows from a false syllogism at some stage in the argument. I hope that the Minister will consider my amendment along those lines.
5.45 p.m.
Earl Ferrers: My Lords, if I may have the leave of the House, I should like to draw just one or two matters to your Lordships' attention. Perhaps I may deal first with the amendments tabled by the noble Lord, Lord Spens. Of course their main effect would be to provide a statutory duty for judges to direct juries as to why they should draw an inference. Our view is that judges welcome occasional guidance from Parliament as to the performance of their duties, but I feel that the amendments would go a trifle too far. They might also trespass upon the jury's responsibility to determine the facts of the case. Nothing in the Bill is intended to alter the obligation upon a judge to deliver a summing up to a jury, but I believe that the judges are best able to decide how to discharge that role. A judge might, for example, direct a jury whether, in law, the circumstances were such that inferences could be drawn under the terms of the legislation that we propose. A judge would have a duty to rule against any prosecution comment in circumstances where the law does not allow inferences to be drawn.

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The noble Lord asked why the Bill does not contain the provision of corroboration contained in the Criminal Evidence (Serious Fraud) (Northern Ireland) Order 1988. It was left out of the Bill because the rules on corroboration in England and Wales are being modified by Clauses 30 and 31.
I shall resist the temptation to define the word "proper". It is a word which appears often in legislation. As the noble Lord knows only too well, it is a matter for the courts, not a Minister, to define.
What we are really talking about here are the proposals relating to the right of silence. We do not propose to take away that right in the sense of forcing people to answer questions, but rather to allow a court or a jury to use its common sense in drawing inferences if a person chooses not to answer. That is the simple proposition.
I agreed with my noble and learned friend Lord Hailsham when he said that we were deluged with words and that there is no point trying to put things right just by cascading ourselves with more words. I hope that he will understand that the Government are not cascading your Lordships with words; we have added only two. We have added only two words to make a significant difference. I was pleased that the amendment tabled in my name has the approval of my noble and learned friend, even though he said the main reason for his approval was that he preferred the argument of the noble and learned Lord the Lord Chief Justice to mine. I do not at all blame my noble and learned friend Lord Hailsham for that. I should be happy to come second, third or 105th to the ability of the noble and learned Lord the Lord Chief Justice to put a complicated legal argument clearly. All we are doing is to say that a person who is asked a question and who refuses to answer should be cautioned before that evidence can be used. That is not bad or erroneous. The noble Lord, Lord Irvine, said that we should be preventing miscarriages of justice. Perhaps I may remind him that it is just as much a miscarriage of justice when guilty people go free and untried as when innocent people are convicted.
The noble Lord, Lord Irvine, also asked what the Government were going to do about the Criminal Cases Review Authority. The noble and learned Lord the Lord Chief Justice answered that question very well by saying that it was totally irrelevant. The noble Lord also asked me whether there would be legislation in the next Session. He should know only too well that I would not anticipate what might be in the Queen's Speech.
The noble and learned Lord the Lord Chief Justice said with immense conviction that Amendment No. 37 in the name of the noble and learned Lord, Lord Ackner, would remove the right or the ability to take into account a person's silence until that person had reached the police station. The noble and learned Lord said that that could not be right. If confessions can be accepted, why should not silence be accepted? The noble and learned Lord the Lord Chief Justice said that our amendment would result in a significant improvement in the procedure. Those were impressive and weighty words and your Lordships should take note of them.
I turn for half a moment to what was said by the noble Lord, Lord Wigoder. He said that my amendment was
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unhappy. I cannot think why on earth he should have thought that, because it is not so. The noble Lord said that it was an ill-thought-out procedure. The procedure was thought out specifically after your Lordships had debated the matter in Committee. We considered what your Lordships had said and came forward with this amendment. Therefore, I do not believe that it is ill thought out.
The noble Lord spent a great deal of his speech quoting from my speech in Committee. I was deeply flattered that he should have considered it worth repeating. He castigated me for producing a scenario in Committee and said that he knew that all the best brains in the Home Office would find some happy scenario to produce. I did produce a scenario and I have produced another today, for the simple reason that often a mere layman such as myself finds a simple scenario easier to understand than the more complicated language which some lawyers use. I thought that even those of your Lordships who were well versed in the law would be able to understand the niceties of the issue if a simple little scenario was produced.
We can discuss this matter for ever, but we must reach a conclusion. We are discussing whether it should be possible for the court to draw such inference as it thinks fit when a person decides to remain silent at the scene and after a caution or whether it should be taken into account only after the suspect has gone to the police station and had the advice of a lawyer, if he wants that. In my view, the amendment tabled by the noble and learned Lord, Lord Ackner, which subscribes to that latter point, is too restricting. I agree with my noble and learned friend Lord Rawlinson that it is absurd not to take into account the fact that an accused has decided to remain silent. In order to take that matter into account there should be proper safeguards. I suggest that those safeguards are apparent in Amendment No. 34.
Lord Campbell of Alloway: My Lords, to my mind the undertakings given by my noble friend Lord Ferrers are wholly sufficient and satisfactory. The broad effect of the safeguards sought by Amendment No. 32 will be provided by codes of practice which will be amended after statutory consultation and will be subject to the affirmative resolution of both Houses of Parliament.
I am grateful to the noble and learned Lord the Lord Chief Justice and to my noble friend Lord Ferrers for their support of the spirit of my amendment. I accept unreservedly that flexibility under codes as proposed, albeit somewhat late, is far preferable to the rigidity of a statute as proposed in Amendment No. 32, which I beg leave to withdraw.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 34:
Page 21, line 12, after ("questioned") insert ("under caution").
On Question, amendment agreed to.
[Amendments Nos. 35 and 36 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 37:
Page 21, line 39, at end insert:
("( ) Subsections (1) and (2) above do not apply unless—

(a) prior to the questioning or charge or notification of possible prosecution the person is informed of the

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purpose and nature of the questions he is to be asked and the possible effect of the failure to mention any such facts as are referred to in subsection (1) above;

(b) his lawyer is present and he has had an opportunity of consulting him prior to the interrogation unless he has stated in writing that he does not require the services of a lawyer; and

(c) a tape recording in accordance with the current code of practice or a contemporaneous record authenticated by his lawyer is made of the interrogation.").

The noble and learned Lord said: My Lords, I wish to move this amendment. Although the matter has been fully debated, this is my only opportunity to make some short comments in answer to what was said following my address to the House on Amendment No. 32.I have few points to make and I can do so in a couple of minutes.
The first point relates to the happy phrase of my noble and learned friend Lord Hailsham—and so many happy phrases come from him—the "ritual dance". That is not how the issue of silence and safeguards was viewed by him, Lord Salmon, Lord Dilhorne, Lord Diplock, Lord Reid and Lord Widgery in the debate some 23 years ago. They stated in trenchant terms that they would have none of the suggestion made by the Criminal Law Revision Committee—which is the same as we have today—without proper safeguards. As none were produced that was the end of those proposals. "Ritual dance" is a happy phrase which is totally irrelevant to this debate.
My second point relates to the police acceptance of our amendment, as indicated by the noble Lord, Lord Alexander. I make only one additional point. When the matter was debated in Committee on 23rd May, the noble Lord, Lord Windlesham, pointed out that the safeguards we proposed have a double effect. They not only ensure fairness to suspects who are weak, vulnerable and confused, but they provide protection to the police, and that is why I understand they support it. They avoid later challenges, which are lengthy, time-consuming and costly, to the veracity of police accounts of what was said or not said on the doorstep, in the police car or at the scene of the alleged crime. The noble Lord's speech is at col. 499 of Hansard.
My third and final point is in answer to the rhetorical question of my noble and learned friend the Lord Chief Justice. He asked, "Why are we so chary of drawing inferences from silence?". I offer him the observation which was made by Lord Reid in a debate some 20 years ago. He said:
"The reason why the right to silence has grown up is that in the past times it was impossible to be in the least sure that interrogation would be fairly done".
We will skip the next few lines. Lord Reid continued: "The purpose of the safeguards is not to give the guilty man a sporting chance; it is to see that the innocent man is as fully safeguarded as human ingenuity can achieve".—[Official Report, 14/2/73; col. 1613.]
The fact that the majority of the members of two Royal Commissions rejected outright what is now proposed, the fact that the Home Secretary's working party not a few years ago did likewise and the fact that what is proposed does not add the protection which would have been accepted even by the minority of those two Royal Commissions make it quite clear that this
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provision fails quite hopelessly to safeguard fully an innocent accused as far as human ingenuity can achieve —the Lord Reid test. Therefore, I commend the amendment. I beg to move.
6 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 143.

Division No.1

CONTENTS

Ackner, L. [Teller.]

Kirkwood, L.

Addington, L.

Lester of Herne Hill, L.

Alexander of Weedon, L.

Listowel, E.

Annan, L.

Llewelyn-Davies of Hastoe, B.

Archer of Sandwell, L.

Longford, E.

Ashley of Stoke, L.

Lovell-Davis, L.

Attlee, E.

Lowry, L.

Beaumont of Whitley, L.

Mallalieu, B.

Bonham-Carter, L.

Mayhew, L.

Boston of Faversham, L.

McIntosh of Haringey, L.

Bottomley, L.

McNair, L.

Broadbridge, L.

Merlyn-Rees, L.

Campbell of Eskan, L.

Monkswell, L.

Carter, L.

Monson, L.

Castle of Blackburn, B.

Morris of Castle Morris, L.

Cledwyn of Penrhos, L.

Morris, L.

Clinton-Davis, L.

Mustill, L.

Cocks of Hartcliffe, L.

Ogmore, L.

Craigavon, V.

Peston, L.

Dahrendorf, L.

Pitt of Hampstead, L.

Diamond, L.

Prys-Davies, L.

Donaldson of Kingsbridge, L.

Rea, L.

Donoughue, L.

Redesdale, L.

Dormand of Easington, L.

Richard, L.

Falkender, B.

Ritchie of Dundee, L.

Falkland, V.

Rochester, L.

Foot, L.

Rodgers of Quarry Bank, L.

Gilmour of Craigmillar, L.

Russell, E.

Gould of Potternewton, B.

Serota, B.

Graham of Edmonton, L.

Shaughnessy, L.

[Teller.]

Shepherd, L.

Halsbury, E.

Spens, L.

Hamwee, B.

Stallard, L.

Harris of Greenwich, L.

Stedman, B.

Haskel, L.

Stoddart of Swindon, L.

Hilton of Eggardon, B.

Strabolgi, L.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Holme of Cheltenham, L.

Tenby, V.

Howell, L.

Thomson of Monifieth, L.

Howie of Troon, L.

Tordoff, L.

Hylton-Foster, B.

Turner of Camden, B.

Irvine of Lairg, L.

Wedderburn of Charlton, L.

Jay of Paddington, B.

Wharton, B.

Jay, L.

White, B.

Jeger, B.

Wigoder, L.

Judd, L.

Williams of Elvel, L.

NOT-CONTENTS

Abinger, L.

Blyth, L.

Addison, V.

Boardman, L.

Ailsa, M.

Boyd-Carpenter, L.

Aldington, L.

Brabazon of Tara, L.

Alexander of Tunis, E.

Bridgeman, V.

Allenby of Megiddo, V.

Brougham and Vaux, L.

Annaly, L.

Burnham, L.

Archer of Weston-Super-Mare, L.

Burton, L.

Arran, E.

Cadman, L.

Astor of Hever, L.

Campbell of Alloway, L.

Astor, V.

Campbell of Croy, L.

Atholl, D.

Carnock, L.

Balfour, E.

Carr of Hadley, L.

Barber, L.

Chalker of Wallasey, B.

Belhaven and Stenton, L.

Clanwilliam, E.

Bethell, L.

Clark of Kempston, L.

Blatch, B.

Colnbrook, L.

1421

Colville of Culross, V.

Mountgarret, V.

Cork and Orrery, E.

Mowbray and Stourton, L.

Courtown, E.

Murton of Lindisfarne, L.

Craigmyle, L.

Nelson, E.

Cranborne, V.

Newall, L.

Crathorne, L.

Norrie, L.

Cross, V.

Orkney, E.

Cumberlege, B.

Orr-Ewing, L.

Dean of Harptree, L.

Oxfuird, V.

Denham, L.

Park of Monmouth, B.

Denton of Wakefield, B.

Parkinson, L.

Derwent, L.

Pearson of Rannoch, L

Dixon-Smith, L.

Peel, E.

Downshire, M.

Platt of Writtle, B.

Eden of Winton, L.

Plummer of St. Marylebone, L.

Ellenborough, L.

Rankeillour, L.

Elles, B.

Rawlinson of Ewell, L.

Elphinstone, L.

Reay, L.

Elton, L.

Renton, L.

Ferrers, E.

Renwick, L.

Fraser of Carmyllie, L.

Rodger of Earlsferry, L.

Gardner of Parkes, B.

Romney, E.

Geddes, L.

Salisbury, M.

Gisborough, L.

Saltoun of Abernethy, Ly.

Glenarthur, L

Savile, L.

Goold, L.

Seccombe, B.

Goschen, V.

Selborne, E.

Gowrie, E.

Sharples, B.

Gray of Contin, L.

Simon of Glaisdale, L.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Halifax, E.

Soulsby of Swaffham Prior, L.

Hanworth, V.

St. Davids, V.

Harding of Petherton, L.

St. John of Bletso, L.

Henley, L.

Stanley of Alderley, L.

HolmPatrick, L.

Strafford, E.

Hothfield, L.

Strange, B.

Howe of Aberavon, L.

Strathcarron, L.

Howe, E.

Strathclyde, L.

Jenkin of Roding, L.

Strathmore and Kinghorne, E.

Kimball, L.

[Teller.]

Knutsford, V.

Sudeley, L.

Leigh, L.

Suffield, L.

Lindsey and Abingdon, E.

Swinfen, L.

Long, V.

Taylor of Gosforth, L.

Lucas of Chilworth, L.

Thomas of Gwydir, L.

Lyell, L.

Trumpington, B.

Mackay of Ardbrecknish, L.

Ullswater, V. [Teller.]

Mancroft, L.

Vaux of Harrowden, L.

Marlesford, L.

Vestey, L.

McColl of Dulwich, L.

Vivian, L.

Merrivale, L.

Wakeham, L. [Lord Privy Seal.]

Mersey, V.

Wedgwood, L.

Miller of Hendon, B.

Wise, L.

Milverton, L.

Wolfson, L.

Mottistone, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.9 p.m.
Clause 34 [Effect of accused's failure or refusal to account for objects, substances or marks]:
[Amendments Nos. 38 and 39 not moved.]
Clause 35 [Effect of accused's failure or refusal to account for presence at a particular place]:
[Amendments Nos. 40 and 41 not moved.]
Clause 36 [Interpretation and savings for sections 32,33, 34 and 35]:
Earl Ferrers Earl Ferrers moved Amendment No. 41A:
Page 25, line 35, after ("32(2)") insert (", 34(2) or 35(2).").
On Question, amendment agreed to.
[Amendment No. 42 not moved.]
The Lord Advocate (Lord Rodger of Earlsferry)The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 43:
After Clause 38, insert the following new clause:
Jury service: disabled persons
(". After section 9A of the Juries Act 1974 there shall be inserted the following section—
"Discharge of summonses to disabled persons only if incapable of acting effectively as a juror.
9B—(1) Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of physical disability there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge.
(2) The judge shall deteimine whether or not the person should act as a juror; but he shall affirm the summon sunless he is of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror, in which case he shall discharge the summons.
(3) In this section "the judge" means any judge of the High Court or any Circuit judge or Recorder.").
The noble and learned Lord said: My Lords, as your Lordships may recall, I indicated in Committee that the Government supported in principle an amendment moved by the noble Lord, Lord Ashley of Stoke:, which sought to create a presumption that people with physical disabilities should serve on juries when summoned.
The amendment seeks, as did the noble Lord's, to restate the present law to create an absolutely clear presumption in favour of people with disabilities serving on juries. It creates a new section dealing specifically with the arrangements for discharging a person with a physical disability. It states clearly that the judge should affirm a jury summons unless he is of the opinion that such a person could not act effectively. We hope that that will send a helpful signal to the courts.
At the same time, I should emphasise that the amendment does not affect the existing arrangements whereby a person with a disability may apply for and be granted excusal by the summonsing officer if there is good reason for that person not serving. I beg to move.
Lord McIntosh of Haringey: My Lords, before the noble and learned Lord Advocate sits down, does he not also wish to speak to Amendment No. 44 and the later amendments which are grouped together?
Lord Rodger of Earlsferry: My Lords, I am obliged to the noble Lord. Perhaps that would be the simplest way to deal with the matter.
Amendment No. 44 relates to another matter which arose in Committee. On that occasion, I indicated to the noble and learned Lord, Lord Archer of Sandwell, that the Government accepted in principle his amendment on excusal from jury service on religious grounds. I hope that the amendment now before the House answers the point that the noble and learned Lord made at that time. We believe that it will allow for greater certainty and consistency in the way that applications for excusal on religious grounds are dealt with by the courts. Those two amendments are the only ones in the group to which I am able to speak.
Lord Archer of Sandwell: My Lords, I should like to speak to Amendment No. 44. I, too, participated in the debate which led to the tabling of Amendment No. 43. In relation to both amendments, I should like to thank the noble and learned Lord for doing precisely what we asked him to do. Amendment No. 44 has precisely the formulation that I had in mind. The noble and learned Lord will have the gratitude of those most

1423
immediately affected and will also have earned the gratitude of the many who will never even know the contribution that he has made to ensure that they receive a fair trial. As regards both amendments, it is obvious that the Government have listened to the argument and changed their mind. I hope that they enjoyed the experience and that they will now decide to do so more often.
6.15 p.m.
Lord Ashley of Stoke: My Lords, I should like to speak to Amendments Nos. 43, 88A and 89.I am most grateful to the noble and learned Lord for bringing forward Amendment No. 43. It is usual for me to cross swords with his department on some issues, but on this occasion I should like to hand a bouquet to the noble and learned Lord because I believe that that amendment represents a very considerable advance.
I am glad that the noble and learned Lord has included all disabled people in the amendment. It is important that the discrimination that they have suffered should be dealt with effectively by the Government. At present I am primarily concerned about deaf people as regards the amendment. There are very few deaf people; in fact, there are no deaf people who are able to serve on juries and very few disabled people who are able to do so. That is most remarkable when we consider the assurances that we very often receive from Ministers about the present situation.
A classic case of the exclusion of a deaf person from jury service was that of Elaine Heath. That case was well publicised and no doubt the noble and learned Lord will know all about it. Elaine Heath had computer-aided transcription available to her. Even though she could follow perfectly all the proceedings of the court, the judge in his wisdom decided that she was not fit to be a juror. I believe that that was a clear case of discrimination against a disabled person and probably a misunderstanding by the judge. I hope that such a situation can be avoided in the future.
I fully accept that it is the judge who must decide whether or not a person will serve as a juror. Indeed, only a judge can make that decision. However, the problem is that some judges have very old-fashioned ideas about deaf people and most outdated ideas about disabled people in general. Sometimes they are not aware of the developments in the measures that can be used to assist deaf and disabled people. I should have thought that very few judges have actually used computer-aided transcription; that is, the kind of thing that I use in this House. It is a most wonderful piece of equipment and it means that there is total understanding of what is going on. Yet Elaine Heath was denied by that judge the right—and it is a right—to take part in jury service.
The problem is that too many judges tend to equate disability with a lack of general ability. That idea is two or three decades out of date. Perhaps the noble and learned Lord could send a polite note to judges on the matter. I do not know what his remit is, but if he cannot do so, perhaps he could take part in a few Middle Temple dinners. After the third glass of port, he could
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probably remind the judges of the best thing to do when they are faced with disabled people who are applying to be jurors or applying for any other role in the courts.
The amendment requires the judge to presume capability. That is of great importance. I say that because, without the amendment, judges would still tend to view disabled and deaf people through the wrong end of the telescope; in other words, they would still see them as little people lacking in ability, and so on. The amendment puts the matter right. I must say that I found the noble and learned Lord to be most understanding during the early stages of the Bill. True to his word, he has now come forward with a very valuable amendment. But—and I always add a "but" when praising a Minister —even now the provisions depend upon the perception of the very same judges who have made mistakes in the past. There is still no right of appeal and no right to request the reasons for rejection. If the noble and learned Lord could help on this matter I should be most grateful.
I should also be grateful if the noble and learned Lord would draw the attention of the judges to the amendment that he has moved. I say that because it is most important to disabled people. Further, perhaps he could draw the judges' attention to the debate that led to the tabling of the amendment. I do not say that because I believe my words to be so important; indeed, there were far more important speakers in the previous debates whose words of wisdom should also be heeded by the judges.
I have a further question for the Minister. Will he kindly monitor the judges' decisions for at least five years, and preferably five-and-a-half or six years? Will he request the judges voluntarily to give reasons for rejecting disabled people? That is an ordinary, reasonable, modest request. I would be grateful if he would do that. If the noble Minister is unable to do that, I thank him in any case because I am grateful for the constructive way in which he has dealt with this problem which troubles and worries disabled people and, more particularly in this case, deaf people.
I shall say a few brief words—I do not like long speeches —on Amendments Nos. 88A and 89. I shall leave Amendment No. 89 to the noble Lord, Lord Swinfen, not only because he is better informed than I, better looking than I and more eloquent than I, but because the amendment is in his name. I just wish to add to what he will probably say. I think his amendment is important because it will make provision for disabled people via the code of practice. At present they suffer a great deal of inconvenience and even discrimination.
I am afraid my final point will take about four minutes. I do not like people who refer to their final point eight times, but this is definitely my final point. On this question of the code of practice for deaf and hard-of-hearing people, I must say that without sign language interpreters, or other forms of communication support, profoundly deaf people are cut off from the proceedings. Inevitably, injustice is bound to result. Ministers are always reassuring about the situation and they emphasise what is being done. The Home Office and the Lord Chief Justice's department believe that the present provision is adequate. They have some fine civil servants working for them who are also very helpful.

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But I have to tell the Minister that there are serious problems despite the belief of the Home Office and the Lord Chief Justice's department that the problems have been virtually solved. For example, only a small number of courts and police stations have adequate provision. There is widespread confusion about what is available and about who pays for these things.
I know that payment is no problem for deaf millionaires. I do not know many deaf millionaires but I am pretty sure they would not be worried if they had to go to court for whatever reason. But the Home Secretary told me on 26th April of this year that interpreters are paid from public funds. However, the Royal National Institute for the Deaf understands that even in criminal courts payment is at the discretion of the court. Why should that be so? Why should payment be discretionary? This is a basic requirement for deaf people and it should be provided automatically. If the noble Minister can be as helpful on this as he has been on the previous occasion, I should be grateful.
That is the position as regards the criminal courts, but what about the civil courts? Provision depends upon the availability of legal aid. That means that millions of people are denied the measures I am discussing. I am sure the Minister will not be too happy about that. I know that cost is a grey area. In view of the kindness of the Minister—he has been very helpful indeed on this Bill and I appreciate that—I should like to ask him to say who has to pay for interpreters for deaf people. No one really seems to know. If he could advise us on that, I would be very grateful. What is the justification for the decision on that matter?
I am glad that the authorities now realise that deaf people need interpreters. However, what they do not realise is that there are different forms of interpretation. Some deaf people need sign language interpreters, some need lip speakers and some need the kind of computer-aided transcription that I have mentioned. Providing the wrong kind of facility is the equivalent of offering a Frenchman a Spanish interpreter, or an Englishman a Chinese dictionary. Neither is very helpful. Therefore, it is important to be precise about the kind of problem one is dealing with and about the kind of help that is offered.
I hope I may refer to a remarkable case as the House is entitled to know exactly how I justify my claim about deaf people. Mrs. A is a deaf woman from whom a large sum of money was stolen by a man. For her this was an absolutely crucial case. She wrote down her complaints for the judge. It was only when she was in the witness box that she was told that she could have a sign language interpreter. However, she could not un-derstand sign language. She had been offered the wrong kind of help. She struggled through a cross-examination conducted by a truculent defence barrister. It so happened that a woman from Victim Support was present and able to help. With that person's assistance Mrs. A struggled through the cross-examination. But without that assistance from Victim Support the lady would have been forced to struggle alone, faced by an intimidating defence counsel who would not even look at her to put questions. The lady did not even understand the verdict. That is clearly a case of injustice. The case
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was so important to her that she asked stenographers for a full report. She was told that would cost her £800 a day. She could not afford that. How can one justify that kind of treatment?
I wish, in 30 seconds, to tell the House of the startling case of Mr. B who sued for medical negligence. That is difficult at the best of times. Anyone who takes on doctors unless he is a skilled legal Member of this House or some similar luminary is a brave man. However, the chap I am discussing sued for medical negligence. He was totally deaf, had double vision and brain damage and was unable to walk unaided. As the courtroom was on the top floor he could only attend in the courtroom for one day. He needed a transcript but he was told it would cost £6,000 to £8,000. When he asked his lawyer to help he was sent a scribbled illegible note from the solicitor's clerk which contained nothing about the judge's summing up. He was told that he had lost his case and that he could not appeal, but he does not know why. That man, like the woman I mentioned, was denied normal justice because of disability.
Those are but two examples of gross discrimination. I repeat my thanks to the noble Minister because I appreciate the way he has dealt with this matter. He will not be able to meet all my requests because they are a little complicated and demanding. I realise that, but in thanking the Minister I ask him to try to answer some of the questions that I have put to him. If he is unable to do so, perhaps he could write to me when convenient
Lord Ashbourne: My Lords, as I had my name to the original Amendment No. 43 perhaps I may briefly support the noble and learned Lord, Lord Archer of Sandwell, in thanking the Government most sincerely for taking this amendment on board and moving it tonight. It will give tremendous satisfaction to many people outside this Chamber who feel strongly on this matter. I feel most encouraged that, on this occasion anyway, the Government have proved (hat they are a government who will listen to sincere cases put forward in your Lordships' House and, I dare say, even in another place. If they are persuaded by the argument they will take the issue on board and move an amendment themselves. That, frankly, to me is very encouraging. So often one has the feeling—noble Lords must judge for themselves whether or not they agree with me, but I do not speak particularly of this Government—that governments sometimes take the attitude: "Do not bore us with facts. Our mind is made up. We are going to drive it through willy-nilly". However, on this occasion, the Government have shown quite clearly that that is not the case. I wish most sincerely to thank the Government for taking on board Amendment No. 43.
6.30 p.m.
Lord Swinfen: My Lords, I greatly welcome my noble and learned friend's amendment, Amendment No. 43, because people with disabilities should be considered as perfectly ordinary people and their disabilities should not be allowed to become a handicap. My amendment, Amendment No. 89, is grouped with that amendment. The fact that we shall probably put my

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noble and learned friend's amendment into the Bill tonight means, in my view, that the need for a code of practice for all disabled court users is all the greater. The fact that my noble and learned friend is willing to put the amendment in the Bill emphasises that fact.
There are many problems relating to access to courts for disabled people. That applies to people with all kinds of disabilities and to all business in the courts, either as witness, defendant or lawyer. The Crown and county courts, as the House will know, are covered by the Lord Chancellor's Department's court standards and design guide, which stipulates that all new courthouses and those undergoing significant alterations or extension must comply with Part M of the building regulations. However, the Lord Chancellor's Department's guide to facilities for disabled people in Crown and county courts also shows that current provision is abysmal. At 44 per cent. of courts the main entrance is not accessible; 59 per cent. have no toilet facilities for disabled members of the public; and only 6 per cent. have facilities for the deaf or people who are hard of hearing. In addition, Crown and county courts have court immunity, which means that they are not subject to the usual building control process.
When Wolverhampton combined court was built some two years ago, no plans were submitted to the planning authority. Only after the court had been built was inadequate provision brought to light. When a disabled solicitor attended the court on behalf of his client he found that he was unable to use the lavatory facilities because he could not gain access. Nor could he move his wheelchair around the courtroom.
I could detail what we should include in a code of practice, but I do not think that that would be helpful at this moment. I also recognise that many courts are listed buildings and that my expectations and those of disabled people must be tempered by that fact and the issue of reasonable costs.
During the passage of the Police and Magistrates' Courts Bill through this House my noble and learned friend, after I had spoken in Committee, gave me an amendment to bring forward at Report stage which provided that magistrates' courts committees had to have regard to the needs of disabled court users. In addition, in other Bills that have gone through this House the Government have responded favourably towards similar amendments. An amendment to the Railways Bill resulted in the Department of Transport's mobility unit drawing up a useful code of practice for future rail franchisees relating to people with disabilities. In the Education Bill 1993 a code of practice was drawn up to show what was expected of all schools in order to meet special educational needs. Therefore, the Government are not averse to codes of practice. I urge them to consider that approach in this case.
Before I finish, I should mention that it is the convention of this House that at Report stage I should not speak again. Therefore, I cannot speak after my noble and learned friend replies to the debate. However,
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I should point out that if I do not like what he says I may well return to the matter at a later stage. However, I hope that I shall like what he says.
Lord Renton: My Lords, there are two matters arising on Clause 43 which I feel obliged to mention. The first is that, in exercising his discretion under subsection (2), in my opinion the judge should give the benefit of the doubt to a disabled person who does not wish to serve.
My second point is that I do not believe that blind people should serve on juries anyway. I say that for two reasons. First, increasingly in cases today documents have to be considered. Those are not merely typewritten documents but documents in ordinary calligraphy. Sometimes even policemen's notebooks have to be considered. Secondly, it is essential that juries should be able to observe the behaviour of witnesses who are giving evidence. A blind person cannot do that. Justice must be done.
That brings me to the amendment of the noble Lord, Lord Ashley of Stoke, Amendment No. 88A. I am glad that the noble Lord has pressed the case, but there is a limitation in that case also which we should not ignore. By all means let us give this opportunity to deaf people or those who are hard of hearing, but above all we must ensure that justice is done. If the deafness is so extreme that the deaf person could not take in all that is said, especially all that is said on behalf of the accused, then in my opinion that deaf person should not be required to serve.
That brings me to Amendment No. 89, because the three points that I have mentioned could very well be contained in a code of practice.
Lord Archer of Sandwell: My Lords, before the noble Lord sits down, I wonder whether he agrees that a great deal of what has been said by himself, by my noble friend and by the noble Lord opposite could be met if the noble and learned Lord the Lord Advocate could direct the attention of the Judicial Studies Board to these problems. There have been items in judicial seminars relating, for example, to the problems of racial minorities. A great deal could be done if this issue were addressed in judicial seminars of that kind.
Lord Renton: My Lords, I do not think that that is an answer to the problem. The Judicial Studies Board issues reports which are not binding on anyone and which are not in general circulation.
Lord Ashley of Stoke: My Lords, I wonder whether the noble Lord is aware that there is a blind judge. He does a marvellous job. Would the noble Lord be in favour of dismissing that judge as being unable to assess what is taking place in a court of law? Is the noble Lord not aware that crooks adopt a countenance which is designed to mislead the jury? A blind jurist would not be misled by a countenance which is designed to mislead and would have an advantage rather than a disadvantage in a court of law.
Lord Renton: My Lords, I have nothing to add to what I have said.
Lord Wigoder: My Lords, these amendments are of importance not only to disabled people but also to the administration of justice. For that reason, in general we support them.
I hope that I shall be forgiven if on a less serious note I say that I support the amendments with just a tinge of sadness. On many occasions friends have come to me and asked how they can avoid jury service because it is particularly inconvenient. I shall no longer be able to give them the advice I have always given. That is that all they need to do is to go along to court and when their name is called to go into the jury box they make no answer on the first two occasions and on the third they cup one hand to an ear and say, "Was that me?" They are at once discharged from all further attendance.
Lord Rodger of Ealsferry: My Lords, I am grateful for the kind words about the amendments from noble Lords on all sides of the House. The Government's task in accepting the amendments was made all the lighter by the very good-natured spirit in which the original amendments were moved and the sincerity with which the case was put forward.
A number of points have been made in connection with Amendment No. 43. It is true to say that it will be the judges who will have to take decisions under subsection (2) of the new section. Their attitude will be important. If I may say so, the point made by the noble and learned Lord, Lord Archer of Sandwell, is well taken on this matter in connection with the Judicial Studies Board. I shall take the liberty of drawing that point to the attention of my noble and learned friend the Lord Chancellor. Such a procedure may be one way of getting knowledge of this section and its importance into the system.
For the remainder, the duty is clear on the statute. I hope that statutes are a clearer method of transmitting a message even than Middle Temple dinners. When it is seen in statute that the presumption is to be in favour, I hope that that will do the trick. The issues involved where such service was refused could well be sensitive. I am not sure that giving reasons would be the best way of handling the matter.
With regard to the points raised by my noble friend Lord Renton, when moving the amendment I stressed that the existing arrangements are not in any way affected. A person with a disability may apply for and be granted excusal by the summonsing officer. Those who felt that they could and wanted to serve would have that right in force. It was not to put a burden on those who might otherwise feel that they could not serve.
With regard to the ability of a blind person to serve, as my noble friend says, in some cases such service may be wholly inappropriate. But it is for the judge in the individual case to decide whether a person with a specific disability is or is not capable of serving on the
The noble Lord, Lord Ashley of Stoke, made a number of points when speaking to Amendment No. 88A. If I may, I shall reply to a number of them in correspondence. However, in broad terms, as the noble Lord may know, my noble and learned friend the Lord Chancellor has agreed to meet members of Deaf Accord
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on 18th July to discuss provisions for the deaf in court. That will give an opportunity for the noble Lord, Lord Ashley, and others to bring to my noble and learned friend's attention the kinds of cases about which he has spoken. On the whole, the Lord Chancellor's Department has not been made aware of a great number of problems in, for example, obtaining sign language interpreters.
Inquiries have been made recently. It has been found, for example, that in magistrates' courts it has been the practice of the defence to obtain quite satisfactory services by using the sign language interpreters who have been provided for the prosecution. In broad terms, in many cases that is the key in criminal trials. If a witness is a prosecution witness, it will be the prosecution which in effect will have to bring to court the sign language interpreter, whoever he or she may be. Where that is not the case—as noble Lords will appreciate, in the vast majority of criminal cases the defendant will have the benefit of legal aid—-the provision of the appropriate interpreter is a charge on legal aid.
The noble Lord, Lord Ashley, referred to civil proceedings. I appreciate that there the position is different. Interpreters are a matter really for the parties. Where a party is legally aided, again the position is dealt with by legal aid. However, I recognise that where parties are not legally aided, if an interpreter is required it is a matter for the parties themselves. That may be a point which the noble Lord, Lord Ashley, and others will wish to discuss with my noble and learned friend at such a meeting.
Having explained to your Lordships the; position with regard to interpreters, I shall not repeat some of the points I made in reply to the noble Lord in Committee.
My noble friend Lord Swinfen moved an amendment in connection with a code of practice. The Government do not believe that a code of practice is in fact necessary. That is not because the point which the noble Lord raised is not important. It is already well understood that the matters to which the noble Lord draws attention should be taken into consideration. As my noble friend said, the higher courts are a matter for my noble and learned friend the Lord Chancellor. Already he requires that all new courthouses should comply with building regulations which set out standards of facilities for people with disabilities. It follows that the design of those buildings should, therefore, enable people with disabilities to have easy access into and around the building. Therefore I am quite happy to undertake that the Lord Chancellor will apply that approach to new buildings in the future.
My noble friend also drew attention to the position of existing buildings. I readily accept that not all of them at present have the facilities that he wishes. But those buildings will from time to time have to be refurbished. Subject to the constraints imposed by the design of the older buildings, the requirements of listing and the costs involved, again I am happy to undertake that when facilities are being upgraded care will be taken that appropriate facilities are provided for disabled court users. Indeed, that is already the position. Schemes currently undertaken for the refurbishing of existing

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court buildings are already subject to that requirement. Efforts are being made for appropriate improvements for the disabled in the access to and facilities in those buildings.
I am happy to have given those two undertakings. I hope that in the light of them my noble friend will feel able to withdraw his amendment. I hope that I have not become lost in a procedural morass. I believe that the correct procedure is for me to commend Amendment No. 43.
On Question, amendment agreed to.
6.45 p.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 44:
After Clause 38, insert the following new clause:
Jury service: excusal on religious grounds
(". In Schedule 1 to the Juries Act 1974, in Part III (Persons excusable as of right), after the entry entitled Medical and other similar professions, there shall be inserted the following—
"Members of certain religious bodies
A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service." ").
On Question, amendment agreed to.
Schedule 4 [Transfer for Trial]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 45 to 48:
Page 133, line 7, leave out from ("decides") to ("to") in line 8.
Page 133, line 8, after ("discontinue") insert ("or withdraw").
Page 133, line 9, at end insert:
("( ) the Commissioners of Customs and Excise decide, under section 152(a) of the Customs and Excise Management Act 1979, to stay or compound the proceedings;").
Page 133, line 48, at end insert ("unless the person to be served cannot be found").
The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 45 to 48. These are largely technical amendments concerning the transfer pro-cedures. The main purpose of the amendments is to cover circumstances other than those already specified in the Bill where the prosecution may decide not to proceed, or indeed may not be able to proceed, with the transfer of a case. Those are circumstances in which the prosecution withdraws, as opposed to discontinues, the proceedings and where the Commissioners of Customs and Excise may stay or compound proceedings.
Amendment No. 48 removes the requirement to serve a copy of the notice of the prosecution case on an accused person where he cannot be found. I believe that noble Lords will agree that that makes sense.
On Question, amendments agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 49 to 51:
Page 134, leave out lines 25 and 26.
Page 134, line 38, leave out from ("accused") to end of line and insert ("makes the representations permitted under").
Page 135, line 7, leave out ("(5) or").
The noble and learned Lord said: My Lords, again these amendments are connected with the transfer procedure. The effect of Amendment No. 49 is to remove the requirement on an unrepresented defendant to give an indication to the court in his application for
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dismissal of his intention, if any, to make oral representations. We have concluded that this is an unduly onerous burden to place on someone who is not represented and who may therefore not fully understand the procedure. It therefore follows that the unrepresent-ed defendant will always be permitted to make oral representations should he so wish. Of course in practice an unrepresented defendant will need to be notified by the court of the date on which his application is to be considered and thereby be given an opportunity to appear. That matter will be dealt with in rules or in guidance.
Amendment No. 50 is a drafting change and gives the effect that the prosecution will be permitted to make oral representations to the court only if the accused actually makes such oral representations.
Amendment No. 51 is consequential on Amendment No. 49. I beg to move.
On Question, amendments agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 52:
Page 135, line 50, leave out from beginning to ("for") and insert ("Where an accused has been remanded in custody, on transferring proceedings against him").
The noble and learned Lord said: My Lords, in speaking to this amendment I should also like to speak to Amendments Nos. 53 and 54, as well as to Amendment No. 73.
Amendment No. 52 is just a paving amendment. Amendment No. 53 substitutes a new subsection and it relates to a person who is already remanded in custody when the court proceeds with the transfer of his case. On transferring the proceedings against the accused, the court can, under new Section 8(1) of the Magistrates' Courts Act 1980, either order that he be safely kept in custody until delivered in due course of law or that he be released on bail to appear before the Crown Court for trial.
As currently drafted, the new Section 8(4) would allow the court to exercise these powers in the absence of the accused only if the circumstances were similar to those in which Section 128(3A) of the 1980 Act would apply. That gives only a limited range. It applies only where the previous remands are for no more than eight days each. In practice the courts remand for up to 28 days during the later stages of the proceedings. Therefore subsection (4) has been substituted to reflect that practice. However, noble Lords will wish to notice that the other provisions in the section have been preserved and they provide safeguards. Noble Lords will also wish to notice that we have added a safeguard by providing that the consent to this procedure must be in writing. In other words, the accused must have given his written consent to being remanded in his absence; the consent must not have been withdrawn; and the accused must have attained the age of 17 when he gave that consent. If those conditions are not satisfied the defendant will indeed have to appear on transfer of proceedings against him.
Amendment No. 54 provides a procedure for dealing with an accused who is already remanded on bail prior to transfer. The effect of the amendment would be to provide that, where proceedings against that accused are

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transferred for trial, the requirement for him to appear before the magistrates' court at the end of the period of remand will cease unless the court states that it shall continue. That is similar to procedure that is already found in the Criminal Justice Acts 1987 and 1991.
Where the court states that the requirement is to continue, the accused will be under a duty to surrender to the court at the end of the period of remand. The court will then have the power to release him on bail again in accordance with the Bail Act 1976 to appear at the Crown Court for trial or order that he be kept in custody until delivered in due course of law. Where the release on bail is subject to recognisances, the court may fix the amount in which the surety is to be bound with a view to the surety's entering into that recognisance subsequently. Meanwhile the court is to remand the accused to custody.
Amendment No. 73 again relates to the matter of transfer and again applies to someone who has been remanded on bail. It provides for the court to adjust the terms of recognisance so that it applies to ensure that the accused appears before the Crown Court for trial. A procedure will be specified for ensuring that the surety is notified of the decision to transfer the case and that he gives his consent to continuing to stand surety. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 53 and 54:
Page 136, leave out lines 23 to 29 and insert:

("(4) The court may exercise the powers conferred on it by subsection (1) above in relation to the accused without his being brought before it if it is satisfied—

(a) that he has given his written consent to the powers conferred by subsection (1) above being exercised in his absence;

(b) that he had attained the age of 17 years when he gave that consent; and

(c) that he has not withdrawn that consent.").

Page 136, line 29, at end insert:
("(4A) Where proceedings against an accused are transferred for trial after he has been remanded on bail to appear before a magistrates' court on an appointed day, the requirement that he shall so appear shall cease on the transfer of the proceedings unless the magistrates' court transferring the proceedings states that it is to continue.
(4B) Where that requirement ceases by virtue of subsection (4A) above, it shall be the duty of the accused to appear before the Crown Court at the place specified by the magistrates' court on transferring the proceedings against him for trial or at any place substituted for it by a direction under section 76 of the Supreme Court Act 1981.
(4C) If, in a case where the magistrates' court states that the requirement mentioned in subsection (4A) above is to continue, the accused appears or is brought before the magistrates' court, the court shall have the powers conferred on a magistrates' court by subsection (1) above and, where the court exercises those powers, subsections (2) and (3) above shall apply as if the powers were exercised under subsection (1) above.").
On Question, amendments agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 55:
Page 137, line 21, at end insert:
("( ) Where at any time during its consideration of an application for dismissal the court proceeds to try summarily the case of one or more of the accused under section 25(3) or (7) below, while dismissing the application for dismissal of the other accused or one or more of the other accused, it shall not be unlawful under this section to publish or include in a relevant programme as part of a report of the summary trial, after the court
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determines to proceed as aforesaid, a report of so much of the application for dismissal containing any matter other than matter permitted by subsection (8) below as takes place before the determination.").
The noble and learned Lord said: My Lords, the effect of this amendment is to provide that, where a court decides to try summarily the case of one or more accused and dismisses the application for dismissal of the other accused, it is lawful to publish or report: details of the application for dismissal as part of a report of the summary trial. It applies of course only to the details of the application for dismissal by the person who then goes for summary trial. That again replicates the procedure which is provided in the old Section 8(3) of the Magistrates' Courts Act 1980. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 56:
Page 138, line 38, at end insert:
(""the 1853 Act" means the Criminal Procedure Act 1853;
"the 1878 Act" means the Territorial Waters Jurisdiction Act 1878;
"the 1883 Act" means the Explosive Substances Act 1883;").
The noble and learned Lord said: My Lords, in moving Amendment No. 56 I shall also speak to the other amendments in the group. These amendments are entirely consequential on the new procedure for transferring cases to the Crown Court for trial. Again, this is a tidying up operation. They replace references across the statute book to committal with references to the new transfer procedure. This, as I understand it, is the result of a computer search of the statute book which has revealed the need for particular amendments. I beg to move.
Lord McIntosh of Haringey: My Lords, I do not wish to detain the House, but I am fascinated by the reference to these amendments being required as the result of a computer search. Will the noble and learned Lord the Lord Advocate tell the House whether, if the computer search is applied to a lot more legislation, we shall gain in the sense that we shall have less legislation, or are we to lose in the sense that we shall have more? My impression from this list of amendments is that we shall have more.
Lord Renton: My Lords, before my noble friend replies, I must enter the debate now. In the presence of the Chief Whip I feel bound to point out that Amendments Nos. 45 to 84, and others grouped with the amendments that we are now considering, together occupy 11 pages of the Marshalled List and involve nearly 50 amendments. We are a revising Chamber and it is quite clear that much of the work that comes to us arrives in an undigested state from another place. This is an example. We are handicapped because under our procedure at Report stage we would not only be unable to do so but would be very unpopular if we tried to discuss these amendments in detail.
I hope that on future occasions we may either be given the opportunity of having many of these amendments, which could have been put into the Bill originally, included when the Bill is first presented to us or be given the opportunity, which is always given in

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another place when new matter is introduced at Report stage, of having the particular amendments for committal. In other words, we can discuss them as in Committee without being fettered by the procedure on Report. I do not put that suggestion forward for any frivolous or pedantic reason but because there is a tendency for this situation to happen increasingly. It is something which ought to be discouraged if possible in the years to come.
7 p.m.
Lord Rodger of Earlsferry: My Lords, in reply to the noble Lord, Lord McIntosh, I can tell him that I asked this morning how these references were provided, and the answer was that a search had been made by computer. Once the statute book is on the database—we hope it will be later this year—it should make it easier to search and to obtain the references more quickly. I hope that, rather than having this data coming in—as your Lordships will appreciate that it tends to do—as the Bill proceeds, more of the references will be picked up and we shall be able to have them at an earlier stage. I hope that that will not increase the amount of legislation and certainly not lengthen the time that it will take.
To deal with my noble friend's point, I regret that these amendments have had to be brought forward, but they concern technical matters, except in so far as the amendments respond to amendments tabled by other noble Lords. They do not introduce new policy. They are technical matters, partly thrown up by the consideration that the Bill undergoes during Committee stage and so on. It is certainly better that such technical points are dealt with now rather than omitted and not included, therefore handicapping those who eventually have to use the legislation. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 57 to 72:
Page 138, line 41, at end insert:
(""the 1952 Act" means the Prison Act 1952;").
Page 138, line 45, at end insert:
(""the 1969 Act" means the Children and Young Persons Act 1969;").
Page 138, line 45, at end insert:
(""the 1973 Act" means the Powers of Criminal Courts Act 1973;").
Page 138, line 46, at end insert:
(""the 1978 Act" means the Interpretation Act 1978;").
Page 138, line 49, at end insert:
(""the 1982 Act" means the Criminal Justice Act 1982;").
Page 139, line 5, leave out ("and").
Page 139, line 6, at end insert:
("; and "the 1992 Act" means the Sexual Offences (Amendment) Act 1992.").
Page 139, line 6, at end insert:
("Criminal Procedure Act 1853 (c. 30.)
. In section 9 of the 1853 Act (bringing up a prisoner to give evidence), for the words "under commitment for trial" there shall be substituted the words "pending his trial in the Crown Court".
Territorial Waters Jurisdiction Act 1878 (c. 73.)
In section 4 of the 1878 Act (procedure under that Act), for the words "committal of there shall be substituted the words "transfer of proceedings against".
Explosive Substances Act 1883 (c. 3.)
In section 6(3) of the 1883 Act (inquiry by Attorney-General, and apprehension of absconding witnesses), for the words "committing for trial of there shall be substituted the words "consideration of an application for dismissal under section 6 of the Magistrates' Courts Act 1980 made by such person for such crime or the transfer for trial of proceedings against".").
Page 139, line 14, at end insert:
(". In section 56(1) of the Children and Young Persons Act 1933 (powers of courts to remit young offenders to youth court)—

(a) for the words "the offender was committed" there shall be substituted the words "proceedings against the offender were transferred"; and

(b) for the words "he was not committed" there shall be substituted the words "proceedings against him were not transferred".").

Page 140, line 4, at end insert:
("Prison Act 1952 (c. 52.)

.—(1) Section 43 of the 1952 Act (remand centres, etc.) shall be amended as follows.

(2) In subsection (1) (a)—

(a) the words "trial or" shall be omitted; and

(b) after the word "sentence" there shall be inserted the words "or are ordered to be safely kept in custody on the transfer of proceedings against them for trial".

(3) In subsection (2)—

(a) in paragraph (b)—

(i) the words "trial or" shall be omitted; and

(ii) after the word "sentence" there shall be inserted the words "or is ordered to be safely kept in custody on the transfer of proceedings against her for trial"; and

(b) in paragraph (c)—

(i) the words "trial or" shall be omitted; and

(ii) after the word "sentence" there shall be inserted the words "or ordered to be safely kept in custody on the transfer of proceedings against him for trial".

.In section 47(5) of the 1952 Act (rules for the management of prisons, remand centres, etc.), for the words "committed in custody" there shall be substituted the words "ordered to be safely kept in custody on the transfer of proceedings against them".").
Page 141, line 4, at end insert:
("Criminal Appeal Act 1968 (c. 19.)
.In section 1(3) of the Criminal Appeal Act 1968 (limitation of right of appeal in case of scheduled offence), for the word "committed" there shall be substituted the words "transferred proceedings against".").
Page 141, line 26, at end insert:
("Children and Young Persons Act 1969 (c. 54.)
.In section 23(1) of the 1969 Act (remands and committals to local authority accommodation)—

(a) in paragraph (a), for the words "or commits him for trial or sentence" there shall be substituted the words ", transfers proceedings against him for trial or commits him for sentence"; and

(b) for the words "the remand or committal shall be" there shall be substituted the words "he shall be remanded or committed".").

Page 141, line 26, at end insert:
("Powers of Criminal Courts Act 1973 (c. 62.)
.In section 21(2) of the 1973 Act (restriction on imposing sentences of imprisonment, etc., on persons not legally represented)—

(a) for the words "or trial" there shall be substituted the words "or in respect of whom proceedings have been transferred to the Crown Court for trial"; and

(b) after the words "committed him" there shall be inserted the words "or which transferred proceedings against him".

.In section 32(1) (b) of the 1973 Act (enforcement, etc., of fines imposed and recognizances forfeited by Crown Court)—

(a) the words "tried or" shall be omitted; and

(b) after the words "dealt with" there shall be inserted the words "or which transferred proceedings against him to the Crown Court for trial".").

Page 141, line 36, at end insert:
(".In section 5 of the 1976 Act (supplementary provisions about decisions on bail)—

(a) in subsection (6) (a)—

(i) for the word "committing" there shall be substituted the words "transferring proceedings against"; and

(ii) after the words "Crown Court" where they occur first, there shall be inserted the words "or has already done so"; and

(b) in subsection (6A) (a), for sub-paragraph (i) there shall be substituted the following sub-paragraph—

"(i) section 4(4) (adjournment when court is proceeding with a view to transfer for trial);".

. In section 6(6) (b) of the 1976 Act (absconding by person released on bail), for the words from "commits" to "another offence" there shall be substituted the words "transfers proceedings against that person for another offence to the Crown Court for trial".
. In section 9(3) (b) of the 1976 Act (agreeing to indemnify sureties in criminal proceedings), for the words from "commits" to "another offence" there shall be substituted the words "transfers proceedings against that person for another offence to the Crown Court for trial".").
Page 141, line 49, at end insert:
(".In section 4(6) (c) of the Sexual Offences (Amendment) Act 1976 (anonymity of complainants in rape etc. cases), for the words "commits him for trial on" there shall be substituted the words "transfers proceedings against him for trial for".").
Page 141, line 49, at end insert:
("Interpretation Act 1978 (c. 30.).
.In Schedule 1 to the 1978 Act—

(a) in the definition of "Committed for trial", paragraph (a) shall be omitted; and

(b) after the definition of "The Tax Acts" there shall be inserted the following definition—

'Transfer for trial" means the transfer of proceedings against an accused to the Crown Court for trial under section 7 of the Magistrates' Courts Act. 1980.").
The noble and learned Lord said: My Lords, I beg to move these amendments en bloc.
On Question, amendments agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 73:
Page 145, line 30, leave out from ("words") to ("; and") in line 31 and insert (""transfers for trial proceedings against a person who has been remanded on bail" ").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 74 to 84:
Page 145, line 35, at end insert:
(".In section 145(1) (f) of the 1980 Act (rules: supplementary provisions), for the word "committed" there shall be substituted the words "in respect of whom proceedings have been transferred".").
Page 145, line 45, at end insert:
("Criminal Attempts Act 1981 (c. 47.)
. In section 2(2) (g) of the Criminal Attempts Act 1981 (application of procedural and other provisions to attempts), the words "or committed for trial" shall be omitted.").
Page 147, line 13, at end insert:
(". In section 80(2) of the 1981 Act (process to compel appearance before Crown Court), for the words from "the person" to "committed" there shall be substituted the words "proceedings against the person charged have not been transferred".").
Page 147, line 13, at end insert:
("Criminal Justice Act 1982 (c. 48.)
. In section 1(2) of the 1982 Act (restrictions on custodial sentences for persons under 21)—

(a) the words "trial or" shall be omitted; and

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(b) after the word "sentence" there shall be inserted the words "or ordered to be safely kept in custody on the transfer of proceedings against him for trial".

. In section 3(2) of the 1982 Act (restriction on imposing custodial sentences on persons under 21 not legally represented)—

(a) for the words "or trial" there shall be substituted the words "or in respect of whom proceedings have been transferred to the Crown Court for trial"; and

(b) after the words "committed him" there shall be inserted the words "or transferred proceedings against him".").

Page 147, leave out lines 15 to 26 and insert:
("(1) Section 52 of the 1983 Act (provisions relating to persons remanded by magistrates' courts) shall be amended as follows.
(2) In subsection (2), for the words from "accused" to "or" there shall be substituted the words "court, on transferring proceedings against the accused to the Crown Court for trial, orders him to be safely kept in custody, or commits the accused in custody to the Crown Court".
(3) In subsection (5), after the words "expired or that" there shall be inserted the words "proceedings against the accused are transferred to the Crown Court for trial or".
(4) In subsection (6), after the word "If there shall be inserted the words "proceedings against the accused are transferred to the Crown Court for trial or".
(5) In subsection (7)—

(a) for the words from "inquire" to "into" there shall be substituted the words "proceed with a view to transferring for trial proceedings for"; and

(b) for the words from "commit" to "1980" there shall be; substituted the words "transfer proceedings against him for trial".").

Page 147, line 30, at end insert:
("Police and Criminal Evidence Act 1984 (c. 60.)
. In section 62(10) (a) of the Police and Criminal Evidence Act 1984 (power of court to draw inferences from failure of accused to consent to provide intimate sample), for sub-paragraph (i) there shall be substituted the following sub-paragraph—
"(i) whether to grant an application for dismissal made by that person under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial); or".").
Page 147, line 39, at end insert:
(". In section 21(6) of the 1985 Act (interpretation, etc.), in paragraph (b), for the words from "the accused" to "but" there shall be substituted the words "proceedings against the accused are transferred to the Crown Court for trial but the accused is".'").
Page 148, line 27, at end insert:
("(4) In section 6(5) (applications for dismissal), for the words from "a refusal" to the end there shall be substituted the words "the dismissal of a charge or charges against an accused under section 6 of the Magistrates' Courts Act 1980.".").
Page 149, line 50, at end insert:
(". In section 17 of the Coroners Act 1988 (supplementary provisions applying on adjournment of inquest)—

(a) in subsection (2)—

(i) after the word "Where" there shall be inserted the words "proceedings against"; and

(ii) for the words "is committed" there shall be substituted the wonts "are transferred"; and

(b) in subsection (3) (b), for the words "that person is committed" there shall be substituted the words "proceedings against that person are transferred".").

Page 150, line 27, at end insert:
("( ) In paragraph 5 of Schedule 6 (applications for dismissal), in sub-paragraph (7), for the words from "a refusal" to the end there shall be substituted the words "the dismissal of a charge or charges against an accused under section 6 of the Magistrates' Courts Act 1980.".").
Page 150, line 30, at end insert:
("Sexual Offences (Amendment) Act 1992 (c. 34.)
. In section 6(3) (c) of the 1992 Act, for the words "commits him" there shall be substituted the words "transfers proceedings against him".").
The noble and learned Lord said: My Isolds, I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Clause 42 [Criminal Damage, etc. as summary offence—relevant sum]:
Lord Monson Lord Monson moved Amendment No. 85:
Page 27, line 20, leave out ("£5,000") and insert ("£4,000").
The noble Lord said: My Lords, the purpose of this amendment is to provide a little more justice for victims of serious criminal damage than the Government seem willing to provide and, with luck, to help prevent such damage being caused in the first place.
The Magistrates' Courts Act became law on 1st August 1980. In that Act the relevant sum—which equates to the cost of the damage caused—below which the case would be triable only summarily was fixed at £200. To most people that seemed to strike a very reasonable balance. Between August 1980 and May 1994 (the most recent month for which the RPI figure is available) the RPI rose 112.58 per cent. by my calculation. To keep the figure constant in real terms, the present watershed (if I may so describe the sum in question) should be £425. However, the Government have already, since 1980, raised the real watershed value by a factor of 4.7 to £2,000. Now, to add insult to injury, it is proposed to raise it by a factor of 11.6 per cent. —in real terms, to £5,000. The amount of £5,000 is not a trivial sum where criminal damage is concerned. The owner of a car smashed into by joyriders and written off may have been able to insure the car for third party, fire and theft only. Similarly, a householder may not have been able to insure his or her furniture or garden equipment against similar destruction.
Your Lordships may consider my suggestion of a 20 per cent. reduction of the sum proposed by the Government rather feeble—mere tokenism, as it were. Ideally, I should like to have inserted a much lower figure. However, I concluded that figure of £4,000 was a compromise that the House and possibly even the Government would be more likely to accept. I beg to move.
Lord Rodger of Earlsferry: My Lords, the reason for the change from £2,000 to £5,000 is to put right an omission made in 1991. As the noble Lord said, the original sum was £200. It was raised eventually to £2,000 by the Criminal Justice Act 1988. At that stage it was in line with a number of other financial thresholds. Those financial thresholds were raised by a factor of 2.5 in the Criminal Justice Act 1991. It was the intention to raise all the thresholds by that factor at that time. However, by inadvertence that particular threshold was missed out. What has been done is simply to put right what should have been done three years ago in the Criminal Justice Act 1991. It is a matter of catching up.
Nobody denies that damage in the order of such figures can be a serious matter. But this amendment simply raises the threshold, still leaving the magistrates with die discretion to decide on the appropriate venue for more serious offences involving criminal damage between £5,000 and £10,000.
In that connection I observe to the noble Lord that the Lord Chief Justice gives guidance on mode of trial. His

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guidance suggests that summary trial is appropriate where the value of the property destroyed or damaged is less than £10,000. That is the Lord Chief Justice's guidance on the matter. Noble Lords can see that we have raised the figure only to £5,000 despite that guidance. Therefore we feel that we are catching up on a technical oversight. We are also well within the policy range indicated by the Lord Chief Justice. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Monson: My Lords, I am most grateful to the noble and learned Lord for his explanation. I do not believe that I can make much headway against both the Government and the Lord Chief Justice. The fault seems to lie basically with the 1991 Act, which received a certain amount of criticism at the time: I do not believe that it would be inappropriate to repeat it briefly.
There is no doubt that the higher threshold saves money, but it does so at the expense of justice to those who have been wronged and who perhaps have lost the equivalent of six months' earnings. In many cases they have no chance of recovering the money. Moreover, the lower maximum penalty may tempt more young people to indulge in this kind of destructive behaviour.
It is odd that, on the one hand, the Government constantly impose higher maximum penalties because they say that they are needed for deterrent purposes, but, on the other hand, in this particular instance effectively they lower the maximum penalty, even though the crime in question is by no means in decline; on the contrary, it is increasing. However, for the moment I believe that I have said all that can be said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Annaly: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage does not begin again until ten minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.

Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994
7.12 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley)The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley) rose to move, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee].
The noble Lord said: My Lords, in moving this order I will also speak to the second order that relates to Scotland. The two orders are long awaited and will, I am sure, be widely welcomed. They will enable industrial tribunals to hear claims arising not only from various statutory employment rights as they do at the moment, such as the right not to be unfairly dismissed, but also contractual claims, such as for notice pay, which may arise at the same time. Currently, these claims generally

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have to be pursued separately in the separate courts. This is administratively inconsistent as well as costly, time-consuming and inconvenient to all concerned. Consultation showed overwhelming support for the extension of the jurisdiction of industrial tribunals to cover such claims. The draft orders are judicial matters and are therefore to be made by my noble and learned friends the Lord Chancellor and the Lord Advocate. They are brought forward under Section 131 of the Employment Protection (Consolidation) Act 1978, as amended by the Trade Union Reform and Employment Rights Act 1993.
The two orders are identical in substantive effect, but the House may like to note the following particular aspects. Under Article 3 the new jurisdiction is limited to complaints which arise or which are outstanding at the end of the employee's employment. Under Article 4 employers can counter-claim where employees have made a complaint that they have not settled or have withdrawn. Under Article 5 personal injury and some other claims, for example disputes about intellectual property, are excluded from the new jurisdiction as being outside the industrial tribunals' normal field of expertise. Under Articles 7 and 8 employees will normally have three months to make a claim and employers six weeks from being notified of employees' applications. Finally, under Article 9 an upper limit of £25,000 is set on the amount that a tribunal may award under the new jurisdiction. That is both in line with County Court practice and is round about the highest amount normally payable in an unfair dismissal case. Of course, anyone who wishes to claim a larger sum will be free to do so in the civil courts which will have concurrent jurisdiction. I commend the draft orders to the House.
Moved, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee]—(Lord Henley.)
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of the orders. They are long awaited and are broadly acceptable and welcomed by many of those who are concerned with industrial relations generally. However, I should like to raise one or two points. Is the Minister satisfied that the resources are available at industrial tribunals to enable them to cope with the extra work? We all know that the tribunals are rather overwhelmed by work at the moment. If there is an onward reference to an EAT the case may well take as long as two years. How does that compare with the time taken in the civil courts? I know that one of the intentions in referring these matters to industrial tribunals is to ensure speedy resolution of issues.
The second point I raise is related to the three months a claimant has in which to lodge a claim with an industrial tribunal. Is that not a rather short period? There may very well be a necessity to continue negotiations. Indeed, very often issues that are referred to the civil courts are the subject of negotiation and before the case is heard a settlement has been achieved. If people are to have only three months in which to make their references to an IT, is it not possible that they will be making references to protect their position even

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while negotiations proceed? That seems a rather short period. Perhaps a longer period could have been provided.
Thirdly, I note that there is an upper limit of £25,000. I understand why that is so. In most instances it will be more than adequate for ordinary breach of contract of employment cases. However, if the case is likely to exceed £25,000 the individual concerned may be well advised to commence proceedings in the civil court. Having said that, I welcome the long-awaited orders. I hope for some reactions from the Minister to the points I have raised.
Lord Lester of Herne Hill: My Lords, as someone with practical experience of arguing cases before industrial tribunals, as well as employment cases before the ordinary civil courts, I too welcome the draft orders. I agree with all the points raised by the noble Baroness, Lady Turner; I wish to add one or two of my own.
First, I believe it is good to put on record that industrial tribunals have been a great success story in the 30 years since their establishment. I remember that they were first set up to deal with industrial training levies in 1964. Step by step were added redundancy payments, unfair dismissal, equal pay, sex discrimination, race discrimination and so on. In my judgment, they have done well, despite limitations on their resources, in giving speedy decisions in simple cases. They have not done well in complicated cases, especially discrimina-tion cases with a European Community aspect where the issues are at least as complicated as the most difficult income tax cases or ordinary litigation in the High Court.
The first point I raise does not strictly arise under the order as it stands. However, I believe that if one is widening the jurisdiction of industrial tribunals there is need to think about ways to take difficult and complex cases of that kind away from them and to transfer them to some other tribunal, whether it be the Employment Appeals Tribunal as a court of first instance or the High Court. But I am sure that at the moment they are not capable of dealing with complicated, large cases of that kind.
Secondly, I am troubled about the uncertainties of transferring industrial tribunal cases to and from the civil courts. As I read them, there is nothing in the draft orders that gives any express right to transfer appropriate cases between an industrial tribunal and the civil courts. That is a serious omission which may lead to delay, excessive cost and perhaps injustice. A right of transfer does not appear in the industrial tribunal rules, nor in the county court or High Court rules. That is very troublesome. It is even troublesome at present in equal pay cases where it is very unclear what the precise relationship is between a High Court contract claim for equal pay and an industrial tribunal claim and how one should deal with transfers from one to the other.
As regards damages, my view is that the proposed upper limit of £25,000 is inadequate. Many straightfor-ward claims for wrongful dismissal now exceed that figure. Should there be any limit, I think that a figure of £50,000, being the figure at which cases are normally considered appropriate for the High Court, would have

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been more appropriate. Leaving that to one side since it is outwith the order as it stands, it is unclear to me whether Article 10 is intended to apply the limit of £25,000 to the aggregate of any claim and counter-claim on the same contract or whether, alternatively, the limit is intended to apply separately to any claim by the employee and also to any counter-claim by the employer. I should be grateful if that uncertainty could be clarified.
In the county court, interest on damages is calculated from the date on which the cause of action accrues. Under the Sex Discrimination and Equal Pay (Remedies) Regulations 1993 industrial tribunals must calculate interest in a broadly similar way to that under the sex discrimination legislation. Interest on damages claims brought in the industrial tribunals should, I suggest, be calculated in the same manner as interest would have been calculated in the county court if the claim had been brought in that jurisdiction. To do otherwise is to undercompensate the innocent victim of a breach of contract and, in effect, to reward the contract breaker—the person in breach.
I share the concern of the noble Baroness, Lady Turner, as to resources. I wonder whether I may make a practical suggestion which I think would not result in more public expenditure but would ease the operation of the draft orders. In using part-time chairmen of industrial tribunals there should be no upper limit as to the number of days on which they can sit. If they show themselves to be experienced and competent, in view of the shortage of experienced judge-power in this area I suggest that that would be very welcome. It would be especially helpful to women with family obligations if they were able to sit for more days per year and help to cure the delays and backlog in the tribunals.
Finally, I turn to legal aid. This gives rise to some difficulties. Experience has shown that there is a problem of inequality of arms between the parties where an employer is legally represented and the employee is unrepresented in the kind of case where legal skill and advocacy really matter. It cannot be left to the chairman of the industrial tribunal to cure the inequality. If cases are now to be heard in industrial tribunals, which I for one greatly welcome, the employee—for it is he who will normally be the person without adequate legal means to defend himself or to prosecute his claim— should be eligible for legal aid in exactly the same way as for a claim that could have been heard in the county court or the High Court.
Perhaps I may give an example of the potential injustice which would otherwise arise. It is the best example I can give. An employer, instead of bringing a claim against an employee in the High Court or county court, chooses, as will now be possible, to bring the claim for breach of contract in the industrial tribunal. In that situation the employee would have been eligible for legal aid in an ordinary civil claim in the High Court in order to defend himself against the allegation of breach of contract. Because legal aid is not available in industrial tribunals he will not now be eligible for legal aid and there will be a gross inequality of arms. He will lose the entitlement to legal aid that he at present

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possesses in ordinary civil litigation. I see no good reason in principle why that should be so and why we should make this category of employees worse off. The only way in which the employee could avoid the injustice would be by seeking to transfer his claim to the civil court. The problem about transfers is at least opaque under the present legal regime.
This is a serious problem because in the grossest form of case it could lead to a real denial of justice. As the Minister will no doubt know or be advised, cases have gone before the European Commission and Court of Human Rights where a denial of legal aid in a complex civil claim involving employment or other matters has been held to be a breach of Article 6 of the European Convention on Human Rights. In the family context the case of Airey v. Ireland is the best known claim.
As a legislature scrutinising draft subordinate legislation we should note that the absence of legal aid in industrial tribunals for this class of claim could be a breach of our international obligations and, as important, lead to real injustice in the individual case. I should therefore be grateful if that point could be looked at, not in any way to cast doubt on the validity of approving the orders but in order to make sure that employees are not worse off through some Treasury-driven ambition to save on legal aid in respect of this small class of cases than they are at present.
Lord Meston: My Lords, perhaps I may also trespass on the time of the House by adding a few points to reinforce those which have already been well made. The extension of the industrial tribunals' jurisdiction is welcome and overdue. Section 131 and its predecessors lingered far too long before being brought into operation. The tribunals themselves want the additional jurisdiction and it should simplify matters for employers, employees and their advisers.
There is often a problem in advising a dismissed employee, who may have a claim worth more than the tribunal's present statutory limit, whether to go to the tribunal or to the court first, or indeed whether to start proceedings in both to avoid missing the stricter time limit governing tribunal cases. Moreover, it is never easy in practice to work out whether and to what extent the awards from the court for wrongful dismissal and the separate awards from the tribunals for unfair dismissal do and do not overlap. This extension order will allow a single point of entry for some cases. But, as noted by a distinguished commentator recently, drawing the borderline between the contractual limit in this order and the unfair dismissal compensatory award could cause fun and games in the future.
The order does not make it mandatory to go to the tribunal rather than to a court. That raises the point of legal aid mentioned by my noble friend. Legal aid is notoriously not available in the industrial tribunal and the tribunal's discretion to award costs is more circumscribed. I certainly hope that people who are eligible for legal aid to proceed in the courts will not automatically have it refused because there is now a remedy before the tribunal.

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Another matter of concern is the £25,000 limit. I do not know whether it is intended to uprate that regularly, as the compensatory and basic awards are uprated. Like my noble friend, I question the need for any such limit. Larger claims are not necessarily more difficult. Conversely, the tribunals can now make substantial unlimited awards in discrimination cases, which are often far more complicated.
Another matter to be considered is that of interest, which again was touched on by my noble friend. Putting the matter a little differently, it seems to me that tribunals should be allowed to award interest as part of the award covering the period prior to the hearing. The courts have that power. The tribunals have it in discrimination cases now, but not otherwise. As I understand it, at present they can only award interest from a point 42 days after the decision has been made. Surely, that should be rectified to equate the remedy in the tribunals with that in the courts. I also question why the employer's right to issue a counter-claim depends, under Article 4(d) of the order, on the existence of the employee's claim under the order. Why should not the employer be able to counter-claim in the tribunal if the employee chooses only to make a statutory claim for unfair dismissal?
Article 9 deals with the effect of death and bankruptcy. This is probably stating the obvious. When an employer tells you that you are no longer wanted and then tells you later that you have been overworking and closes you down altogether, a personal representative can always continue your contractual claim. Likewise a trustee in bankruptcy can continue a contractual claim. As things stand I do not believe that a tribunal could prevent them. Nevertheless, if Article 9 of the order makes that clear beyond any doubt, then I suppose it has value to that limited effect.
I conclude with a plea for the industrial tribunals to have adequate resources in the face of the extension of their jurisdiction. It is not so long ago that they faced such a severe budgeting crisis halfway through a financial year that there was a very severe problem which led to questions in your Lordships' House, as I recall. The tribunals' jurisdiction has been growing rapidly with almost annual domestic employment Acts and also with the impact of European law which has affected industrial tribunals directly far more than any other part of our legal system. Given the increasing complexity and volume of the caseload, it is no good pretending any longer that tribunals can invariably be seen as a straightforward place to deal with straightforward law. At the moment they are having to blocklist large numbers of Ministry of Defence pregnancy dismissal cases and they are bracing themselves for the introduction of claims by part-time employees. If the jurisdiction is to be extended as this order proposes, but without resources, there will be a further crisis. There will be increasing delay and remedies such as reinstatement and re-engagement will become almost meaningless. With those reservations I welcome the order.
Lord Henley: My Lords, I welcome the fairly general welcome which the orders have received. I agree

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with the noble Lord, Lord Lester, that industrial tribunals have been a considerable success over the years. I can only hope that neither the noble Lord, Lord Lester, nor the noble Lord, Lord Meston, has lost any business as a result.
Perhaps I may start by dealing with some of the points which have been raised. I shall deal first with the limit which has been set at £25,000 and which the noble Lord, Lord Lester, considers to be inadequate. I believe that the noble Baroness, Lady Turner, also expressed some doubts about it. Obviously, that is something which is not fixed in stone in perpetuity. Like all such figures it is something which will be kept under review by my right honourable friend. It seems to me a fairly reasonable figure. I understand that it is the guideline figure below which civil claims are normally tried in the county court rather than in the High Court. I appreciate that the actual limit is £50,000, but I understand that the guidance suggests somewhere about £25,000. It is also similar to the combined maximum basic additional and compensatory awards available in unfair dismissal cases which amount to a maximum sum of £22,480. Therefore, it is broadly in line with much of what happens already.
The noble Lord, Lord Lester, asked whether it would apply separately both to the claim and counter-claim. I can give an assurance—I sincerely hope that we have drafted it so as to meet the assurance—that our intention is that the £25,000 limit should apply separately to the claim or a number of claims arising from the same contract and also to the counter-claim. We believe that the order achieves that. If the noble Lord advises me that it does not, obviously that is something we would have to look at in due course.
Some concern was expressed about the possible impact on the tribunals themselves of this new and extra work. There has been some criticism, notably last Monday, about the resourcing of industrial tribunals, if I can use that word. On Monday night I answered in some detail exactly what we have done to reduce delays and referred to the number of extra full-time chairmen and administrative staff and how we have expanded premises. It is not necessary now for me to repeat all that I said on that occasion other than to say that I can give an assurance to the noble Lord, Lord Lester, that already many part-time chairmen sit. We are obviously very keen to make use of their expertise. It is obviously difficult to estimate the number of cases which will be brought under this new jurisdiction.
Lord Lester of Herne Hill: My Lords, I am most grateful to the noble Lord for giving way. Before leaving the question of part-time chairmen, I believe I am right in saying that they can sit for a maximum of 70 days only in a year. That seems to me an unnecessary restriction. I was suggesting that that might be looked at in order to make better use of the most expert and experienced of the part-timers.
Lord Henley: My Lords, perhaps I may check the figures which I have in front of me. The noble Lord is right. Originally, part-time chairmen could sit only for 50 days. As the noble Lord put it, that has been increased to 70 days and to 100 days for those who have

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retired from practice. Both figures have gone up to some extent. I take note of what the noble Lord said but having just increased those figures we have no current plans to increase them again. It is a matter we shall keep under review. It could have a positive effect. One begins to wonder at what point someone ceases to be a part-time chairman once one increases the number of days beyond 100 or whatever. We take note of what the noble Lord said.
It is difficult to estimate exactly the number of cases which will be brought under the new jurisdiction, but we shall monitor the operation of it and determine its impact. If it is necessary for more resources to be put in or for changes to be made such as those suggested by the noble Lord, we will consider them.
The noble Baroness also referred to the time limit of three months being too short. I say to her that it is the normal time limit for making a complaint to an industrial tribunal, including under the Wages Act, which may cover similar claims, and also for unfair dismissal claims where, along with other claims, ACAS successfully assists in conciliation in up to two-thirds of the cases. I can give an assurance to the noble Baroness that the tribunals have a discretion to increase that three-month period where it is not reasonably practical to claim within that time. There is a discretion that they can make use of.
The noble Lord, Lord Lester, asked about the transfer of complicated cases to the High Court. Again, I can give the noble Lord an assurance that we shall always look at whether there are better ways of dealing with claims. I can give an assurance that my honourable friend the Parliamentary Under-Secretary in the Department of Employment has announced a review of tribunals. I believe that the limit of £25,000 to some extent ensures that those cases involving high costs, which often, despite what the noble Lord, Lord Lester, said, relate to the more complicated cases, will remain with the civil courts.
As I think I made clear in opening the debate, the jurisdiction is concurrent with the civil courts and it will be entirely a matter for the applicant to decide in which forum to bring the action. Therefore, those who wish to apply for legal aid can obviously continue to pursue their cases through the civil courts. As I think the noble Lord will know, industrial tribunals were set up to provide a far speedier and more informal means for settling employment disputes than the civil courts. The procedures have always been designed with that in mind. I do not believe that legal representation is necessary from my brief experience of those courts, and I have to say that legal aid will continue not to be available.
I do not accept the argument of the noble Lord, Lord Lester, that we are likely to be in breach of our international obligations. I believe the noble Lord was trying to argue that there would be an imbalance between the employer who might make use of lawyers and the employee who did not. As the noble Lord will know, employers cannot institute a complaint in the industrial tribunal unless the employee has already made a Section 131 claim to the tribunals. Therefore, it

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is for the employee to decide whether to institute such a claim in the courts with legal aid if he thinks it appropriate, or in the tribunals, taking advantage of the simpler and less legalistic system. Therefore, I do not think that it is fair to argue that there is not a level playing field between them.
Lastly, the noble Lord, Lord Meston, asked why the employer was not allowed to counter-claim when the employee claims arrears of wages under the Wages Act. In these orders, we are allowing for employers to counter-claim when employees make a claim under the new contractual jurisdiction. To allow counter-claims more generally when the employee's complaint is under the Wages Act or some other employment protection provision would be another matter and a major departure from the current position. There has been no pressure for such a change from either the employers or their representative organisations. In our view, it would not therefore be justified.
I hope that I have answered most of the points that have been put to me. I hope also that, with the general welcome that has been given to these two orders, the House will see fit to give them its approval tonight.
On Question, Motion agreed to.

Industrial Tribunals Extension of Jurisdiction (Scotland) Order 1994
7.42 p.m.
Lord Henley: My Lords, I beg to move.
Moved, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee).—(Lord Henley.)
On Question, Motion agreed to.

Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations 1994
7.43 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe)The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe) rose to move, That the draft regulations laid before the House on 14th June be approved [22nd Report from the Joint Committee].
The noble Earl said:My Lords, I beg to move that the draft Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations 1994, which were laid before the House on 14th June be approved. The regulations are made in exercise of the powers in both Sections 2(2) of the European Communities Act 1972 and Section 16(2) of the Food and Environment Protection Act 1985. They implement both national proposals outlined in the Third Consultative Document on Pesticide Residues which was issued in 1991 and three European Community Directives: Directive 90/642/EEC, which establishes a framework by listing certain products of plant origin, such as hops, oilseeds and tea, and fruit and vegetables for which maximum residue levels (MRLs) will be set separately in stages;

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Directive 93/58/EEC, which establishes the first stage of MRLs for the products of plant origin, including fruit and vegetables; and Directive 93/57/EEC which sets additional MRLs for cereals and products of animal origin. The new regulations will supersede the existing Pesticides (Maximum Residue Levels in Food) Regulations 1988. All of the new MRLs have been subject to extensive consultation with interested parties.
The regulations are designed to achieve three objectives. First, MRLs are designed to reflect the maximum residue which will occur if pesticides are used correctly, in accordance with good agricultural practice, and thus provide a check that farmers and growers are using pesticides in accordance with their instructions for uses. Secondly, they are intended to provide consumers with the reassurance that levels of pesticide residues in food are safe and are the lowest levels compatible with efficient food production. Thirdly, the MRLs set by the European Community will harmonise MRLs and thus facilitate intra-Community trade.
I would like to expand on these three objectives a little further. Good agricultural practice in the use of a pesticide is essentially the observance of the conditions of use set out on the label of the pesticide product. This reflects the terms on which use of the pesticide has been approved by Ministers in six government departments, such as the crop on which the pesticide may be used, the maximum number of applications and the interval between the last treatment and harvest. Good agricultural practice is intended to ensure that any residues which are left are not only safe, but are as low as possible. Statutory controls governing the use of pesticides were introduced in 1986 and the controls introduced on MRLs in food in 1988 provided an additional control to ensure that pesticides are neither misused nor over-used. The new regulations include additional pesticides and new food commodities. Crops for use as animal feeding stuffs are covered for the first time. If pesticide users follow the instructions on the labels of pesticide products, they should have no difficulty in complying with the maximum limits set out in the regulations. Residues should not be found above the MRL if the pesticide has been used correctly.
The regulations apply equally to home-produced and imported food. Food which contains residues which exceed MRLs can be seized or disposed of. Imports from outside the Community can be returned to the country of origin. Government surveillance will continue to be carried out by the Working Party on Pesticide Residues to check that samples of food comply with MRLs.
The safety of food for consumers is always of paramount importance. The regulations set MRLs which are in all cases acceptable to the experts who help us to run our regulatory system for pesticides, both within the Department of Health and the Ministry of Agriculture, Fisheries and Food, and on the independent Advisory Committee on Pesticides. But I must emphasise that the limits are not themselves safety standards. In many cases, even if the crop in question contained residues at the level of the MRL, intakes of pesticides would still be well below the safety levels.

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This is because of the high safety margins which our approval system requires in all cases. If a chemical is found to be effective at a low application rate, we would not approve a higher rate even if there were no concern in safety terms. This reflects the Government's policy that pesticide usage should be the minimum consistent with efficient food production.
I also mentioned the part that the regulations will play in harmonising Community arrangements for pesticides. Many member states, including the United Kingdom, have existing national MRLs for a range of pesticides. The Community directives, implemented by the regulations, begin the process of harmonising these limits and hence promoting the completion of a single market for properly treated produce.
The regulations will extend considerably the scope of the statutory MRLs which were introduced in 1988 both in terms of the pesticides and food commodities covered. The number of pesticides covered will increase from 61 to 87 and the number of foods will increase from 40 to over 150. The foods covered include cereals, meat, milk, eggs, hops, tea, oilseeds and a very wide range of fruit and vegetables. It will be necessary to amend the regulations on a regular basis in the future in order to take account of the continuing harmonisation of MRLs within the Community.
Turning now briefly to the detail of the regulations, I should first of all explain that although the title of the regulations implies that they cover "crops, food and feeding stuffs", they do not cover feeding stuffs as such. There are separate controls covering pesticides and other contaminants in animal feeding stuffs—the Feeding Stuffs Regulations 1991. However these regulations do apply to crops and food when intended for either human or animal consumption. The intention is to prevent food which contains residues in excess of an MRL from being diverted to animal feed.
Within the body of the regulations themselves a slightly different approach has been taken which distinguishes those MRLs set on a national basis and those which have been fixed by the Community. The national limits are shown in Part 1 of Schedule 2 and the Community limits are shown in Part 2 of Schedule 2. National limits are being implemented by means of the Food and Environment Protection Act 1985. Part III of which concerns pesticides, and the Community limits are being implemented by means of the European Communities Act 1972. The EC directives which fix MRLs require that food shall not be put into circulation with a residue greater than the maximum permitted level, while the Food and Environment Protection Act 1985 requires that no level of residue may be left greater than the maximum permitted level.
Although these regulations are being made under two pieces of primary legislation, as I have just outlined, the penalties for exceeding either a national or Community MRL will be similar. There will be fines of up to £5,003 on summary conviction and unlimited fines on indictment.
Responsibility for enforcing the regulations will rest with agriculture Ministers. One of the purposes of the surveillance carried out by the Government's Working Party on Pesticide Residues has been to check

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compliance with the statutory MRLs first introduced in 1988. The surveillance is targeted at areas where residues are most likely to be found. The full results of the surveillance programme are published each year and results in recent years have shown that two-thirds of food does not contain detectable residues. Overall, residues above MRLs are found in 1 per cent. of samples analysed. Where it is clear that breaches of the regulations are occurring in a number of cases in a particular food commodity, a campaign to enforce the regulations can be mounted. That involves Ministers designating as enforcement officers individuals, such as departmental staff, local authority or port health authority officers. Their job would be to collect samples for analysis at a government laboratory. The intention is to target a particular food commodity and to obtain samples which could then be traced to the individual grower if the results showed that an MRL had been exceeded. Growers could then be prosecuted for the breach of a statutory MRL and the food could be seized and destroyed. Where action is taken with imported food, the consignment can be held while residue analysis is carried out and if an MRL is found to have been exceeded, the consignment can be refused entry.
Not all pesticides leave detectable residues and many that are present just after application do not persist. Since 1988 we have had a framework of controls on pesticide residues in food within which farmers know that they can operate freely, although in accordance with good agricultural practice traders can buy and sell and the consumer can purchase food in the knowledge that produce meets stringent controls on residues. These regulations represent a further step to harmonise controls on pesticide residues within the Community and to achieve a single European market. I commend the instrument to your Lordships.
Moved, That the draft regulations laid before the House on 24th May be approved [22nd Report from the Joint Committee].—(Earl Howe.)
Viscount Addison: My Lords, I wish to draw your Lordships' attention to what I feel may be a major omission in the draft agriculture pesticides regulations. I hear what my noble friend the Minister said in explaining the regulations, but the omission relates to the maximum levels of pesticide residues which may be left in crops, a very broad spectrum of foods, and feeding stuffs for human consumption. However, in much of Schedule 2, Part I and Part II, many foods and products of foods are left completely blank; in other words, no maximum residue level has been set. Those include some tree nuts such as almonds and Brazil nuts; miscellaneous fruits such as dates and figs; brassicas such as kale and broccoli; leafy vegetables such as spinach, celery and watercress; and oil seeds such as linseed, peanuts, sunflower seeds, soya beans, mustard seed, and others. Even products of animal origin such as meat, milk and dairy products have some omissions.
Perhaps I may give the example of bananas. They come under miscellaneous fruit. One might be staggered to know that in a kilogram of bananas 0.05 milligrams of aldrin and dieldrin, 20 milligrams of inorganic

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bromide, and 0.05 milligrams of paraquat might be found. I am assured that those levels are considered safe for human consumption. If higher levels of those and certain other pesticide chemicals are found in that kilogram of bananas then, as my noble friend the Minister said, an offence has been committed and penalties for contravention are administered. My point is that many products have no upper limit whatsoever set down. So does that mean that the sky is the limit?
My noble friend the Minister told us that over a further period of time more limits will be introduced, but I have to say that there are many gaps remaining from the 1988 pesticides regulations. Will my noble friend push for a threshold level to be put on all products that remain without a set maximum limit? That would prevent the risk of over-the-limit food imports or homegrown produce reaching the marketplace, as at the moment the regulation neither protects the public fully nor provides for a definite penalty against the offender. I am concerned that it appears to be more of a guide to what one can get away with than a regulation.
Lord Carter: My Lords, the House will be grateful to the Minister for, as always, giving such a lucid explanation of these complicated regulations. I was struck by the interesting observations of the noble Viscount, Lord Addison. I am not sure whether the Minister is aware that he is outnumbered two to one this evening by former students of Writtle Agricultural College.
As I understand it, the regulations are a general updating, tightening up and bringing into line with European directives. As the Minister said, they combine good agricultural practice and a reassurance for consumers. For those reasons, of course, we have no objection from these Benches. I believe that the point raised by the noble Viscount was responded to by the ministry to the Joint Committee on Statutory Instruments, but I must say that I found the response and the reasons for the gaps in Schedule 2 hard to understand, and so I shall be interested to hear the Minister's response to that point.
If I am correct in assuming that the regulations increase consumer safety, where the figures are quoted, then obviously they are to be welcomed. I have only three brief observations. The first relates not to the regulations but to the interesting comment made by the Joint Committee on Statutory Instruments about the signature on the regulations of a Minister from the Department of Health. The point made by the joint committee was reasonable—that just because a department approves a policy that does not constitute a reason for signing a regulation. It is the first time I have seen that criticism of a regulation. I did not find the department's response particularly convincing.
My second observation is a general one. It concerns the multiplicity of crop chemicals which are now available. The days are long gone when a farmer could obtain a decent two tonnes of wheat to the acre with some fertilisers in the seed bed, one squirt of MCPA in the spring, and a top dressing of nitrogen. Then one shut

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the gate and waited to harvest. That extra tonne to the acre for which we all look and expect now requires a pretty good range of chemicals to help achieve it.
The third point is one of interest. I was struck by the fact that, in the case of milk, on page 55 of the regulations the footnote states that the levels for the MRL are for fresh, raw cow's milk and fresh, whole cream cow's milk expressed on the whole milk. I wonder what would be the effect on skimmed and semi- skimmed milk which now forms a high proportion of total milk sales. I am not a chemist, but I imagine that the amount of residue may differ, as it were, in the cream and the rest of the milk. I wonder how the calculations will be done for skimmed and semi-skimmed milk. Is it a straightforward arithmetical calculation from the tables or is some other factor involved?
With those general observations, I repeat that we on these Benches welcome the regulations. I thank the Minister for explaining them so clearly.
8 p.m.
Earl Howe: My Lords, I am grateful to my noble friend Lord Addison and to the noble Lord, Lord Carter. My noble friend was concerned that MRLs have not been set for all the pesticide/product combinations in Schedule 2. It is indeed the case that there are still some pesticide/product combinations for which MRLs have not yet been set. In such cases there will be a "blank" in both Part 1 and Part 2 of Schedule 2. However, the European Commission's objective is to set an MRL for all the pesticide/product combinations in Schedule 2. Many of the blanks that appear at present arise because the positions have been left "open" to allow experimental data to be generated by agrochemical companies or growers.
Maximum residue levels are set on the basis of crop trials in order to establish the residue levels that occur under approved conditions of use. To obtain representative data, a series of trials conducted under a variety of conditions is required. Companies have been allowed up to four years to generate this data.
As soon as the data is available MRLs will be set. In the meantime, we are able to rely on other powers, including powers in the Food Safety Act, if any health concern over excess residues arises.
My noble friend asked whether there was a case for inserting a threshold MRL in those open positions. As I explained, MRLs can be determined only on the basis of data from properly conducted crop trials. Without such data, a reliable MRL cannot be set. The blanks mean that no level has been set but that does not mean that action would never need to be taken. The chances of excessive residues occurring in any one instance are small, but if they do occur we can use powers to cope with that situation.
The noble Lord, Lord Carter, raised several points and I wish to cover two of them. I shall deal, first, with the comment by the joint committee as regards the signatures. I am aware of the anxiety expressed by the joint committee. In drafting the statutory instrument we were guided largely by precedent. The 1988 regulations, which are replaced by the regulations under discussion,

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were signed by the Secretary of State for Health and by territorial Secretaries of State. This has also been the practice with other legislation on pesticides. It was considered desirable that the Health Secretary should sign the regulations because they relate to issues of consumer safety and consumer protection, which fall within her responsibility. However, while our current view is that we should maintain that practice, we will look again at the issue in relation to future legislation. Obviously, it is a matter about which the joint committee is anxious.
The noble Lord, Lord Carter, also asked about the MRLs for milk, in particular skimmed or low fat milk. MRLs for milk are set on the basis of the raw milk product but they are then adjusted as appropriate depending on the fat content of the milk, which is referred to in the footnote to Schedule 2. I do not have in front of me the precise table of calculations which would enable me to give a more precise answer, but I hope that the noble Lord will take it on trust that these matters are worked out with all due care.
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.4 to 8.10 p.m.]

Criminal Justice and Public Order Bill
Further consideration of amendments on Report resumed.
The Earl of Longford The Earl of Longford moved Amendment No. 86:
After Clause 44, insert the following new clause:
( "Penalty for murder
. No court shall be required to sentence a person convicted of murder to imprisonment for life.").
The noble Earl said: My Lords, I rise to move an amendment which would mean that, when someone is convicted of murder, he is not necessarily sentenced to life imprisonment. I moved the same amendment in Committee and I postponed discussion on it until Report stage, when I was hoping for a larger attendance. It can hardly be said that that has been secured this evening.
Lord Graham of Edmonton: Quality, quality!
The Earl of Longford: My Lords, quality is what counts. I should say straight away that I shall divide the House on this subject because, in conscience, I am completely committed to the idea that this is an important issue of principle and it cannot be avoided by someone telling me that the House is very thin at 10 past eight in the evening. Therefore, we can rely on a vote of some kind.
If the House of Lords was ever said to be committed to any proposition, it is committed to this one. Quite a few years ago, a very high powered Select: Committee of the House under the chairmanship of the noble Lord, Lord Nathan, expressed itself to be in favour of the provisions of this amendment. Later, the House, by a large majority, voted in favour of the proposition. At that time, two Lord Chancellors, including the noble and

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learned Lord, Lord Hailsham, supported the proposal, as did the Lord Chief Justice, the Master of the Rolls and five Law Lords. Therefore, all those most exalted in the legal profession were in favour of the proposal.
And then, only last year, the noble Lord, Lord Ashley, introduced a Bill which was accepted by the House without a Division. That is only a little more than a year ago.
Even more recently than that, at the end of last year, a committee of exceptional strength led by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, and which included the noble Lord, Lord Windlesham, whose knowledge of these matters is equalled by few, if any, reported again in favour of an amendment of this kind.
I should say in passing that I am extremely sorry to hear that the noble and learned Lord, Lord Lane, has been seriously ill since that time. Were it not for that, he might well have been there this evening to make his views plain.
Now, a year later, what do we find? We find that the Lord Chief Justice, the noble and learned Lord, Lord Taylor, has come out strongly in favour of this proposal. In an interview in The Times, he made his views abundantly plain. When I read that interview in The Times, I approached the noble and learned Lord, Lord Taylor, to discover whether he would rather move the amendment. It appeared from his office that he did not intend to move an amendment. I wrote to the noble and learned Lord, Lord Taylor, to ask him whether he would speak in favour of the amendment. He said that he would do so if he were present, but if he were not present, he would like me to make it plain that he is in favour of the amendment, as one would expect in view of his interview in The Times.
If ever the House can be committed to anything, it is committed to this. I shall not spend time discussing the arguments for and against the amendment. They have been rehearsed often in this House over the years. They have been summed up by the noble and learned Lord, Lord Taylor, and others who have said that it is quite wrong that the same penalty should be exacted in the case of very different crimes. Of course, a great deal more can be said on the subject.
Since the last debate, I have been in contact with another kind of situation arising out of life imprisonment; that is, the question of recall. I have tabled an amendment on that subject which we shall discuss later. I should say in passing that, when a life prisoner emerges from prison, he is on licence and that is not quite the same as being on parole. It was brought home to me only recently how different it can be. In effect, if you are released on licence after a life sentence, even having served relatively few years, you are paying a penalty for life whether or not you are incarcerated. You are treated, in effect—and I shall deal later with that case on another amendment—in all future discussions as guilty until you are proved innocent. That is an additional argument.

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But my main argument is that the House of Lords has committed itself time and again to this proposition and I hope that your Lordships will vote in favour of it. I beg to move.
8.15 p.m.
Baroness Platt of Writtle: My Lords, I rise to oppose the amendment. At the time of the Select Committee on Murder and Life Imprisonment, of which I was a member, I felt deeply, although I agree that I was the only member so to do, that the mandatory life sentence for murder should be retained. Since then, I have been thankful that successive Home Secretaries have maintained that position.
I believe that if its mandatory nature were removed, it would give quite the wrong message to the public as a whole at a time when violent crime is, sadly, still far too prevalent. As the Crown Prosecution Service said at the time of our report, public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary.
As our report also said at paragraph 109A:
"The distinction between murder and manslaughter…becomes meaningless if there is no difference in the sentencing powers available to the court; and the mandatory sentence is the only way of making such a distinction".
As the National Association of Senior Probation Officers said in favour of its retention:
"the penalty for murder expresses the value society places on life".
A life sentence does not normally mean imprison-ment for life. However, it means that, after due consideration by those responsible, the murderer's release is only on licence and he may be recalled at any time if he breaches the conditions of his licence or his behaviour indicates that he may be at risk of committing a further violent offence.
Murderers have demonstrated that they are capable of murder once. As one reads the newspapers, one learns that violent people repeat their crimes, as was confirmed in our report at paragraph 111A. I should put the protection of society as my first priority and I hope that your Lordships will not agree to the amendment.
Lord Wigoder: My Lords, I apologise for having missed the first few words of the noble Earl's observations.
On these Benches, we have repeatedly expressed our support for the principle put forward by the noble Earl, Lord Longford, and, for the sake of the record, we wish to do so again this evening.
Lord McIntosh of Haringey: My Lords, I can only echo the words of the noble Lord, Lord Wigoder. I do not know whether it is a party political issue or whether there is a Whip involved. However, I do know that my noble friend Lord Longford is entirely right to say that the House of Lords has repeatedly expressed its view that there should not be a mandatory life sentence for murder. I have to confess that my personal views approximate more closely to those of the noble Baroness, Lady Platt. But it is not my place to say so from this Dispatch Box.
My noble friend has not sought to rehearse the arguments, and in some ways we are grateful to him for

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that. But the question that he must consider is whether he will advance his cause by putting the matter to a Division when he knows as well as I do that he will be opposed by the payroll vote. However, if he believes that that is to his advantage, he must—as, indeed, he always does—do what his conscious dictates. Nevertheless, I wonder whether it would be the correct course of action for him to take.
Earl Ferrers: My Lords, I have no doubt that the noble Earl will ponder the wisdom of the remarks of the noble Lord, Lord McIntosh. The noble Lord, Lord Wigoder, said that he was sorry that he was not present in the Chamber to hear the opening remarks of the noble Earl, Lord Longford. Perhaps I may repeat those remarks. The noble Earl said that what he seeks to do is to ensure that a person who has committed murder should not have a sentence for life—
The Earl of Longford: No, my Lords; I must correct that statement. I said that a life sentence should not necessarily be imposed. The noble Earl must know that that was what I meant to say. If I used a faulty expression, surely he would have understood it; indeed, he has done the same himself before now. No one could suppose that I thought that it would be the ending of the life sentence; indeed, no one could possibly think so.
Lord McIntosh of Haringey: My Lords, if I may say so, the amendment is perfectly clear. It says:
"No court shall be required".
Earl Ferrers: My Lords, not for the first time I apologise to the noble Earl if I have taken down his words incorrectly. However, he has now explained what he said and no doubt the noble Lord, Lord Wigoder, is now in the happy position of knowing what the noble Earl said even though he was not present in the Chamber to hear it.
Lord Wigoder: My Lords, I believed myself capable of anticipating what the noble Earl said with some accuracy.
Earl Ferrers: My Lords, perhaps the noble Lord's anticipation was more accurate than mine. I tried to record what the noble Earl said, but evidently I misrecorded his remarks.
We are discussing a subject which has been raised many times in the House in recent months. It has also been the subject of two inquiries by eminent committees: the House of Lords Select Committee on Murder and Life Imprisonment chaired by the noble Lord, Lord Nathan; and, more recently, the Committee on Penalty for Homicide chaired by the noble and learned Lord, Lord Lane. The arguments were carefully and cogently put.
The Government regard this as a deeply important issue and we recognise that strong views are held on both sides. We take those views very seriously, including the arguments of those who believe that the mandatory life sentence should be abolished. Your Lordships will not be surprised that the Government's position remains unchanged. We continue to think that it is right to retain the mandatory life sentence in order

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to mark the unique nature of the offence of murder and to provide in the case of murderers the particular safeguards afforded by the mandatory life sentence.
My noble friend Lady Plait was right. She had the wisdom, the rectitude and the courage to make a minority report when she served on the Nathan Committee. I shall add only that murder is unique in that it involves the deprivation of another person's life, even though there may only have been intent to cause grievous bodily harm. That inevitably sets murder apart from other offences, and it means that the way in which we respond to it has particular significance for public confidence in the criminal justice system as a whole.
Public concern about murder has not noticeably ebbed since capital punishment was abolished in 1965. Indeed, I suggest that quite the reverse is the case. So concerned are people about crime that many would willingly see the return of capital punishment. What the public will not understand—
The Earl of Longford: My Lords, is the Minister in favour of the return of capital punishment?
Earl Ferrers: My Lords, if the noble Earl is asking me a personal question, the answer is yes.
As I was saying, what the public will not understand is not having capital punishment, and now, if the noble Earl were to have his way, not having a life sentence for murder. After all—
The Earl of Longford: My Lords, that is not true. I do not know where the noble Earl got that from. He knows perfectly well that I am not trying to abolish life imprisonment altogether. I said that it should not necessarily apply in every the case. If the noble Earl reads the amendment, he will see what I am talking about.
Earl Ferrers: My Lords, we are having quite some difficulty in the matter. We are not in Committee. I have been trying to make a speech and I have been interrupted five times thus far. I am not trying to misrepresent the noble Earl. All I was trying to tell him was that when capital punishment was abolished a mandatory life sentence was put in its place. People were led to believe that, although capital punishment may have gone, in future a person who committed murder would in any case receive a life sentence. The point that I was trying to make is that people would simply not understand what Parliament was doing if the latter were also to be removed. People would think that it was not right for Parliament now to abolish the mandatory life sentence.
I know that the noble Earl feels strongly about the matter. I understand his feelings. However, I must remind him that, whatever his feelings—which I respect —the Government do not feel that now is the right time to remove the mandatory life sentence for murder.
The Earl of Longford: My Lords, I have much respect for the feelings of the noble Earl and certainly for his parliamentary skill. But he comes before us now in support of capital punishment. He must be aware that the House of Commons has repeatedly voted; against it by a very large majority. Therefore, in no sense could his remarks be said to be an expression of the will of the

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people. Indeed, if the noble Earl read the Sun new spaper —and I read it every day—he would realise that press reports state that Mr. Howard is about to get the chop. His policies have not worked out and they are not at all popular with the public. I am sorry for Mr. Howard, but no doubt he will be able to find another sphere of usefulness. However, as I said, according to the popular press he is in line for the chop.
Let us now try to take a broad view of the matter. One either believes that the judiciary in this House has been repeatedly right or that the noble Earl who supports capital punishment is right. Naturally the noble Earl is against the amendment, as, indeed, is Mr. Howard. However, there is no foundation for saying that the country is against it. That may or may not be true. No one knows the position of the country on the amendment; indeed, it has never been put to the people. Therefore, I wish to press the amendment to a Division.
8.27 p.m.
On Question, Whether the said amendment (No. 86) shall be agreed to?
Their Lordships divided: Contents, 5; Not-Contents, 77.

Division No.2

CONTENTS

Gisborough, L.

Howell, L.

Graham of Edmonton, L.

Longford, E. [Teller.]

[Teller.]

Pitt of Hampstead, L.

NOT-CONTENTS

Addison, V.

Howe, E.

Annaly, L.

Jenkin of Roding, L.

Archer of Weston-Super-Mare, L.

Kimball, L.

Arran, E.

Knutsford, V.

Astor of Hever, L

Leigh, L.

Astor, V.

Lindsey and Abingdon, E.

Balfour, E.

Long, V.

Barber, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Lyell, L.

Belstead, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mackintosh of Halifax, V.

Boardman, L.

Mancroft, L.

Brabazon of Tara, L.

Massereene and Ferrard, V.

Brougham and Vaux, L.

Miller of Hendon, B.

Burnham, L.

Moyne, L.

Burton, L.

Newall, L.

Cadman, L.

Oxfuird, V.

Caithness, E.

Peel, E.

Camock, L.

Platt of Writtle, B.

Chalker of Wallasey, B.

Rankeillour, L.

Colwyn, L.

Reay, L.

Cork and Orrery, E.

Renton, L.

Craigavon, V.

Rodger of Earlsferry, L.

Cranborne, V.

Skelmersdale, L.

Crathorne, L.

St. Davids, V.

Cumberlege, B.

Stanley of Alderley, L.

Denton of Wakefield, B.

Stockton, E.

Dixon-Smith, L.

Strange, B.

Downshire, M.

Strathclyde, L.

Elton, L.

Strathmore and Kinghorne, E.

Ferrers, E.

[Teller.]

Fraser of Carmyllie, L.

Torrington, V.

Geddes, L.

Trumpington, B.

Glenarthur, L.

Ullswater, V. [Teller.]

Goschen, V.

Vaux of Harrowden, L.

Harding of Petherton, L.

Vivian, L.

Hayhoe, L.

Wakeham, L. [lord Privy Seal.]

Henley, L.

Wise, L.

HolmPatrick, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.35 p.m.
The Earl of Longford The Earl of Longford moved Amendment No. 87:
After Clause 44, insert the following new clause:
("Rights of life sentence prisoners to review of sentence

.—(1) All prisoners sentenced to imprisonment for life, other than juveniles and under-14 year olds, shall have the right to have their sentence reviewed by a court when they have served 15 years in prison, unless they have already been released on licence.

(2) The rights conferred on adult life sentence prisoners by subsection (1) above shall apply to—

(a) all juveniles convicted of murder, after 10 years; and

(b) all under-14 year olds when they reach the age of 18.").

The noble Earl said: My Lords, I am opening up a new subject here. It will be a relief to noble Lords who feel the strain of going through the Division Lobbies to know that it is unlikely—although I will press it hard —that I will take this amendment to a Division. However, for a long time it has been in my mind, and the minds of many other people, that life prisoners may be stuck in prison for years and years—indeed, one might say for ever—without ever getting a fair trial of any kind.
I shall refer to one case and one case only. As I have said on an earlier occasion, I am in touch with many life prisoners, or half a dozen actively at the moment. I refer to the case of a woman who has been in prison 28 years. She was convicted—rightly, undoubtedly—of being an accomplice in horrifying murders many years ago. She was an infatuated accomplice of a man who for a good many years has been in a special hospital. At any rate there she was—rightly, if you like—incarcerated in prison. She has been there for 28 years.
I submit that none of us fallible, and indeed sinful human beings, has any right to keep any fellow human being in prison for 28 years with no immediate prospect of coming out unless there is some danger to the public. We heard in an earlier debate that the public should come first. But what public interest is served by keeping this woman in prison? No one thinks she is dangerous. Years ago the then chairman of the Parole Board told me in writing that she was not dangerous. She has twice been passed as suitable for parole, or licence, by local review committees, and yet she remains in prison.
People say to me, "Oh, I do not think any Home Secretary would ever have the guts to let her out of prison. Think of the tabloids—think of what the Sun would say". People say that it is widely surmised that it would be too dangerous and too frightening for any Home Secretary to let her out. Is that justice? Is it Christian, humanist or any sort of justice? What is this matter left to at the present time? It is left to political expediency and to the question of whether the Home Secretary of the day has the courage to face the tabloids. That is where it is left at the moment. No one really disputes the fact that that is where it is left. I say that that is all wrong.
One cannot deal with that matter easily. It is not a simple problem. After a certain number of years, in my opinion, any life prisoner should be allowed to come into the open, appear before a court and be represented. Who knows what would happen? The court might decide that the person, who may be a terrorist, should

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stay in prison. But at least that would be a judicial decision independent of political expediency. It would provide a less dishonourable situation than the one we have now. I think the present situation is a disgrace to humanity. I beg to move.
Lord McIntosh of Haringey: My Lords, I would like not only to pay tribute to my noble friend for his persistence in this matter but also to express my total agreement with his argument on this point. It seems quite extraordinary that we are in the position where those who have been sentenced to life imprisonment for murder should depend for their release on the Home Secretary, advised by the Home Office, rather than on a court.
My noble friend proposes a very modest formula under which the matter would be reviewed after 15 years and whereby it may be taken out of the media and political arena to be determined by a court rather than, as at present, the Home Secretary. I am absolutely convinced that he is right.
My noble friend has not said that he is considering taking the opinion of the House on the matter. Perhaps I may say to him in due humility that I think that he would be ill advised to do so after the vote that has just taken place. It might give the impression—which I am sure would be wrong—that the House of Lords, consisting of human beings, rejected the humanitarian plea which my noble friend rightly makes. I would not wish him to seek the opinion of the House, but I am totally convinced that his arguments are just and humane.
Earl Ferrers: My Lords, although I understand his reasons, I find it curious that the noble Lord, Lord McIntosh, should say that the noble Earl is making a humanitarian plea. We are talking about somebody who has committed murder. In the old days he would probably have been subject to capital punishment, but because capital punishment has been done away with he has been committed to life imprisonment. Now the noble Earl says that no human being should have the right to put another human being in prison for 20 or so years.
The Earl of Longford: My Lords, I made the proviso unless it could be claimed that that person was a danger to the public. The noble Earl took down some of my remarks but not all of them. I kept on saying that in this particular case, and many others, it is recognised that there is no danger to the public.
Earl Ferrers: My Lords, I can see that I shall have to undertake a course of shorthand in order to take down the remarks of the noble Earl, Lord Longford. I wrote down his remarks as quickly as I could and I thought that I had taken them down reasonably accurately. If I am wrong I am sorry.
The noble Earl is concerned that nobody should be kept in prison for a long period. The effect of his amendment is that any life sentence prisoner who is still in custody after 15 years should have the right to have his sentence reviewed, not by the Home Secretary but by a court.

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The principal purpose of the amendment is to take responsibility for the release of long-term mandatory life sentence prisoners out of the hands of the Home Secretary and to put it in the hands of the courts. No government would support such a move. One important reason for maintaining the mandatory life sentence for murder is to sustain public confidence. That is in part achieved by the mandatory nature of the penalty, but also by the fact that it is the Home Secretary—who is accountable to Parliament for maintaining public confidence—who takes responsibility for the release of prisoners in these cases.
In our view there are adequate arrangements for reviewing the detention of these lifers, with scope for independent advice to be considered and for representations to be made. In setting the period to be served for retribution and deterrence the Home Secretary takes the advice of the trial judge and the Lord Chief Justice. He can review that period at any time. The prisoner can make representations as to that period at any time. When release is considered the Home Secretary consults the judiciary again and has the benefit of expert advice on risks from the Parole Board.
I do not understand which parts of that process the noble Earl wants the courts to take over after 15 years. Presumably he would like them to take over all of the process. Our view remains that the final decision belongs with the Home Secretary because the Home Secretary is responsible for public safety and public security.
In trying to introduce arrangements to benefit this small group of long-term mandatory lifers the amendment would have some odd effects on the rest of the life sentence system. For instance, courts would find themselves reviewing cases where the prisoner had served the period to be served for retribution and deterrence but where he remained in prison because the Parole Board considered him to be dangerous. The courts would be determining questions of risk. They have never had to do that before. I do not. think that it would be appropriate for them to do so now.
The courts would also have to review the tariff in discretionary life sentence cases. That tariff has been set by a court in the first place. I do not understand why this second look should be taken at the needs of retribution and deterrence or why determinate sentence prisoners, who have been given 20 or 30 years, for example, should also have their sentences reviewed after 15 years.
I know that the noble Earl is aiming at a very small group of prisoners, but in our view the current arrangements provide a much more flexible and less cumbersome means of review than introducing a whole new tier of court hearings for all life sentence: prisoners.
The Home Secretary of the day is responsible for security. It is one thing for the courts to make a judgment on what a person has done. It is another matter for that person to be released back into the community, where the community will be affected. That is not a question which the courts ought to judge. It is a question for the Home Secretary.
8.45 p.m.
The Earl of Longford: My Lords, there cannot be much meeting of minds between myself and the noble Earl in regard to life prisoners. He is in favour of capital punishment. He thinks that these life prisoners are very lucky not to have been executed long ago. I respect him on all other grounds, but on this issue he is very old fashioned.
The noble Earl may not be aware that in Germany there is a rule that after 15 years life sentence prisoners come before the courts. Therefore, the proposal is not impossible.
In the long run the noble Earl will realise that very brutal results follow from his policy. I shall return to the subject in debates over the years, if I am spared. Today I shall withdraw the amendment, making it plain that I regard the case as overwhelming. I am particularly glad to have the support of my acting leader—my noble friend Lord McIntosh—who has had some difficulty with my approach on previous occasions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 88:
After Clause 45, insert the following new clause:
("Video recordings of testimony from child witnesses
. In section 32A of the Criminal Justice Act 1988 at section 32A(S) (b) the word "adequately" shall be inserted after the words "dealt with" ").
The noble Lord said: My Lords, unfortunately my noble friend Lord Williams of Mostyn is not able to be with us but I am happy to move the amendment standing in his name. It is concerned with the tightly defined but important question of the testimony of child witnesses in court and the use of video recordings for child witnesses in court.
I remind the House that the Criminal Justice Act 1991 added Section 32A to the 1988 Act. It provided for the video recording of the evidence of child witnesses. That was done with extremely good intentions and without any party political differences in this House or in another place. However, experience in the courts has led us, and in particular my noble friend Lord Williams of Mostyn—who is much better informed on these matters than I am—to question whether the formulation which was produced in the 1991 Act is adequate to the purpose.
Perhaps I may explain the position. At present under Section 32A the evidence of a child witness may be taken in the form of a video recording. That video recording is available to the court. At present there is no possibility for any evidence-in-chief arising from that evidence which has been given in the form of a video recording to be questioned in the court either by the judge or by counsel representing the party on whose side the evidence is being given. I am sure that I have used wrong phrases, but perhaps noble Lords will understand what I seek to say.
The child has given his evidence in the form of a video recording. So far as concerns the child, he is immediately subject to cross-questioning by counsel for the opposing sides. Having given his evidence in the form of a video recording—it is a humane way of

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dealing with the issue—because it is the opposing counsel who has instructions to cross-question him the child has the idea that the court is opposed to his evidence. Recent experience has indicated that that concept can cause terrible problems.
Mr. Justice Kay wrote yesterday to the Home Secretary on the issue. He made his comments in open court. He has authorised me to refer to the case about which he wrote to the Home Secretary. He has just completed a very long trial in Swansea in which a number of adults were charged with sexual abuse of children. Clearly there were a number of children. They gave their evidence in the form of video recordings. Mr. Justice Kay states:
"Under the Act, since it was not suggested by the prosecution that matters had not been dealt with either adequately or at all in the video, I had no power to allow any questions by the prosecution before this process began.
"The children were thus confronted for days at a time by hostile counsel putting questions to them, as they were obliged to do on their instructions, that almost every word they uttered was untrue. They saw no other person in court and had no opportunity to see that there were others present who did not share the views apparently being expressed in court".
As Mr. Justice Kay makes clear, no one wants to extend the questioning of children in court. However, the point that he argues, as does the NSPCC, which has suggested that the amendment be put to your Lordships, is that there should be the possibility of some friendly questioning on the evidence in chief by counsel on the children's own side before they are subjected immediately to the hostile cross-questioning from the other side. That procedure would give the children who have given evidence on the video the understanding that the court is not entirely stacked against them. Mr. Justice Kay says that in fact some of the children became extremely distressed at this continual question-ing which had not in any way been counteracted by friendly questioning. One of the children in fact refused to go on giving evidence because he said, "No one in court believes anything I say".
Under those circumstances, a modest amount of questioning on the evidence in chief by the judge or by the counsel on the children's own side would, it is suggested, be helpful in the interests of justice. It is clearly an extremely difficult area. It is an area in which everyone concerned seeks to do the best in the interests both of obtaining the right decision from the point of view of justice and of not distressing the children who have to give evidence. I do not suggest that there is any ill will on either side. However, the evidence from the NSPCC, and from one particular judge who has been involved in the matter for a period of nine months, is that it is worth considering the addition of the word "adequately" into Section 32A of the Criminal Justice Act. I am encouraged in that view by the words of the noble and learned Lord the Lord Advocate, when he said that,
"it was the Government's clear view that examination could recur when matters had not been adequately dealt with in the videotape".—[Official Report, 23/5/94; col. 586.]
I hope that the House will agree that the amendment gives effect to the statement of the Lord Advocate and provides some modest improvement of the law in this very difficult matter. I beg to move.
Lord Wigoder: My Lords, for the benefit of those of us whose minds are not quite as sharp now as they were before dinner, will the noble Lord be kind enough to read to us the words of Section 32A(5) (b)?
Lord McIntosh of Haringey: My Lords, I wish that I could. I am sure that the noble and learned Lord the Lord Advocate will be able to do so. I have not been favoured with those words.
Lord Rodger of Earlsferry: My Lords, not unusually, the noble Lord's confidence is misplaced. I shall not be able to give the noble Lord, Lord Wigoder, those words. However, in default of that, perhaps I may paraphrase what I understand to be the purpose.
As the noble Lord, Lord McIntosh, has said, the problem is this. There is in general terms a prohibition, which is stated in the Act, on counsel for the prosecution going over the evidence which has already been given by the child on the video. The question arises as to whether or not the prosecution is entitled to ask questions of the child where a matter has not adequately been dealt with. The problem appears to be that some judges have interpreted the section as it stands in the statute book at present as prohibiting any questioning at all, even if the matter has not been adequately dealt with. If it has been touched on, or dealt with at all, they have said that the prosecution cannot ask any questions. It is to allow the prosecution to ask questions where the matter has not been adequately dealt with that the noble Lord raises the issue.
As the noble Lord said, it is not a party political matter in any sense. When the matter was going through the House in 1991 I believe that my noble friend Lord Ferrers expressed the view on behalf of the Government at the time that indeed the provision meant "adequately dealt with". However, since the matter has been put in doubt by decisions of various judges, and since it is clearly correct that it should be put beyond doubt now, and that questioning should be allowed where the matter has not been adequately dealt with, we are more than happy to accept the amendment moved by the noble Lord, Lord McIntosh, on behalf of the noble Lord, Lord Williams of Mostyn.
I believe that the noble Baroness, Lady Mallalieu, spoke on this matter too, and expressed the view that, broadly speaking, the issue bore out her experience in practice. We are more than happy to accept the amendment.
Lord McIntosh of Haringey: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. He appreciates, as I do, how difficult the matter is and how difficult it is to reach perfection. We have not reached perfection by changing the law in this way. However, I am grateful to him for his acceptance of the argument. I have no doubt that my noble friends who raised the matter previously will be equally grateful.
On Question, amendment agreed to.
[Amendments Nos. 88A and 89 not moved.]
The Earl of Longford The Earl of Longford moved Amendment No. 90:
After Clause 48, insert the following new clause:
("Recall of life prisoners while on licence
. For section 39 of the Criminal Justice Act 1991 there shall be substituted the following section—
Recall of life prisoners while on licence.
"39. — (1) A life prisoner—

(a) who is released on licence under this Part; and

(b) who fails to comply with such conditions as may for the time being be specified in the licence,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a fixed term not exceeding three months.

(2) The magistrates' court by which a person is convicted of an offence under subsection (1) above may, whether or not it passes any other sentence on him, order him to be recalled to prison, notwithstanding the terms of the licence on which he is released.
(3) Before ordering the recall of a prisoner under subsection (2) above the court shall—

(a) consider any representations in respect of the; recall made—

(i) in writing or in person by that prisoner and by any representative of his;

(ii) the Board;

(iii) the Secretary of State; and

(b) inform the prisoner of the reasons for recalling; him to prison.

(4) Any person ordered to be recalled to prison under subsection (2) above shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.".").
The noble Earl said: My Lords, the amendment provides that a life prisoner recalled to prison after release would have the right of early access to a court of law. It may well be that the provision should be drafted differently, but it is the principle that I wish to lay before the House.
I am not surprised that very few people in the House have considered the matter with proper care because I had not myself considered it over the years as carefully as I would now wish to have done. I do not remember raising the issue previously in debate. However, I hope that any aggressiveness that I may have shown to the noble Earl earlier will be forgiven and forgotten and that with his customary good nature he will bring an objective, cool, calm and deliberate mind to bear on the amendment. I do not expect a very positive answer tonight. But this is a matter to which the House must return.
It happens to have come home to me in more than one case recently. I shall mention just one case and everybody will know what I am talking about, as will people who read these remarks. There is a certain prisoner who killed his wife after a row. He spent 13 years in prison. I do not say that that is too long or too short a period, but he spent that period in prison where I visited him on several occasions.
Within a few months of coming out he was back in prison, where he is still. When he came out of prison he became associated with a lady who, I understand, is engaged in social work. He became dissatisfied with her, as perhaps she became dissatisfied with him, and the relationship broke up. He has given me his side of the story, but I have not heard hers. When the relationship broke up she went to the police and accused him of assaulting her. The police interrogated her but did not interrogate him. They interrogated one party but not the other. The probation officer reported the matter to the Home Office. The next thing the man knew was that he was being arrested by police officers. He did not

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even know why he was being arrested. That was in April. It is now July, and unless anything has happened today, he has not yet come before the Parole Board. Even if he does come before the Parole Board he will not be represented. That would not be the situation if he had been a discretionary lifer. But leaving aside that issue, which should be looked at on its own, the fact is that here is someone who will have been in prison, whatever the Parole Board decides, for three months without any access to a court of law or any chance of proving his case to anybody. That cannot be justice.
I do not believe that this is one of those instances that anybody designs. Indeed, when I spoke to the parole authorities about it I believe I am right in saying that they were a little surprised that he had been so long in prison without coming before the Parole Board. That is the situation. Here is a man who, so far as I know, is still in prison tonight. He has been there for three months simply on the say-so of a woman who convinced a probation officer without the man being interrogated. That is grossly unfair. I do not believe that anybody would justify it. I do not believe that anybody designed it or intended that it should happen that way. But that is the way it happened. My amendment is intended to enable a person in that position to come at an early date before a court of law. I beg to move.
9 p.m.
Lord Belstead: My Lords, I wonder if I may say just a very brief word on this matter. I know that the time is late. I declare an interest as chairman of the Parole Board.
The amendment essentially copies Section 38 of the Criminal Justice Act 1991, which provides for magistrates' courts to deal with the recall of short-term prisoners who are released automatically at half their sentence on parole licence. It was thought right in the Criminal Justice Act 1991 that if it looked as though those licences were going wrong, the magistrates' courts should be the place where it should be decided whether short-term prisoners—that is, prisoners serving under four years—should be recalled or whether they should not.
As the noble Earl's Amendment No. 90 deals specifically with life sentence prisoners, is it really desirable to seek to apply a recall system which is being used at the moment only for short-term prisoners who have received automatic early release? The decision whether or not to release a mandatory or discretionary lifer on life licence does not fall within the responsibilities of the magistrates' courts. We all know that. Therefore I should like to ask the Government a question which I am certain my noble friend is ready to answer. It is simply this. Do the Government take the view that it is inappropriate for the Secretary of State and the Parole Board, who are responsible for deciding whether life licences should be issued, to be removed from deciding whether those life licences should be revoked if the circumstances require it.
Perhaps I may add just one more point. It is only fair to say—and it is appropriate to say it—that I believe that the Home Secretary takes the very greatest possible care

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in issuing detailed guidance on recalls for long-term and mandatory life sentence prisoners, which includes taking account in all cases of the recommendations of the supervising probation officer. Arguably, that is, if the noble Earl will forgive my saying so, preferable to the making of representations under subsection (3) of his amendment which would be both cumbersome and time-consuming.
In moving the amendment, the noble Earl said that he was interested in the principle of this amendment. So am I. Hence the questions that I venture to ask my noble friend.
Earl Ferrers: My Lords, I can understand the concern of the noble Earl, Lord Longford, about the period spent in custody by the prisoner to whom he refers before his case can be heard by the Parole Board. I do not, though, think it is an argument for bringing recall arrangements for lifers into line with those for prisoners who are serving less than four years in prison.
Offenders are given a life sentence either because they have committed murder or because they have committed another offence so serious that it justifies a life sentence, or because they are considered to be dangerous. In all these cases a key purpose of the life sentence is to protect the public by ensuring that such offenders are subject to supervision on release and that they should remain subject to recall to prison for the rest of their lives.
There is always an element of risk in releasing those who have committed a grave offence and whose circumstances at the time of the offence warranted a life sentence. It is important that this risk should be minimised and that licensees should be able to be recalled if their conduct gives cause for concern. My noble friend Lord Belstead asks: is it inappropriate for the Secretary of State or the Parole Board to recall such people? My answer is: no, it is not inappropriate. One can just imagine the outcry if a life licensee were to commit a further grave crime, where that could have been avoided if those concerned had been able to read the warning signs and recall him to prison in advance. An accusation of assault would be an obvious instance. The public would rightly be horrified if someone who was on life licence was allowed to stay at large in those sorts of circumstances.
It is entirely right where there is evidence that a licensee is acting in a way which causes concern, even if such behaviour does not amount to breach of his licence conditions, that he can be recalled immediately —that is, before he becomes a real threat to the public. Under this amendment the licensee would only come to the attention of the court if he breached his licence. In our view that would not provide anything like a sufficient safeguard. There may be other warning signs which do not constitute a breach of licence which would warrant his recall, at least while his case was reconsidered.
It is also right that normally the Parole Board should consider whether to recommend a life licensee's recall to prison. The Parole Board is trained and experienced in assessing risk and has the benefit of advice from a psychiatrist. It will also have before it all the evidence

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on which previous Parole Board decisions have been taken, including reports on the offender's conduct in prison. Magistrates are simply not trained to deal with this kind of assessment. They do not have the same expertise; nor would they be able to guarantee to have all the relevant documents before them.
In cases where recall decisions are taken by the Home Secretary without a Parole Board recommendation, it is because there is reason to believe that it is in the public interest to recall licence before such a recommendation is practical—in other words, it is an emergency. These cases are referred to the Parole Board as soon as practicable after recall. Again, it would simply not make sense for magistrates to get involved in those kinds of circumstances. The disadvantages would be the same, and there is the additional question of urgency. If it is not practicable to put the matter to the Parole Board, the same would be true of a magistrates' court.
It would be manifestly unjust if someone who was recalled was detained in prison indefinitely with no further review. But that is simply not the case. The Parole Board will consider all the information appertaining to the licensee in the light of the new information which has come to light and decide whether it is still safe for him to be allowed at large in the community. Where it is persuaded that the risk is acceptable, it will recommend his immediate release. In those circumstances the Home Secretary must release the prisoner.
The noble Earl's concern seems to relate particularly to the length of time a recalled prisoner may have to wait before his recall can be reviewed by the Parole Board. In all cases where a life licence is revoked the person is, immediately on his return to prison, given written reasons for the decision to recall him and he is informed of his right to make representations to the Parole Board. The prisoner is also provided with a copy of the papers which were before the Parole Board when it recommended recall.
In cases where the recall took place in an emergency without a Parole Board recommendation, the prisoner is given a copy of the papers to be placed before the board when it comes to review the Home Secretary's decision to recall the licence. How quickly a case is reviewed by the Parole Board depends upon how long the prisoner needs to make his representations, but normally recall cases are referred to the Parole Board within a few weeks of the prisoner's return to prison. But there have been occasions where prisoners have requested a longer time in which to formulate representations.
What is at stake here is not the irreversible revocation of a life licence. It is the incarceration of a potentially dangerous offender until the safety of his continued freedom can be assessed.
We should not forget that these offenders have in the case of murderers forfeited their right to liberty for the rest: of their lives because of what they have done. In the case of discretionary lifers, they have similarly forfeited their right to liberty should they be judged to be dangerous. It is clearly up to these people so to conduct themselves that they give no cause for concern. That is the basis on which they were released in the first place.
The Earl of Longford: I suppose that chat can be described as a very reactionary reply. The announce-ment that anybody who receives a life sentence has forfeited his right to liberty for the rest of his life is quite unacceptable. I have never heard that said plainly in this House before. But I have to swallow it. The Minister said it tonight. I only hope that when the new government come in that kind of attitude will be reversed. It is not the fault of the Minister It may be the fault of Mr. Howard. I do not know. It may be the fault of the Government. I think that it is an intolerable attitude towards fellow human beings.
With regard to this particular situation, I do not see how the Minister is able to defend such delays. I doubt whether he can do so or would try to defend them. Something must have gone wrong there. I think that three months is probably some mistake and somebody has slipped up somewhere. It happens in organisations and I think that it has happened here. It may be that three months is an abnormal length. It is no good questioning the Minister now, but I shall come back to this matter in later debates, possibly at Third Reading but probably more likely in later debates.
In the case of discretionary life prisoners, why is it that under pressure from Europe the ex-prisoner is allowed to appear and be represented but that is not the case with mandatory life prisoners? I do not want to cross-examine the noble Earl. It has been a long day and I expect that there is more of it to come. But that is a question that will be put to him very often. No doubt the noble Earl has his own philosophy—but in my eyes it is a very reactionary one—toward life prisoners. Tonight I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 [Powers of police to take non-intimate body samples]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 91:
Page 35, line 37, at beginning insert ("Subject to subsection (3C) below").
The noble Lord said: My Lords, with Clause 50 and Amendments Nos. 91 to 94, to which I wish to speak now, we move on to Part IV of the Bill, which is entitled "Police Powers" and which is specifically concerned with police powers to take intimate samples. These four amendments are not concerned with the issues that we raised in amendments at Committee, most of which we did not debate because of pressure of time. I am grateful to the Minister for writing to me in June in such detail about the amendments that I did not move. Does he not remember that he wrote to me? He will know that a new Minister who comes into office asks his civil servants how he is to write letters. The answer he is given is that he does not write letters but only signs them.
Earl Ferrers: My Lords, I remember the letter with pristine clarity. I wondered whether it was appropriate to write to the noble Lord and was advised that it would be a good idea. I decided to write to the noble Lord, and I well remember doing so.
Lord McIntosh of Haringey: My Lords, it was extremely courteous of the Minister and his letter was

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most helpful. As a result, I have not returned to the issues that I raised in Committee. I move now to a very specific issue in relation to intimate samples. The thrust of these four amendments is not to change the definitions of intimate and non-intimate samples but to seek to ensure that where samples are sought they shall be required only for those offences where, in particular, DNA profiling can be useful in evidence. In these amendments it is provided that the Secretary of State can make regulations listing such offences rather than seek to do so on the face of the Bill.
The present position is that these samples can be obtained only for serious arrestable offences which, as your Lordships know, include rape, murder and other very serious offences. Under Clause 49(3) (b) that possibility is extended to all recordable crimes, which goes a good deal beyond serious arrestable offences. All recordable crimes could include, for example, fare-dodging on public transport, shoplifting and similar offences where it could not possibly be claimed that DNA profiling was a relevant consideration. In Clause 50 it is provided that non-intimate samples can be obtained by force, not just for the purposes of investigation but for any reason. The matter is left entirely open. It seems to us that this goes a good deal beyond what is necessary for the purposes of the pursuit of justice, or indeed what the Runciman Commission discuss in a very thoughtful section of its report. The report recognises, as we do, that one cannot and should not seek to resist the course of science and that the availability of DNA profiling in identifying individuals and connecting them with samples relevant to the offence is a valuable advance in the pursuit of crime. There is nothing in that with which we disagree, and nothing in our amendments which derogates from that. In accepting that, the Runciman Commission propose a number of precautions which are not represented in Part IV of the Bill. To take only one example, Runciman said that samples taken in this way should be destroyed after use and not be retained.
I remind your Lordships that the definition of intimate samples is fairly wide and rather nasty. It includes blood, semen, other tissues and swabs from orifices of the body, including the mouth. Is it really the intention of the Government that it should be permissible to take such samples for the purposes of DNA profiling for the whole range of recordable crimes rather than simply for those offences where it may be relevant in providing identification? I suggest that if the general public knew what was now proposed they would believe that in the pursuit of efficient and scientific criminal investigation we were going too far. I believe that we are going too far in the way this part of the Bill is drafted. I hope that the Government will think again and see merit in the thrust of these amendments.
Lord Monson: My Lords, the noble Lord, Lord McIntosh, has made out a most convincing case for incorporating these safeguards into the Bill. I hope that the noble Earl will consider the amendments favourably.
Earl Ferrers: My Lords, the amendments proposed by the noble Lord would remove the main plank of the proposed new approach to DNA samples by the Royal Commission on Criminal Justice which is implemented in these clauses. The Royal Commission noted on page 15 of its report:
"It is not uncommon for persons arrested for sexual offences to have previous convictions for other types of serious offence, for example burglary".
In Recommendation 20, the Royal Commission proposed:
"The police should have the power to take without consent non-intimate samples for the purpose of DNA analysis from all those arrested for serious criminal offences, whether or not DNA evidence is relevant to the particular offence".
It is important that the House should understand the background to the changes to the law proposed in Clause 50. At present a body sample may be taken only where the sample will tend to prove or disprove the person's involvement in a particular offence. This contrasts with the arrangements for fingerprinting, where fingerprints may be taken from anyone who is charged with an offence and can be retained on a database if the person is convicted. We believe, along with the Royal Commission, that body samples for the purposes of DNA analysis should be placed on much the same basis as fingerprints.
In 1989 the Home Office Research and Planning Unit published a study entitled Changes in rape offences and sentencing which contained a number of startling statistics which are relevant to the matter we are now discussing. This research looked at the criminal histories of rapists convicted in 1985. The research showed that 80 per cent. of rapists had at least one previous conviction for what I might call an "ordinary" criminal offence, if one can think of what an "ordinary" criminal offence is. Thirty per cent. of rapists had more than 10 previous convictions for "ordinary" criminal offences.
The point of the Government's proposals in Clause 50 is to ensure that the police are able to take a DNA sample from people who are charged with "ordinary" criminal offences and retain it on a database if they are convicted so that, just as with fingerprint records, if DNA traces are found at the scene of a crime in future it will be possible to trace them back to the offender if he has previous convictions.
The Government believe that by treating DNA in the same way as fingerprints it will significantly increase the ability of the police to detect crime and will also deter some offenders, who know that their DNA is already on record, from committing further crimes. I am bound to tell the noble Lord that his amendments would significantly diminish the effectiveness of our proposals. I hope that he will be able to see the wisdom of leaving the Bill as it is.
Lord McIntosh of Haringey: My Lords, I am grateful to the Minister for that explanation but I note the difference between the phrase which he used about "ordinary" criminal offences for which rapists have been convicted and the quotations which he gave the House from the Royal Commission report. Both of the two quotations referred to serious offences, which is exactly what our amendment is seeking to achieve.

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I hesitate to say that the noble Earl has misrepresented the views of the Royal Commission but I do say, without indulging in a complete textual analysis of that valuable part of the Royal Commission report, that the suggestion that the Royal Commission's report has been faithfully reflected in this part of the Bill, in view of the fact that the Royal Commission, first, referred continuously to serious offences and, secondly, did not treat DNA samples in the same way as fingerprints in the sense that it suggests that the samples should be destroyed, is a misrepresentation of the facts.
I shall read carefully what the Minister has said. I am not convinced by his argument that we are significantly weakening the provisions of this part of the Bill, certainly not to the extent that it outweighs the civil liberties aspect of the amendments we are proposing. It may be that we shall return to this matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 to 94 not moved.]
Clause 51 [Fingerprints and samples: supplementary provisions]:
Lord Monson Lord Monson moved Amendment No. 95:
Page 36, line 33, after ("roots") insert ("from such part of the body as is reasonably chosen by the person from whom the sample is taken").
The noble Lord said: My Lords, two or three weeks ago Auberon Waugh, writing in the Daily Telegraph, castigated this Bill, and not for the first time. He went on to describe it as 40 Bills crammed into one. Mr. Waugh, again not for the first time, was exaggerating, but only slightly. It would not be wholly unfair to describe it as perhaps eight Bills crammed into one. The result is that important matters, or those which large numbers of people consider to be important, get between 60 per cent. and 80 per cent. of the attention and scrutiny they deserve, while those which most people do not consider to be particularly important get no more than 10 per cent. of the scrutiny they deserve.
When I think of the hours this House spent, and quite rightly, in passionately debating the proposals to allow intimate body searches contained in the Police and Criminal Evidence Bill 10 years ago—there were strongly held feelings on both sides and a good deal of opposition to the idea of body searches—it is extraordinary how little time we have spent on the proposal to allow the police to pull a person's hair out by the roots. That is something which is comparable in many ways to intimate body searches and many would find the two equally unpleasant.
If anyone other than the police were to pull a person's hair out by the roots it would constitute an assault in law, and not surprisingly, because it can on occasion draw blood—admittedly only a spot of blood, but blood nonetheless. So, if it has to happen for DNA purposes —I do not challenge the Government's right to do that because it may be necessary and I am prepared to accept the argument on that point—at least those from whom hair is to be plucked and who may be wholly innocent in fact as well as in law, should have the right to choose the least painful and disagreeable method by being

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allowed to choose the part of their body which is the least sensitive from their point of view. Eivery human being is different: for some people it may be the scalp and for others the chest or the calf and so on. But they should be given that choice.
I have used the word "reasonably" in the amendment so if someone is bald that person cannot say "You can only pluck hair from my scalp". That would be ridiculous. The police would then have the right to say, "No, the hair must be from somewhere else other than the scalp"—hence the word "reasonable". The amendment is not very elegantly worded, but then it is not a very elegant subject. Some safeguard has to be incorporated. I beg to move.
Earl Ferrers: My Lords, I do not find too much difficulty with the principle of what the noble Lord, Lord Monson, proposes so far as hair samples for DNA purposes are concerned. The Home Office will be issuing guidance to the police as to the way in which the new regime for body samples should be implemented, and this is precisely the kind of matter which we will be addressing in that guidance.
I do question, however, whether it is a proper matter for inclusion in statute. It seems to me that the words of the amendment set down a degree of operational detail which is not appropriate to a statute. In particular, they can impose inflexibilities which may cause legal difficulties. For example, hair samples can be used for a variety of purposes—from testing for drugs to making a visual match with a hair found at the scene of a crime. In the case of a visual match, it is clearly important that the right kind of hair is matched. There would be no point in trying to match the hair from somebody's forearm with an eyelash found at the scene of a crime.
I hope that the noble Lord will accept my assurances that we will deal with the matters which are raised by his amendment in guidance to the police on the taking of body samples so far as hair samples for DNA art; concerned and that, on that basis, he may feel it appropriate to withdraw the amendment.
9.30 p.m.
Lord Monson: My Lords, I am grateful to the noble Earl for that answer and for his explanation of why, in his opinion and the opinion of the experts in the Home Office, the amendment would be excessively inflexible. The important thing—I am encouraged by his answer —is that the Home Office intends to issue guidance on this matter. That is reassuring, and as long as the guidance is adhered to, there is nothing more to worry about. However, we shall obviously have to monitor this in the years to come. As I have said, so long as the guidance is adhered to—the noble Earl has given us his assurance on that—I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 [Power to remove trespassers on land]: [Amendment No. 96 not moved. ]
[Amendment No. 97 had been withdrawn from the Marshalled List. ]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 97 A:
After Clause 56, insert the following new clause:
( "Trespass: power to stop persons from proceeding

.—(1) If a constable in uniform reasonably believes that a person is on his way to land to which a direction under section 56(1) is in force, he may, subject to subsection (2) below—

(a) stop that person, and

(b) direct him not to proceed in the direction of the said land.

(2) The power conferred by subsection (1) above shall only be exercised at a place within 5 miles of the boundary of the land to which the direction applies.

(3) If a person knowing that a direction under subsection (1) above has been given to him fails to comply with that direction, he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.").

The noble Lord said: My Lords, in Clause 60 the Government have accepted that the police need a specific statutory power to direct persons who are on their way to a rave and within five miles of the boundary of a site not to proceed any further. The amendment would apply similar provisions to the problems which Clause 56 seeks to address.
In Committee, my noble friend was not convinced of the need for my amendment. He suggested that Clause 65 trespass cases would not be on the same major scale as those encountered with raves and that the assembly powers of Clause 65 could be invoked against mass trespass.
In the case of the Castlemorton Common incident in Worcestershire in 1992, the police found themselves facing a rapid build-up of very large numbers of travellers about whom they had had very little warning. As my noble friend knows, a Clause 65 ban on the assembly can help only where the authorities have at least several days' notice. The notice was given far too late in the case in question. A clear legal power to disperse such persons on their way to such an event would surely help the police to control mass trespass, which has every prospect of getting worse and out of hand.
The new clause provides the police with similar powers for Clause 56 situations to those provided for Clause 58 raves. The Association of Chief Police Officers has indicated to the Home Office that it is strongly in favour of the extension. Therefore, I very much hope that my noble friend will agree to this minor amendment. I beg to move.
Lord McIntosh of Haringey: My Lords, the noble Lord describes this as a "minor amendment". He will have seen that in Amendments Nos. 101A and 117 the noble Lord, Lord Monson, and I are proposing to reduce, in Clauses 60 and 65, the limit from five miles to one mile. If I may anticipate my speech on the later amendments, the effect would be to reduce the very all-embracing power from 78 square miles to three square miles. The noble Lord is now proposing to increase that for the relatively simple offence of trespass. I hope that the Government will resist the amendment.
Earl Ferrers: My Lords, as I said at the Committee stage, I have some considerable sympathy with my

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noble friend's intentions, but I have to tell him that I do not think that his new clause would be either desirable or enforceable. I am sure that in saying that I incur the pleasure of the noble Lord, Lord McIntosh of Haringey.
The provisions of the Bill give extensive—some would say "draconian"—powers to the police to prevent raves on land in the open air. Those are unusual in that they impose significant restrictions on the rights of people to travel and to assemble. But such is the nuisance to whole communities of those large-scale events that we consider the powers to be justified.
Encampments of New Age travellers and the like are different. I agree that they are an intolerable nuisance, particularly to those who are immediately affected. That is why the Government have brought forward the enhanced powers in Clause 56, but I do not think that it would be right to go as far as my noble friend would wish.
For all the misery and total frustration which is caused by groups of New Age travellers, a simple encampment cannot be said to create quite the wide-scale problems that raves do. With raves, we are dealing with a public, rather than a private, nuisance, particularly because of the damage which they do to the community by the noise they create from which it is impossible for man or beast to escape, and it is easier therefore to see that wider ranging powers are required.
In the case of raves there is hard evidence on which the police can act. Published leaflets give details of potential rave sites, and people will often clearly be travelling with the purpose of attending a rave at a particular site. With New Age travellers, that evidence is not usually available, and the police would be hard pressed to justify in court their action which was justified solely by a belief that people were travelling to a particular piece of land. That would open the way for all sorts of legal arguments.
Where the police have advance intelligence of a trespassory assembly which may result in serious disruption to the life of the community or significant damage to sites of special importance, they can use the powers provided in Clauses 65 and 66. I hope therefore that my noble friend will see the wisdom of what I have tried to explain to him and will feel that his amendment would be inappropriate.
Lord Stanley of Alderley: My Lords, I am afraid, with the greatest respect, that I do not see the wisdom of it, but I am prepared to concede it. I shall say just one or two things in summing up. First, It is extremely arguable whether raves are worse than Clause 56 offences. If my noble friend were allowed by the Welsh Office to visit Bala he might gain a different impression from the people who live there. I make the point time and time again. I am asking only for a power for the police. They do not have to use it. My noble friend knows perfectly well that the police are unwilling to use draconian powers such as those he suggests the amendment gives them.
I am surprised that my noble friend's department does not wish to help the police more, but that is his department's affair. It would be better to try to prevent a problem than to let it build up. I was trying to prevent

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it with the amendment, but I realise that I do not have the support of the House and, in particular, that of the noble Lord, Lord McIntosh of Haringey. I am not surprised that I do not have his support. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 97B:
Clause 56, insert the following new clause:
("Power to remove unauthorised campers on highway land

.—(l) if the senior police officer present at the scene reasonably believes that two or more persons are present on land forming part of a highway and are present there with the common purpose of residing there for any period, and that any of those persons has caused damage to land adjoining the land forming part of a highway, or to property on the said land, or used threatening, abusive or insulting words or behaviour towards the occupier of the said land, a member of his family or an employee or agent of his, he may direct those persons, or any of them, to leave the land and to remove any vehicles or property they have with them on the land.

(2) A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.

(3) If a person knowing that a direction under subsection (1) above has been given which applies to him fails to leave the land as soon as reasonably practicable, he commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(5) In proceedings for an offence under this section it is a defence for the accused to show that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable").

The noble Lord said: My Lords, I thank the Government for the great improvements they have made with Clause 56 compared to the present law contained in Section 39 of the Public Order Act 1986. In Committee, I moved an amendment to extend police powers under Clause 56 to include all highway land, not just footpaths and bridleways, which of course are in the Bill. My noble friend suggested that the police already have adequate powers to deal with unauthorised camping on major highways but he kindly agreed to look at my proposal.
In the later debate on Clause 72 my noble friend referred at col. 1122 of Hansard to the habit of travellers camping on bits of surplus highway land. In practice, because Section 39 does not cover highways, the police experience serious difficulties in moving on travellers who while not obstructing the free flow of traffic therefore do not offend against the Highways Act, which my noble friend said they would. They would not in fact in areas such as lay-bys or on improvements to highway land, commonly called oxbows.
Considerable damage to property, and distress to humans and to animals, has been caused to farmers and other local occupiers with land adjoining the highway by people in such encampments. Yet the police cannot use their powers to move them on because they are not trespassing on private land. The new clause seeks to close that loophole by giving the police powers similar in nature to those in Clause 56. It would operate only when an encampment on a highway land had resulted in damage to adjoining land or property, or to threatening

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behaviour towards adjoining occupiers. Like Clause 56, it provides a "reasonable excuse" defence. This is a public order matter as opposed to a trespass matter.
Once again, I must tell my noble friend that the police support the amendment and I ask him to support it too. I beg to move.
Lord Renton: My Lords, I have been most sympathetic to all that my noble friend Lord Stanley has tried to do to help people in rural areas. I fully understand and sympathise with the intention underly-ing this new clause. However, I very much doubt whether it is necessary, because it overlaps to such a great extent with the law as it stands. It is already an offence to cause malicious damage anywhere and in any circumstances. It is an offence to cause a breach of the peace. In certain circumstances, the use of insulting words or behaviour is also punishable.
I shall be interested to hear what my noble friend Lord Ferrers has to say about the matter. Probably he can set at rest the mind of my noble friend and of the police by reminding them that there are already powers which cover almost all of what my noble friend has in mind.
Earl Peel: My Lords, I too have a great deal of sympathy for what my noble friend is trying to achieve with the amendment. I hear what my noble friend Lord Renton is saying. However, often the offences which arise as a result of people wandering on to private land from sites, as described by my noble friend Lord Stanley, are civil offences. We all know that it lakes a great deal of time for a private individual to bring a successful prosecution under civil law. During that time a great deal of damage can occur.
I suspect that my noble friend's aim is to get the police to solve a problem which can be solved through the civil courts but which takes a great deal of time. From that point of view, I have a great deal of sympathy for what he says. However, I suppose—and I am speculating slightly—that if individuals wandered on to private land from these sites and they were to interfere with farming activities they could be caught under Clauses 63 and 64, which deal with aggravated trespass. I shall be interested to hear what my noble friend has to say about that.
Earl Ferrers: My Lords, my noble friend's
amendment would apply a version of Clause 56 to major highways and it could give the police additional powers to direct trespassers on the highway to leave where they have caused a nuisance on land which is adjoining the highway.
As I said in Committee, the Government do not think that it would be right to extend Clause 56 to major highways. Not only is the type of nuisance which is created by an encampment on a highway very different from that which afflicts an occupier, but the police have perfectly adequate powers under highway law to clear any obstruction. I fear that the amendment would bring unwelcome duplication and confusion to the law. The amendment also goes further than Clause 56 by applying its provisions to those trespassers on highway

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land who cause a nuisance on adjoining land. Under this amendment, unlike Clause 56, no one need ask the trespassers to leave.
The purpose of Clause 56 is to provide the police with powers to restore to the occupier the use of his land. The powers are dependent, therefore, on the landowner taking initial action to ask the trespassers to leave. We believe that it would be wrong in principle to extend those powers to deal with problems which might arise to third parties. Where people cause damage or use abusive behaviour, or commit other offences, there is a remedy under the general criminal law and public order law, as my noble friend Lord Renton suspected.
What my noble friend is trying to do is to say that those people are not trespassing on a person's land but they are residing beyond the hedge and defiling his land, and because of that they should be moved. The fact is that Clause 56 is dependent wholly on trespass. It would be difficult to use those substantial powers to move someone not because he was trespassing but because he was not trespassing, though he was doing something, however objectionable, to someone else's land. The civil law should deal with that.
I know that my noble friend feels strongly about these issues—and I do not blame him. I know that he welcomes the general thrust of the Government's proposals, but I hope he will realise why we feel that it would be difficult to accept the amendment as it stands.
9.45 p.m.
Lord Stanley of Alderley: My Lords, I thank my noble friend for that answer. He did not reply to the question of my noble friend Lord Peel as to whether the aggravated trespass provision would apply. I do not believe that it would.
We are slightly at cross purposes—and I understand why we are—because I am suggesting that this is not a trespass matter but a public order matter. My noble friend says, quite rightly, that Clause 56 is a trespass provision and does not deal with the issue of public order.
The main difference in our approach to this is that I wish, as I believe does my noble friend, although perhaps it does not apply in this particular case, to try to prevent causes of public disorder which these encampments can and indeed do cause. These people camp in an area and then chase the sheep, rob and do other things. I wish to say, as do the police, that those people are a nuisance and that we should remove the cause of the problem.
I understand the reason why my noble friend on the Front Bench cannot agree to the amendment, but I would quarrel with him with regard to what he said about the Highways Act. That cannot be used to remove such people because they are not causing an obstruction to the traffic; they are merely causing a public nuisance.
I am grateful to my noble friend for his reply, although I am not entirely happy about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 [Powers to remove persons attending or preparing for a rave]:
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 98:
Page 44, line 18, after ("apply") insert ("— (a) in England and Wales,'").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 99, 101, 105 to 112 and 213. In fact, Amendment No. 213 is the most important amendment because it extends to Scotland the powers in relation to raves and a power to retain and charge for seized vehicles and property under Clause 59(4).
Amendments Nos. 98, 99, 101 and 105 to 112 are technical amendments, ensuring the relevant application of the powers to Scotland. They are essentially consequential on Amendment No. 213.
When consideration was given in Committee to amendments tabled in the name of the noble Lords, Lord Macaulay of Bragar and Lord Carmichael of Kelvingrove, I indicated that our previous conclusion was that the Bill's provisions relating to raves were not needed north of the Border. Existing powers were deemed to be adequate to deal with any existing problems—and I stress "existing problems"—likely to be encountered in controlling unlicensed raves of the type covered by the clauses.
A generation somewhat younger than those noble Lords present here tonight see some of those powers as being an attack on the right to dance. But what we have been concerned to determine is whether in extreme cases the police have sufficient powers to deal with problems. In Scotland the police already have powers to seize music-making equipment when an offence has been committed under Section 54 of the Civic Government (Scotland) Act 1982. It was our view that the power of seizure may serve as a deterrent to persons who might otherwise be inclined to hold illegal raves in Scotland.
However, in the light of the observations made by the noble Lord, Lord Macaulay, during the debate on his amendment—and I hope that the influential noble Lord, Lord Graham of Edmonton, will pass on to the noble Lord the fact that we have taken his views into consideration—I said that we would take advantage of the period between Committee and Report to conduct a reassessment of the risks of a growth in illegal raves of the type experienced in parts of England against the background of existing powers in Scotland to control such events. We have now undertaken that reassess-ment. At present it is an offence under existing law, especially under Section 54 of the 1982 Act, to use sound producing equipment so as to give persons cause for annoyance. In certain circumstances equipment so used can be seized and retained by the police. Further, a limited measure of control for raves may be provided under Section 41 of the Act. That enables local authorities to require a licence for the use of premises as a place of public entertainment.
I am content that those and other provisions in our law are effective to cope with existing raves in Scotland. The question then is whether they will be able to cope in the future. Persons who arrange those events often do

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so, not surprisingly, surreptitiously and do not restrict their activities to any particular locality. Given those circumstances, it is not surprising that no hard information exists which suggests that they might turn an unwelcome attention to Scotland if prevented from mounting raves south of the Border. On the other hand, there is no reason to dismiss that possibility.
Taken overall, the Association of Chief Political Officers—
Lord McIntosh of Haringey: Political!
Lord Fraser of Carmyllie: I believe that they would resent that slip of the tongue in Scotland.
Lord McIntosh of Haringey: That is not an insult to police officers; it shows the Government's real thinking.
Lord Fraser of Carmyllie: My Lords, as I was trying to say, it is now the view of the Association of Chief Police Officers (Scotland) that organisers of illegal raves may see Scotland as an attractive proposition in order to pursue their activities if they are successfully blocked by the Bill—as, indeed, we hope that they will be—from doing so in England and Wales. The association has now suggested that, on balance, there would be an advantage in having the powers in question applied to Scotland in case we should witness an unwelcome influx of such events on their being proscribed in England and Wales.
While we conclude that the existing legislation can effectively cope with the existing rave scene in Scotland, the powers in question may be hard pressed to deal with any developing change caused as a result of illegal rave organisers turning their sights north of the Border. Therefore, following on from the amendments proposed by the noble Lord, Lord Macaulay of Bragar, we have concluded that there is merit in the rave powers being extended to Scotland. I urge your Lordships to accept the amendment. I beg to move.
Lord Burton: My Lords, only this week I have heard word of such a party which is to take place this weekend near a West Invernesshire village. Minor events of this kind were held last year and the village was disturbed about that. Therefore these events have already occurred. As my noble and learned friend said just now, if these events were banned in England, I have no doubt at all that Scotland would be the obvious place for them to occur. I am therefore most grateful to my noble and learned friend for having produced this amendment. I hope that your Lordships will accept it.
Lord Avebury: My Lords, I wish to raise a problem which has been submitted to me by the Motor Cycle Action Group. That organisation has 20,000 members in the country as a whole, and I believe it extends to Scotland as well as to England and Wales. It has posed the question of what happens when equipment is confiscated—as is provided for under Clause 61— which does not belong to the group in question. The Motor Cycle Action Group holds large meetings, the primary purpose of which is to discuss and to organise activities in connection with motor cycles. However, at those meetings the group may incidentally play music.

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I wish to point out in passing that, although the rubric on this clause refers to raves, there may be a great many other activities which fall within the definition of Clause 58(1) which refers to,
"a gathering … in the open air of 100 or more persons … at which amplified music is played during; the night".
In the course of motor cycle rallies and, I believe, many other kinds of meetings—for example, meetings where traction engines are exhibited—it is the practice to play music over loudspeakers. Some people might say, subjectively, that that was likely to cause serious distress to the inhabitants of a locality. Consequently the organisers and participants at such a meeting would be caught under a provision which is designed for some completely different purpose.
The point which has been raised with me by the Motor Cycle Action Group is that the equipment which it uses to provide sound at its meetings is almost invariably hired. It will become increasingly difficult to persuade hirers to hire out their equipment if they know that there is even a remote possibility of it being confiscated. I note that in Amendment No. 106, which is proposed by the noble and learned Lord, Lord Fraser of Carmyllie, there is provision for a claimant to get back the property which he owns—that is to say, a person other than the organisers of the rally, who presumably had hired the equipment for that purpose. The claimant may apply to the court and obtain an order from the court for the equipment to be restored. However, people will regard this as an enormous nuisance.
I have a feeling that the Motor Cycle Action Group is correct in its supposition that even the remotest threat that equipment might be confiscated, and that one might need to apply to the courts, whether in Scotland or in England and Wales, as regards the possibility of getting the equipment back will discourage hirers from hiring out equipment. I believe it is not stated that the court shall restore the equipment, but rather that it may restore the equipment to the owner if he satisfies the court of certain conditions. That hurdle which may occur as regards reclaiming the equipment will, I believe, be enough to stop the owners from hiring their equipment out to bodies such as the Motor Cycle Action Group in the first place. That would create great difficulties for that group as regards organising the music which is an incidental part of its rallies.
Obviously I do not have an amendment to propose on this matter, but I thought it was worth raising this point in connection with the amendment of the noble and learned Lord in case he had not considered it in the drafting of these provisions as they apply to Scotland. Of course they are parallel to those which have already been agreed by your Lordships for England and Wales. I certainly hope that before we leave this Bill it will be possible for the Government to have the opportunity of giving consideration to the point I have raised. Perhaps we may be able to discuss it after this debate or return to it on Third Reading.
The Earl of Balfour: My Lords, I wish to raise one question on this point in respect of Clause 59. I draw your Lordships' attention to subsection (10). If the

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clause is now to apply to Scotland I wonder whether there should also be a definition of "local authority" in the subsection. The subsection reads:
"In this section—
'entertainment licence' means a licence granted by a local authority".
The words "local authority" do not apply anywhere else. As the subsection defines a local authority in London, England and Wales I wonder whether there should be a further definition of a local authority within Scotland.
Lord Fraser of Carmyllie: My Lords, perhaps with leave I may reply briefly. In relation to the question of forfeiture and seizure, I shall read what the noble Lord had to say on that matter. I am sure that he will appreciate that the matter of forfeiture is best determined by the courts. One cannot insist that, if an application is made, in every circumstance the property will be returned to those who make objection to such seizure. However, I shall certainly look at the matter again.
My noble friend is concerned about the definition of local authority. My immediate reaction is that there is no difficulty on that matter in terms of drafting. However, again I shall have another look at that matter to ensure that there is no difficulty, particularly in the context of another Bill which is going through your Lordships' House which would change the basis of local government in Scotland from two tiers to one.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 99:
Page 44, line 19, at end insert ("; or (b) in Scotland, to a gathering in premises which, by virtue of section 41 of the Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.").
On Question, amendment agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 100:
Page 44, line 38, at end insert:
(""night" means the period between 23.00 and 07.00 in the morning of the following day; and").
The noble Lord said: My Lords, at Committee stage your Lordships had an interesting and cheerfully melodious debate on what is meant by the term "night" in Clause 58. The clause turns on the concept of loud music played at night causing serious distress to the inhabitants of the locality. In common with many noble Lords, I would have preferred the new powers to tackle unlicensed raves to be available at all times of the day. However, if they must be confined to the night, I believe that we should at least define what is meant by night. Otherwise there will be uncertainty and a potential weakness in the law, given the relatively short period of darkness in some latitudes in the summer, particularly in Scotland.
The amendment defines night as meaning a period between 11 p.m. and 7 a.m. the following morning. My reason for choosing those hours is that there is considerable precedent, notably the law restricting the use of car horns at night, which was introduced in 1937

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and which no doubt many noble Lords will remember, and the standard period for restricting noise from aircraft night movements. The period is also the time band adopted by the Government in their forthcoming planning guidance on noise.
I believe that this is a sensible amendment. I hope that my noble friend will consider it sympathetically. I beg to move.
Lord Monson: My Lords, I hope that nobody will accuse me of inconsistency in supporting the noble Lord, Lord Stanley, on Amendment No. 100 and the noble Lord, Lord McIntosh of Haringey, on Amendment No. 101A. Both amendments would enhance individual freedom—the latter amendment the freedom to pass along the Queen's highway and generally move around the country, except in exceptional circumstances involving physical threats to persons or property, and this amendment the freedom of people, including perhaps in particular children of school age studying for exams—to enjoy a decent night's sleep.
Lord Renton: My Lords, my recollection is that there are several definitions of "night" to be found in the law. So far as I know, no definition of night is given in the Bill. Therefore, the amendment moved by my noble friend deserves consideration.
In the circumstances envisaged by Clause 58, bearing in mind that we are concerned with people making a noise at night, I should have thought it reasonable and fair to consider that "night" means between 2300 hours and seven o'clock in the morning. Indeed, I would have preferred to make the period rather longer. My noble friend's moderation is commendable.
Earl Ferrers: My Lords, we had a discussion in Committee as to what was meant by "night". Defining anything like that is always difficult. I suppose that the best definition of night is "that which is not day". However, that does not get us far.
I believe that everyone in Committee recognises that this is not an easy area. As presently drafted, the Bill gives police powers to prevent or stop raves which take place during the night, because it is during the night that they cause most distress to the local community. We deliberately did not define "night" but left it to the discretion of the police, and ultimately the courts.
My noble friend seeks to import a statutory definition. I have much sympathy with that because it would make the law much clearer. But simplicity is not always a virtue. In some parts of the country at some times of the year, it can be dark at four o'clock in the evening. In other parts of the country at other times of the year, it is not dark until two o'clock in the morning. In his amendment my noble friend seeks to define "night" as being from 11 o'clock at night until seven o'clock in the morning. My noble friend Lord Renton considers that that is not long enough in which to sleep. I understand that. My grandfather used to say, "I sleep slowly". Therefore, what is sufficient night for some people is not sufficient night for others.
To stop a gathering at 11 o'clock at night might be quite unreasonable. I have no doubt that some noble

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Lords may at some time in their lives have been to, or even held, barbecues, possibly with amplified music, which could well continue until after 11 o'clock at night. That could be to the distress of some neighbours. On the other hand, in certain circumstances that hour could also be too late for an event reasonably to continue.
The simple fact is that we would far prefer the matter to be left to the police and the courts to use their discretion as to whether something has gone on in the night. Most people know what the night means; and that means when most people are normally likely to be asleep.
Viscount Mountgarret: My Lords, I wonder whether my noble friend might—
Noble Lords: Order!
Earl Ferrers: My Lords, my noble friend is in difficulty because at Report stage it is the convention that noble Lords do not speak after the Minister has spoken, unless they preface their remarks by saying "before the noble Lord sits down". However, as I had already sat down for quite a long while, I think that he has probably shot his bolt.
Viscount Mountgarret: My Lords, before my noble friend sits down, perhaps I may ask him whether there might not be a solution to the problem of the definition of "night". I seem to remember that in the Army one "stood to" one hour before sunrise and "stood down" one. hour after sunset. If there is a change of darkness in various parts of the country, to which my noble friend quite rightly drew attention, would not that phrase satisfy the difficulty to which he referred?
Earl Ferrers: My Lords, if I might have the leave of the House, I think that the answer is no.
Lord Stanley of Alderley: Thank goodness, my Lords; I agree entirely with my noble friend on the Front Bench. I agree that the answer to that is no.
I thought my noble friend was very persuasive, but frankly he did not have a single case of merit in his argument. First, "night" is described in three cases, which I quoted, by the Government as always between 11 o'clock (23.00 hours) and seven o'clock. So I cannot see why we cannot transpose that definition for this case.
My noble friend quoted some lovely cases when some of your Lordships were younger and might have gone to parties. I can only ask him to read Clause 58. None of those cases would be caught by Clause 58, and that is a very serious point. It completely defeats his argument. I shall not read the whole of Clause 58. Clause 58 (2) is quite interesting, as is Clause 58(1), but I will not go through them. I can see that I do not have my noble friend's sympathy. I am sorry about that, because I believe that the point is valid. My noble friend Lord Renton agrees. But I shall have to leave the matter there. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 101:
Page 44, line 39, after ('"'occupier"") insert (", "trespasser"").
The noble and learned Lord said: My Lords, I spoke; to this amendment when speaking to Amendment No. 98. I beg to move.
On Question, amendment agreed to.
Clause 60 [Raves: power to stop persons from proceeding].
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 101A:
Page 45, line 33, leave out ("5 miles") and insert ("1 miles")
The noble Lord said: My Lords, in rising to move Amendment No. 101A I should also like to speak to Amendment No. 117. Amendment No. 101A refers to the same issue in Clause 60 as Amendment No. 117 refers to in Clause 65. Both amendments seek to remedy what appears to us to be a quite extraordinary provision of preventing people going to events: in one case, in Clause 60, a rave; in the other case, in Clause 65, a trespassory assembly.
I have listened to the Ministers on the Front Bench as they have described these powers. The noble Earl, Lord Ferrers, said, that some would say they were draconian powers. He also used the words "extensive" and "severe powers". These are certainly very severe powers when we are talking not about people who are at the raves or trespassory assemblies but who are considered by a police constable in uniform to be going towards such assemblies.
We are aware that police in some parts of the country are already anticipating the powers that are given by this Bill. The thought that they may be given parliamentary authority to do the kind of things that are happening fills me with very great alarm. When stopped by a police constable in uniform who asks: "Are you going in the direction of Lower Bolting-in-the-Marsh?", or whatever it may be, and you reply that you are going there, who is to say that you know there is to be a rave there or a trespassory assembly? But the police constable, just by identifying the fact that you are going to that place, will be able to turn you away. You have committed an offence—not a civil offence but one that becomes a criminal offence.
These powers go way beyond the legitimate protection of individuals and, in particular, way beyond the legitimate protection of landowners. They amount to a real intrusion on the freedom of our people to move around our country. They extend this power beyond the land on which the supposed offences are taking place to an area of 78 miles; that is, five miles around the area, instead of the three miles that we propose now. I suggest to the House that they go far too far. I beg to move.
Lord Stanley of Alderley: My Lords, I cannot disappoint the noble Lord, Lord McIntosh. I think his amendment is most unacceptable. I hope that my noble friend will resist it.
Lord Renton: My Lords, when I first looked at this amendment I thought that there might be some merit in it. But the more one applies one's mind to the circumstances envisaged by the clause to which it applies, the more one realises that the amendment is quite unacceptable.

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The police officers may be in a car, on bicycles, on motorcycles or on foot. Luckily, these days the police are equipped with radios and are able to keep in touch with each other over a wide area. If a police officer hears that there is a build-up of something which will become a rave, even five miles or more away, and if he sees a vehicle or two obviously of the kind that would attend that rave, perhaps with musical instruments protruding from them or people in the vehicles already playing instruments, I should have thought that he had every reason to say to those people, "Where are you going?" If they are truthful they will say where they are going. The officer may say, "We know what you are going there for and I am obliged to ask you not to go there. I have power under statute to stop you." Even though it is five miles away, it is better that they should be stopped at that distance than that the policeman should have to follow them for another four miles, perhaps on his bicycle, until they are so close as to be within one mile. Therefore I hope that my noble friend will not accept the amendment.
10.15 p.m.
Lord Monson: My Lords, the noble Lord, Lord Renton, gave a practical objection to the amendment but he did not address the libertarian argument. Like quite a few people, I was very uneasy about the way in which the police stopped miners and their supporters travelling around the country during the miners' strike. It seemed to many people to be stretching the law as it then existed to its very limit and perhaps beyond. But at least it could be argued and was argued that in practice the restrictions, strictly legal or not, almost certainly saved a number of individuals from being injured, possibly seriously.
The same arguments about the prevention of injury to persons or property on balance could be applied to some of the new powers being granted to the police under this Bill where trespass is concerned. That is why I cannot support the noble Lord, Lord McIntosh, in Amendment No. 117.
However, this clause is not concerned with physical injury or damage to property but with nuisance in terms of noise emanating from a site where people have in general been given permission to gather. On balance, mere nuisance does not seem to justify putting into quarantine an area of 78.57 square miles.
Lord Avebury: My Lords, I too am inclined to agree with the noble Lord, Lord McIntosh. It seems to me that the powers conferred on the police to move away participants in the noisy gathering should be sufficient to deter those who are likely to contemplate organising such events without the extensive powers conferred by this clause to stop people from even approaching the gathering.
There is a great difference in principle between giving the police powers to stop something that is already causing a nuisance—I think we all agree about the necessity for the police to have powers to stop gatherings that are causing serious nuisance to people in any locality—and saying that people should not even

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approach a place where the police suspect that such a gathering is to take place. That is an enormous extension of principle. No one has done anything at that point.
The case is not quite that put by the noble Lord, Lord Renton, where the police ask the traveller a question, having seen musical instruments sticking out from a van which has given them reason to suppose that the driver is approaching the rave. A person may be dressed in a particular kind of clothing which the police think betokens his intention to go to the gathering, and that may be the only reason they have for suspecting that he will do so. If he denies that he is going to the gathering, the police having, as they see it, reasonable cause to suspect that he will attend the rave will order him not to do so. I believe that the police have a very drastic power if they can stop somebody from moving freely about the country, not because he has committed or is even thinking of committing an offence but because they consider that they have reasonable cause to believe that he will attend the gathering. One imagines that if these matters came to court and there was a dispute about whether the police had reasonable cause, in every case the court would take the side of the police in upholding their reasonable belief in the person's intentions.
I believe that we are giving an enormous power to the police and that the more we restrict it the better. I do not agree with the Minister, who said, when we discussed this matter on another amendment in Committee, mat it would impose on the police severe operational difficulties if they could not stop somebody in the space between five miles and one mile from the site of the gathering. One mile is an enormous distance on a road where the police can have their vehicles spaced to intercept travellers who are on the way to the gathering. I do not honestly believe that the Minister, on reflection, will insist that in any country area where the police are on the roads approaching the site of a rave they will have difficulty in stopping people at the shorter distance proposed under the amendment. I beg your Lordships to consider that we are extending the powers of the police very widely to deal with activities which they believe are in contemplation by an individual but which he may not have any intention of carrying out. We ought to restrict that power to the narrowest limits that we have and not be misled into thinking that the evil we propose to combat—the rave itself—means that we must extend the powers over such a wide area as is proposed.
Earl Ferrers: My Lords, the simple fact is that when the police are trying to stop a rave from happening it is essential mat they have the ability to turn people away before sufficient numbers gather to make the dispersal operation impractical. If the police can act only within one mile of the site it will be very difficult for them to prevent the gathering from taking place. I believe that five miles is a reasonable distance, given that these powers are envisaged for use in rural areas.
Amendment No. 117 seeks to introduce a similar restriction in respect of trespassory assemblies. This is all very much a matter of judgment. I said in Committee that the Government's objective in bringing forward Clause 65 was to prevent disruption of the community by assemblies of trespassers in a given and precise area.

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This area needs to be wide enough to enable the police effectively to enforce protection but not so wide as to represent an unreasonable interference with people's general freedom of assembly. It can always be a matter of judgment whether the distance should be five, four or three miles or one mile. The fact is that we are dealing with a gathering of people that is likely to involve vast numbers.
The noble Lord, Lord Avebury, said that one mile was a vast distance. We are talking here about gatherings that sometimes attract tens of thousands of people. If they all congregate within one mile of the event before the police can take any action, the police will be powerless to prevent the assembly. The people will be overwhelming in their numbers and the police will be unable to turn them back, not least because the very roads on which they will turn them back will already be jammed with other people who are going to the assembly.
These assemblies can be deeply offensive to the local community. The noble Lord, Lord McIntosh, said that this is an intrusion into the liberty of people to do what they want to do. But the real intrusion is into the liberty of people when masses of others gather together to disrupt the life of their community. That has happened and does happen. There is no point in the noble Lord saying that it is an infringement of the liberty of people to turn them away. The real infringement of liberty is what happens to the individuals whose lives are disrupted. Directions can be given only where a police officer believes a person to be going to the gathering, not just to the place where it is for some unconnected purpose.
It is as well to remember the point which my noble friend Lord Stanley made earlier. The police will not always use five miles. Of course they will not. But they should have the ability to turn people back within five miles should they deem it necessary in order to stop the event happening and in order to stop all the roads being jammed before they can do anything about it, by which time it would be too late.
Lord McIntosh of Haringey: My Lords, the Minister says that it is a matter of judgment. Indeed it is. The judgment we have to make is whether powers which are sought to deal with a particular nuisance should be so extensive as to interfere with the liberty of the subject. The Minister in his speeches, not just today but at earlier stages of the Bill, has continually referred to the seriousness of the nuisance which he is describing. He referred today on more than one occasion to thousands of people. Clause 58 does not say anything about thousands of people. Clause 58 says:
'This section applies to a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night".
I shall not be so impertinent as the Minister and ask whether any of your Lordships has attended or even held a barbecue, but I suggest that most of us have attended weddings. Weddings take place in the open air; weddings have more than 100 people; weddings involve amplified music; and weddings fall within the definition

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of raves as found in Clause 58 of the Bill. The powers which the police have could be applied to weddings of people the police do not like.
The whole point of our objection to this series of clauses about trespassory assemblies, aggravated trespass and so on is not that we are defending the very few extreme cases that take place but that the powers which are sought in the Bill are powers of a police state. They are powers which extend far wider than the examples which the Government choose to give. Every time Ministers seek from the Dispatch Box to defend these powers they defend them by describing the events in much more lurid terms and therefore in much more restricted terms than the terms in which the Bill is drafted.
This Bill is an open invitation for the police and for the authorities generally to interfere in the legitimate activities of people, and particularly of young people, in our country. Our objection to it cannot be encapsulated in the particular amendments which we are forced to introduce in the way in which we consider the Bill in this House. These are repulsive extensions of police power in our society and at some stage they will have to be removed. The difference between five miles and one mile is not a worthy subject, particularly in a Chamber crammed with landowners, on which to seek the opinion of the House tonight, but it is a serious issue which will require parliamentary action in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 [Power of court to forfeit sound equipment]:
10.30 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos 105 to 112:
Page 46, line 21, at beginning insert ("Except in a case to which subsection (5A) below applies,").
Page 46, line 25, at end insert:
("(5A) In a case where forfeiture under subsection (1) above has been by order of a Scottish court, a claimant such as is mentioned in subsection (5) above may, in such manner as may be prescribed by act of adjoumal, apply to that court for an order for the return of the property in question.").
Page 46, line 26, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 46, line 35, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 46, line 37, after ("(5)") insert (", or as the case may be by virtue of subsection (5A),").
Page 46, line 43, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 47, line 2, leave out ("convicted") and insert ("— (a) convicted in England and Wales").
Page 47, line 4, at end insert:
("(b) so convicted in Scotland, means the time of his arrest for, or of his being cited as an accused in respect of, the offence;").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 98, I spoke to Amendments Nos. 105 to 112. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 62 (Retention and charges for seized property]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 113:
Page 47, line 7, leave out subsection (1) and insert:
("(1) A county court may make an order for the retention of any vehicles which have been seized and removed by a constable under section 57(1) or 59(4).
(1A) A vehicle may not be retained under subsection (1) above if it is the sole or main residence of any person.").
The noble Lord said: My Lords, I shall seek not to make the more general criticisms which I have made of this part of the Bill. I simply ask the Government whether it is really their intention to use these powers to take away people's homes, because that is what is proposed here. Clause 62 refers to property and it seems to equate vehicles with sound equipment and other property. Do the Government realise that what they are doing is taking away people's homes and providing legitimacy for the removal of those homes? What is going to happen to the people who live in those homes and in particular to the children? I beg to move.
Lord Renton: My Lords, this amendment seems to be unnecessary. It will lead to delay in achieving the purpose which we have in this clause. I am bound to point to out that waiting until the county makes an order is not in conflict but it is incongruous when we compare that with the power in subsection (3) of the clause given to the Secretary of State to make regulations for the,
"disposal and destruction of vehicles".
Subsection (1) of the amendment is inappropriate and unnecessary. But subsection (1A) is more serious. I consider this to be a wrecking provision. It means that, even though breaches of Clause 56(1) involving trespassing and causing damage have taken place, or there have been breaches of Clause 58 where 100 or more people have played loud music at night, the vehicles could stay on the land, however many vehicles there were, if the owners of the vehicles were accustomed to residing in them. That would utterly defeat the purpose which Parliament has so far had in mind in trying to protect the public.
Despite what the noble Lord, Lord McIntosh, said, about a police state, he has completely overlooked that these clauses are necessary for the protection of the public so that people can live in peace and quiet and seclusion in rural areas. I hope that my noble friend will not have any sympathy towards this amendment especially subsection (1A), which is a wrecking provision.
Lord Avebury: My Lords, I believe that in the regulations which Ministers draw up under this section a distinction has to be made between individuals who use vehicles as a residence and those who have merely arrived at the site of the trespass in vehicles and have some other home to which they can go. If Ministers do not make such a distinction, what do they believe will happen to the persons who live in those vehicles? They will certainly be treated as homeless within the terms of the recent Government guidelines. That will make the local authority responsible for rehousing them and their children at vast expense to the ratepayer and the taxpayer. Is that really the intention or does not the Minister think that, on the face of this clause, the powers of the court to retain and dispose of vehicles should be

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different in the case of vehicles which are used as the main or principal residence of the owners concerned and those whose use of such vehicles is incidental to their presence on the site?
If the Minister does not think that, what provision is being made for other authorities to be notified of the decision of the court so that adequate arrangements can be made for the rehousing of the families and the welfare of the children? At this point, perhaps I may remind the Minister of the extreme anxiety which has been expressed by all children's organisations concerning some of the effects of the Bill. I do not have any particular sympathy with New Age travellers. As the Minister is aware, I want to distinguish between the New Age travellers and the gypsies, for whom I hold a particular regard—and have for many years—and for whom I think special provision ought to continue to be made. We shall come to that point on Monday.
We are talking about New Age travellers here, many of whom are accompanied in their caravans by children. The local authorities' obligation to the children is the same whether the parents belong to the gypsy community or to the New Age traveller community. I am sure that all your Lordships will agree with that. You cannot simply remove a vehicle from a site, leave children on the roadside and not make any arrangements for their accommodation. One cannot allow the courts to take away a person's home - and to destroy it, if they wish - without making any alternative provision for looking after the children.
I hope that the Minister will say that that point will be taken care of in the regulations and that adequate accommodation will be made available to such travellers under the homelessness provisions. Unless the noble Earl can give us those assurances, I remain extremely concerned about the effect of the clause.
Earl Ferrers: My Lords, this amendment seeks to make the retention of vehicles seized and removed by the police following a direction to leave land under the terms of Clauses 56 and 58 dependent on a county court order rather than on regulations made by the Secretary of State.
I am the first to acknowledge that the seizure of vehicles is a sensitive area. The circumstances in which a vehicle might be retained, like all interferences with private property, must be prescribed by law. It is therefore right that their retention should be carefully regulated and restricted rather than left to the wide discretion of the courts. The regulations are subject to the negative resolution procedure, which will provide Parliament with an opportunity to discuss them. The noble Lord's amendment would provide the courts with no guidance and would therefore allow them to make arbitrary and inconsistent decisions.
The amendment also seeks to provide a restriction that vehicles which are peoples' homes may not be retained. Of course one would not expect lots of vehicles which are homes to be seized. In most cases, people who will be directed to leave will do so for their own good. That is what happens in most cases now, under the existing law which is contained in Section 39 of the Public Order Act 1986.

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What the noble Lord, Lord McIntosh, is really saying is that, if a person is told and given a direction to remove his vehicle from a certain place, he must do so, but, if the vehicle is occupied by his family, he need not bother. He can stay there and disregard the direction. I do not think that that is right.
The noble Lord, Lord Avebury, asks what happens if people do not move and have to go into care. That is an extreme view. The fact is that, if these people have trespassed, and in such a way that they are given an order to move, it is up to them to move. It is highly unlikely that they will continue to remain on the land. The noble Lord asks, "What happens if they do?" The fact is that they will have to be moved on. The noble Lord is right about the totally extreme case. Where vehicles are seized, the people concerned would become a liability on the local authority. Frankly, I think that that is highly unlikely and the fact that it is a possibility —even though it is a highly unlikely one—is not sufficient reason for saying that, provided the vehicles are occupied by people, those people can disregard an order. If someone were to ignore such a direction, we see no reason why he should not be open to having his vehicle removed so as to end the nuisance which required the direction in the first place.
Vehicles will, of course, be reclaimable on payment of the appropriate fee, just as someone who is parking illegally in London and has had his car towed away may recover it on payment of the appropriate sum. If we are to have the provision, and I suggest that it is necessary to have it, the amendment would not be an improvement, because one has to make provision for what is to be done when people refuse to obey the order.
Lord Avebury: My Lords, before the Minister sits down perhaps I may ask a brief question for elucidation. Will it be possible for the draft regulations which are referred to in subsection (3) to be produced before Third Reading so that your Lordships can see what is proposed to be done by the courts under this provision in the case of families living in accommodation, and the differences in treatment the Minister proposes should be accorded to them as compared to single persons?
Earl Ferrers: My Lords, I shall have to consider that point. It is unlikely that we shall be able to get the draft regulations in time for Third Reading. But I shall consider the matter.
Lord McIntosh of Haringey: My Lords, the Minister is a master at taking government proposals and giving his own explanation of what they mean, which is often entirely different from what they actually mean. What he said in response to the amendment was that we are saying that those who have the vehicles in which they live on land which is designated under the terms of the Bill are being told that they can just get on with it; that there is nothing that can be done about it. The amendment does not say that vehicles cannot be removed from land even if the vehicles are the vehicles in which the people live. What we are talking about in the amendment is a different thing: it is the retention

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—in other words, the confiscation—of those vehicles which are homes. That is the issue which is addressed in the second part of the amendment.
In the first part of the amendment we are saying that the confiscation of people's homes shall be possible only if that is required by a county court. It is irrelevant to say that the county court has no indication of the basis upon which it will confiscate people's homes. Of course county courts will pay attention to the legislation and form rules, as they do with all such things, as to the basis upon which they will sometimes order the confiscation and sometimes not. Even though subsection (1) of the clause is removed by the amendment, there is nothing to stop the Home Secretary from issuing guidance notes to county courts as to how this part of the Bill should be interpreted.
I found the Minister's response to the amendment not just unhelpful but in many ways misleading and beside the point. I do not believe that he understood the issue that I and the noble Lord, Lord Avebury, were trying to raise: that in not just a few rare cases, but in a number of cases, this will result in local authorities having to take charge of children and an increase in homelessness. Nothing that the Minister has said has persuaded me that the amendment is not one of the ways, but only one, in which it will be necessary to address this serious social problem. The faults with this part of the Bill are so widespread that one cannot deal with them in individual amendments in this way. They will have to be dealt with by widespread repeal in due course rather than by piecemeal amendment today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 p.m.
Clause 63 [Offence of aggravated trespass]:
Lord Mancroft Lord Mancroft moved Amendment No. 113A:
Page 48, line 4, leave out ("or adjoining").
The noble Lord said: My Lords, in speaking to Amendment No. 113A I wish also to address Amendment No. 113B. I apologise to the House for the fact that the amendment was tabled only last night. It was a mistake, an oversight. There was no intention to surprise your Lordships.
The amendment refers to the offence of aggravated trespass. Perhaps I may remind your Lordships that a person will commit that offence only if he trespasses with the intention of disrupting a lawful activity which is taking place on the land or on adjoining land. What exactly does "adjoining" mean?
Perhaps I may take, first, the case of three small farms lying side by side. Let us suppose that saboteurs trespass on the first farm and the hunt or shoot is on the second farm. Since it is clearly adjoining land, an offence is committed and the police can take action. But what if the hunt or shoot happens to be 50 yards further away, or perhaps not further away but nevertheless on a third farm whose land does not march with the first? While saboteurs are on the first farm, is it the case that they commit no offence because the land is not adjoining? Clearly, that would be absurd.
Disruption is no less irritating and no less likely to provoke a public order problem because it happens to fall foul of a legal loophole by taking place on the wrong piece of land. It would make a mockery of an otherwise excellent and welcome new offence. Worse, I suspect that it is a recipe for police confusion. How can the police be sure whether saboteurs are on adjoining land? How can they know where the borders between two or more farms lie?
It is worrying to contemplate how many prosecutions under this legislation will fail because defence lawyers, quite properly, discover that the land is not adjoining. I respectfully submit that it is not enough to say that the lawful activity and those seeking to disrupt it should be in close proximity for an offence to be committed. How close? The whole purpose of Clause 64 is to give the police pre-emptive powers to prevent disruption. What is proposed is not some carefully defined geographic limit but adherence to the arbitrary and completely unpredictable boundaries of the land registry's map. In parts of the country where farms and land holdings are very small this loophole could well be enough to make the new police powers extremely difficult to operate.
I suggest that "neighbouring" would be a better word than "adjoining". There is an objection to the word on two grounds. First, some lawyers—and some lawyers to whom I have spoken—have advised that "adjoining" may indeed mean "neighbouring". The Government have indicated that they do not want the courts to interpret adjoining land as being strictly limited to contiguous land. The Government have said that fields, for example, separated by a river or a road, would probably be considered to be adjoining land. "Probably" is rather vague. What if they are not? In the example I gave, would the first and third farms be adjoining or not? It is most important that we have clarification.
Secondly, there is a worry that if "neighbouring" goes beyond "adjoining" it is far from clear how wide it will be taken to go. We are extremely anxious that at an earlier stage the Minister said that he would certainly not wish to see the offence so widely drawn as to include all land in the same locality or neighbourhood. But, on reflection, why not? This is not an extreme or wide concept. It is essential that the police have clear and workable powers.
We have been told that "adjoining" does not mean "contiguous". It might mean "neighbouring", but "neighbouring" does not mean "in the neighbourhood". Therefore, what does it mean? If it is not clear, and it is not clear at the moment, I suspect that it would be much better to have no limiting factor. A person who trespasses with the intention of disrupting a lawful activity on any land would commit an offence. I fail to see why that should be unacceptably wide. A person trespasses and he does so setting out to disrupt something. That is the intention. Why should it matter how far away the activity is that he intends to disrupt? There cannot be scope for injustice. Clearly a person must be relatively close to disrupt or even to intend to disrupt. Indeed, he must probably be within sight or sound of the activity.
If a limiting factor is required, the Bill needs to be far more clear and precise than it is at present. A geographical limit of five miles is defined in relation to raves in Clause 60, and we discussed that earlier this evening. Therefore, there is a precedent for a similar limit in relation to aggravated trespass.
I do not believe that this is a petty or a drafting point. We discussed this matter in Committee. It was not clear then and it is no clearer now. I suspect that, unless we sort out the matter and achieve a more precise definition, there will be a great deal of confusion and injustice in the future.
The amendment does not seek to broaden the offence or to make it more narrow. I seek only to clarify what is intended and what will happen in practice.
The reason that there are two amendments is very simple. One substitutes "adjoining" for "neighbour-ing". If your Lordships are not convinced that "adjoining" or "neighbouring" achieve a sufficiently precise definition, the obvious answer—and I do not suggest that it is the perfect answer—is not to have a defining adjective at all so that the legislation refers only to "land"; hence the two amendments. I beg to move.
Lord Renton: My Lords, my noble friend Lord Mancroft has given us some vivid practical reasons for making the change which he proposes and I have a lot of sympathy for what he said.
The trouble about the word "adjoining" is that it is ambiguous. It could mean either "immediately contiguous", a phrase which my noble friend mentioned, or "land in adjoining ownership". Now, the adjoining ownership could stretch for miles in certain rare cases; for example, with a large estate. In fairness to all concerned, we should be clearer as to what we are trying to achieve.
I believe that the word "neighbouring", which could include land in different ownerships and not far away, is one way to solve the problem. I am not quite sure about my noble friend's other suggestion that we should just say "on land". I do not believe that that is precise enough.
Another way in which to approach the matter which my noble friend may consider between now and Third Reading is to say "on or near that land". I believe that the words "on or near" would cover the circumstances envisaged by my noble friend.
This looks to be a narrow point but in practice it could be quite important. We need to achieve fairness to all concerned, including the trespassers. Therefore, we need to consider this matter further.
Earl Peel: My Lords, I agree entirely with what my noble friend Lord Mancroft said. It is largely a question of interpretation. It is quite clear to me what is meant by "adjoining" but I am not a lawyer.
I am sure that, as the Bill is currently drafted, there is a very real possibility that a prosecution under Clause 63 could very well fail because, as my noble friend Lord Renton said, the offence may take place some distance away from the legal activity and yet the legal activity may still be prevented from taking place by some form of disruption.

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I take shooters as an example. Let us suppose that those who were going to participate in that shoot, that legal activity, were staying at a public house. That public house could be many miles from where the legal activity was likely to take place. It is not unknown for those who wish to disrupt such activities to gather outside a pub and try to disrupt and prevent them from taking place. Indeed, that actually happens. If the police wished to take out a prosecution, they would find it very difficult to do so. They would have to find out in advance where the legal activity was going to take place and how far it was from the pub. I can imagine that leading to very considerable difficulties.
It is quite clear to me that we need a very clear account of how the legal interpretation of the word "adjoining" will be taken. I have attached my name to Amendment No. 113B, which substitutes the word "neighbouring" for "adjoining", but I have to say that I do not particularly like it. It is an improvement on the word "adjoining" but, ideally, I should have thought that the word could and should be removed altogether.
I have one further alternative to suggest to your Lordships; namely, to specify a distance, say, five or 10 miles, or whatever. That might help to solve the problem. Either way, it is quite clear that we have a real problem. I hope that my noble friend the Minister will be able to solve it for us.
Earl Ferrers: My Lords, I am grateful to my noble friend for saying that we have a problem and hoping that I will solve it for him. I know that both my noble friends Lord Mancroft and Lord Peel have been worried about the degree of proximity which is required between the trespassers and the lawful activity which they are seeking to disrupt. I have had the privilege of talking to them after the Committee stage and before the Report stage to find out whether there is a way around the problem and what would be the best route to take. I have given some considerable thought to the matter myself as well as seeking advice.
The new offence of aggravated trespass is committed by someone who trespasses on land in the open air and who seeks to disrupt, obstruct or intimidate those people who are engaging in, or about to engage in, a lawful activity on that land or on adjoining land. That means that the offence can be committed where trespassers are near to the lawful activity but where they may not actually be on the same land.
My noble friends suggest that the word "neighbour-ing" is a better alternative to "adjoining". I can understand their reasons for so doing. However, I am advised that that is too imprecise for the criminal law. My noble friend Lord Renton says that "adjoining land" could mean adjoining ownership. But I am bound to say that I believe that to be considerably wider. If we meant to cover adjoining ownership, I should have thought that that would have been so described.
However, if one looks at the word "neighbouring", one must ask: where does neighbouring end? It could be the other end of the village or even the other end of a very small market town. Obviously, we have to keep the idea of proximity to the lawful activity. I believe that it would be wrong to draw the offence so widely that all

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land in the same locality would necessarily be included. Therefore, if the lawful activity was on a person's piece of land, even if it was a vast estate, the whole of the land would be covered.
I understand my noble friends' desire to ensure that "adjoining" does not mean just contiguous and that it must actually be contiguous land. Of course, it would be a matter for the courts to decide. But, depending on the circumstances, "adjoining" might not be restricted to absolutely contiguous land. For example, I doubt whether a river, or a road in between, would matter if it was clear that the behaviour on one side of the river or the road could directly affect the activity on the other. But, as I have said, "neighbouring land" as a legal expression would be too imprecise and that is the reason I am advised that "adjoining land" is better than "neighbouring land".
Lord Burton: My Lords, before my noble friend sits down, I hope he can answer one question. What happens in the case of hunting, which may take place over quite a large area and where quite a large number of people may disrupt it in different places? Indeed the meet may be held quite a long way from where the hunting is to take place.
11 p.m.
Earl Ferrers: My Lords, it depends what the lawful activity is. If the lawful activity is a meet which happens at one place and if people are coming to disrupt the meet, then, of course, they would be causing the offence where the meet takes place. If the meet then moves off and hounds hunt over some other part of the land some miles away and the offence happens over that part of the land where the hunt is taking place, then of course the offence will be created there.
Lord McIntosh of Haringey: My Lords, before the Minister seeks to sit down again, I must say I am a little puzzled by his reaction. Here are two amendments moved by the same people which are in total conflict with each other. Amendment No. 113A would seek to limit the effect of Clause 63, because it restricts the offence to an offence "on that land" and takes out the words "or adjoining". Amendment No. 113B, on the other hand, seeks to extend the scope of the offence in Clause 63, because it seeks to replace "adjoining" by "neighbouring", which it is argued—the Minister has argued this—is wider than "adjoining". Which of the two is the Minister opposing?
Lord Renton: My Lords, may I have the leave of the House just to answer the noble Lord? The point is that Amendment No. 113 A is merely a paving amendment to get rid of the words "or adjoining"; Amendment No. 113B is the effective amendment to leave out "adjoining" and put in "neighbouring".
Lord McIntosh of Haringey: The noble Lord is not in order in any case!
Earl Ferrers: My Lords, I do not know whether my noble friend is in order and I do not know whether the noble Lord, Lord McIntosh, is in order making an intervention from a sedentary position. But, with the

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leave of the House, the noble Lord, Lord McIntosh, asked me a question when he asked which amendment I was opposing. The answer is, I am opposing both, because I think the words of the Bill are right.
Lord Mancroft: My Lords, I, of course thank my noble friend for his answer and I have to say that I am even more confused now than I was when I started. To a certain extent I find myself—he will be delighted to hear—in agreement with the noble Lord, Lord McIntosh, because the fact is that to a certain extent the noble Lord, Lord McIntosh, was right when he said that in one amendment we are extending the offence and in the other we are tightening it. In fact what we are trying to do is to define it—either big or small or fat or thin or tall or short. We would just like to be reasonably accurate about it.
I think what the noble Lord, Lord McIntosh, succeeded in doing was demonstrating very ably to the House—he may have been stirring a little bit but I cannot believe he would ever really do that—that the measure is so imprecise that neither one side nor the other, nor anybody else, really knows exactly what it means. That is even more confusing. I believe that the most important thing my noble friend on the Front Bench said was that we should not include both provisions, but he did not say why we should not do so. There may be a very good reason why we should not make the provision as extensive as the first of the two amendments suggests. There may be a good reason for that but I am not quite sure that he told us what it is. Nor did he manage to tell us why it would not be possible to do what my noble friend Lord Peel suggested, which was to put a mileage limit—if that is the right phrase —round the provision. The summation of the matter is that I am a great deal more confused than I was. I am utterly convinced now that this matter is very imprecise. I simply do not know what is the difference between "neighbouring" and "adjoining". I shall read very carefully tomorrow morning what my noble friend has said and I may well have to come back to this, reluctantly, at Third Reading. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments No. 113B to 116 not moved.]
Clause 65 [Trespassory assemblies]:
[Amendment No. 117 not moved. ]
Clause 67 [Violent entry to premises: special position of displaced residential occupiers and intending occupiers]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 117A:
Page 52, line 45, after ("occupier") insert ("who uses or threatens necessary violence against the property").
The noble Lord said: My Lords, I rise to move Amendment No. 117A and to speak also to Amendments Nos. 117B, 117C, 117D, 117E and 117G. The most important of those amendments, as will be obvious from the wording, is Amendment No. 117G.
We are concerned here with squatters and those who are entitled to regain possession of property by force on

1500
behalf of displaced residential occupiers or protected intending occupiers. We are concerned with towns. The countrymen can go home if they want to. I shall gladly pause in order to enable them to leave in an orderly fashion.
The concern which is expressed in the amendments relates to the extent of the power which is given not simply to displaced residential occupiers or protected intending occupiers themselves but to their agents. By agents we mean, in polite and legal terms, bailiffs. In realistic terms they could well be thugs. In other words, we could return to Rachmanism of the worst sort. The Bill provides that a degree of violence—and the word is used in the Bill—is permitted in order to regain access to such properties.
We do not suggest any fundamental change in the Bill. We do not suggest that there should be any diminution of the rights of displaced residential occupiers or protected intending occupiers or, indeed, that they should not be able to appoint agents to regain access for them. In Amendment No. 117G we propose that persons acting on behalf of displaced residential occupiers and protected intending occupiers should be legitimate. In other words, local authorities should keep a register of those people who are entitled to act on behalf of these displaced residential occupiers and protected intending occupiers, that the Secretary of State should issue guidance as to how the register should be maintained and the criteria under which persons may be excluded from it; and that persons should not be deemed to be acting on behalf of displaced residential occupiers or protected intending occupiers for the purposes of Sections 6 and 7 unless they are registered on that local authority register.
I do not think that even the noble Lord, Lord Renton, were he still here, could claim that this is a wrecking amendment. It is intended simply as a way of avoiding violence on the streets caused by thugs brought in by occupiers or intending occupiers in order to regain, by violence, properties which are occupied by squatters. We are not even attacking the violence principle with this amendment, much as I would like to, but we say that we should at least see to it that these persons who are doing the dirty work should be licensed by the local authorities and that there should be some control over their behaviour and the way in which they pursue their occupation. In addition, the Secretary of State should have the power to control the way in which the local authorities operate such a register. I hope that the Government will feel that this is not in any way a wrecking amendment but is a positive contribution to a difficult concept in the Bill. I beg to move.
Lord Fraser of Carmyllie: My Lords, at the Committee stage we had an interesting debate on the context of these provisions, which are set in the Criminal Law Act 1977. That context should be recalled.
"Violence" in this context includes violence to property, such as breaking a window. The fact that the would-be entrant is the owner of the property or is acting on his behalf does not constitute lawful authority. This enables squatters lawfully to exclude people from

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their own property which they require for their own use as a home. Our view is that we should not be prepared to tolerate this situation, and Clause 67 also is intended to exclude protected intending occupiers and those acting on their behalf from the scope of the offence provided for in the 1977 Act. However, they will remain fully subject to the ordinary law of the land, and if they commit assaults on, or wound, squatters or break the criminal law in any other way, they can be dealt with in the same way as anyone else.
Accordingly, our view is that the first of the amendments moved by the noble Lord is redundant. Further, it introduces a rather odd test of whether violence is necessary. A more usual consideration might be whether it is both reasonable and proportionate in the circumstances. Whether something is necessary depends upon what one hopes to achieve. In order to open the entrance, for example, to a particularly well defended squat, it might conceivably be necessary to take seriously violent action when, from an otherwise objective standard, that would clearly appear to be manifestly unreasonable. The amendment therefore does not achieve the additional limitation on the use of violence which I understand is the noble Lord's intention.
As to the other amendments, I am not necessarily opposed to the use of private bailiffs, as the noble Lord may be. However, I am not clear whether he is aware that one of the effects of his amendments would be to make their use compulsory in all cases where a displaced residential occupier or a protected intending occupier is not able or willing to act in person and alone since the only persons permitted to act on his behalf would be those registered to do so with the local authority. If a displaced residential occupier or a protected intending occupier were either too frail or too sensible to confront squatters by himself, he might reasonably enough call on the services of family friends or a solicitor in order to require the squatters to leave. Under the provisions of the amendments such an individual would not be able to do so but would be permitted only to call on the services of a private bailiff registered by the local authority. Whatever else the noble Lord may wish to do in restricting violence, I cannot believe that he wishes to make such provision.
We are not convinced that there is any evidence that the existing provisions of the Criminal Law Act 1977 are abused or that displaced residential occupiers employ "heavies" to assault squatters while lawfully breaking into premises. We have no reason to suppose that by extending the legal protection of those occupiers against squatters we will be encouraging the use of thuggery or bully-boy tactics. We are at one with the noble Lord in rejecting that. I can only say that if there are any private bailiffs who believe that that is what we are intent on doing, and that they will be exempt from the ordinary law of the land, they will soon learn their mistake.
Lord McIntosh of Haringey: My Lords, the Minister makes a number of interesting points. He will recall that as recently as the Committee stage of the Bill, we sought to restrict the violence to that which was

1502
needed. Such an amendment was rejected by the Government. Therefore, the criticism that he made about "necessary violence" being an inadequate definition arises only because the Minister rejected what he now proposes.
As to the wider issue, I used the word "thugs" and the Minister used the word "heavies". I do not know that I can see a profound distinction between them. But the history of the regulation of private bailiffs is not confined to this Bill. I recall from my days of being responsible from these Benches for environmental matters that all attempts that were made by the Opposition to secure regulation of private bailiffs were resisted by the Government. They were resisted not for the reasons that the Minister gives now, but partly because they rejected the idea that any such people existed or behaved badly.
For the Minister now to suggest that the law is adequate to deal with bad behaviour on the part of these "heavies", these private bailiffs, flies in the face of experience—at any rate in my part of North London, I remember as a local councillor having personally to sit, and having to bring my sons to sit with me, on the doorstep of a house where the occupants were not squatters at all but tenants who were about to be evicted illegally by a landlord who was proposing to send in the heavies. My sons and I had physically to oppose—not violently, but by being there—the prospect of those heavies coming in. The law was called. The law did not turn up. The law is not adequate for these purposes, and a licensing system is necessary. At some stage we will have to achieve that.
I accept that my amendments may be defective in detail. On that basis I shall be withdrawing them. But I do not accept the arguments that the Minister has used in opposing them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.15 p.m.
[Amendments Nos. 117B and 117C not moved.]
Clause 68 [Adverse occupation of residential premises]:
[Amendment No. 117Dnot moved. ]
Clause 69 [Protected intending occupiers: supplementary provisions]:
[Amendment No. 117E not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117F:
Page 55, line 11, leave out ("specifies") and insert ("states").
The noble and learned Lord said: My Lords, this is purely a drafting amendment. If any noble Lords wish me to elaborate upon it I shall do so. I beg to move.
On Question, amendment agreed to.
[Amendment No. 117G not moved. ]
Clause 70 [Interim possession orders: false or misleading statements]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117H:
Page 56, line 49, at end insert:
("( ) A person commits an offence if, for the purpose of resisting the making of an interim possession order, he—

(a) makes a statement which he knows to be false or misleading in a material particular; or

(b) recklessly makes a statement which is false or misleading in a material particular.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 117H, perhaps I may also speak to Amendment No. 117J.
These amendments take account of the requirements of the civil part of the new squatting procedure. At an earlier stage I hope that I satisfactorily explained the interrelationship between the criminal provisions which are provided for in the Bill and at the same time the civil procedure that it is proposed to introduce which does not itself form part of the Bill but which will be introduced by amendment to the Rules of Court.
As I explained at an earlier stage, my noble and learned friend the Lord Chancellor is currently finalising the details of the procedure for making interim possession orders and I understand that the public consultation paper containing these draft rules will be issued shortly.
Clause 70 currently makes it an offence for someone who is applying for an interim possession order to make any false or misleading statement to the court. My noble and learned friend is considering modifications which would provide an opportunity for legitimate occupiers in limited circumstances to make representations against the making of the order. It is in contemplation of such prospective change that these amendments are made. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117J:
Page 57, line 17, leave out ("for obtaining the order").
On Question, amendment agreed to.
Clause 71 [Interim possession orders: failure to comply an offence]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117K:
Page 57, leave out lines 23 to 29 and insert:
("(2) Subject to subsection (2A), a person who is present on the premises as a trespasser at any time during the currency of the order commits an offence.

(2A) No offence under subsection (2) is committed by a person if—

(a) he leaves the premises within 24 hours of the time of service of the order and does not return; or

(b) a copy of the order was not fixed to the premises in accordance with rules of court.

(2B) A person who was in occupation of the premises at the time of service of the order but leaves them commits an offence if he re-enters the premises as a trespasser or attempts to do so after the expiry of the order but within the period of one year beginning with the day on which it was served.").

The noble and learned Lord said: My Lords, it will be seen that the Government have tabled two amendments to Clause 71, and one of them is starred. As noble Lords may have realised, the effect of these amendments is similar to that of an Opposition amendment, Amendment No. 230, in another place, which in the event was not called. They will make it an offence for anyone to trespass on premises which are subject to an interim possession order, provided that a notice to that

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effect has been posted in accordance with the rules of court. As Clause 71 is currently drafted, the offence applies only to those in occupation of the premises at the time the interim possession order is served.
On reflection, we saw a difficulty with the existing offence in Clause 71, which is that it would not cover the situation where squatters leave premises in obedience to an interim possession order but pass the keys on to another group of squatters who enter after the interim possession order has been served. That second group of squatters would then not be subject to the interim possession order and would not be guilty of any offence. The lawful owner or occupier of the property would then have to start proceedings all over again. That would clearly not be right, and the amendment will ensure that the property is protected against all trespassers during the currency of an interim order.
Because of the amendment we propose to make to the offence in Clause 71(2), we can dispense with the definition of who is subject to an interim possession order in subsection (4) and the presumption in subsection (5) that a person found on the premises within a month of service of the order is subject to the order. However, in order to preserve the full scope of the offence it is necessary to insert a new subsection (4), which will provide that those in occupation of the premises when an interim possession order is served are to be treated for the purposes of this section as trespassers—that is to say, they must leave within 24 hours or be guilty of an offence.
If this new subsection were not inserted it might be possible for some squatters to frustrate the purposes of the new procedure by claiming to have leases or to be licensees. Under our proposals, squatters will have the right to a full hearing of the case, but only after they have left the premises. It will not be open to them to disobey an interim possession order and they will be guilty of an offence if they do so. I beg to move.
Lord McIntosh of Haringey: My Lords, these seem such obvious ways for squatters to get round the legislation that it is almost incredible to have reached Report stage in the second Chamber before the department and the Government have discovered these difficulties—unless the idea that squatters would have been able to hand over the keys to somebody else and the proceedings would have to be started over again was discovered at the last minute. It beggars belief.
What assurance do we have that such last minute recognition of rather fundamental flaws in the legislation are the last of the flaws that remain to be discovered?
Lord Fraser of Carmyllie: My Lords, with the leave of the House perhaps I may say that the noble Lord describes these as fundamental flaws. I do not accept that definition. I suggest to him that we have properly at this stage in the Bill tidied up some detail. We have ensured that if there are particular circumstances in which the purpose of these clauses, which I should have thought would be generally welcomed, were evaded, we can take steps to eliminate them.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117L:
Page 57, leave out lines 33 to 38 and insert:
("(4) A person who is in occupation of the premises at the time of service of the order shall be treated for the purposes of this section as being present as a trespasser.").
On Question, amendment agreed to.
Lord Annaly: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Education Bill [H.L.]
Returned from the Commons agreed to with amendment; and with a privilege amendments; the amendments ordered to be printed.
House adjourned at twenty-four minutes past eleven o'clock.