Lords Sitting of 11 July 1994

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

The Lord Chancellor: Leave of Absence
2.37 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I am to receive Her Majesty The Queen at the Royal Courts of Justice where she is to open the new East Wing in the afternoon of Wednesday 13th July.
Accordingly, I trust that the House will grant me leave of absence for Wednesday 13th July.

Third World: Reproductive Health Services
Viscount Craigavon Viscount Craigavon asked Her Majesty's Government:
Whether they will give higher priority to the need for reproductive health services in the third world, particularly in view of the forthcoming 10-yearly United Nations International Conference on Population and Development.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, today is World Population Day. I am pleased to announce the second phase of our Children by Choice, Not Chance initiative begun in 1991. We expect to commit £100 million over the next two years to family planning and reproductive health programmes overseas. This commitment will fund at least 50 new projects increasing contraceptive choices for women and men and improving access to family planning.
Viscount Craigavon: My Lords, I am very grateful to the Minister for that Answer. In particular, I congratulate her on the substantial increase that she has announced. Does the noble Baroness agree that that adds to her authority even more to persuade our European colleagues to be even more intent on giving money towards population activities, and also as regards the UN Cairo conference on population and develop-ment? May we have some kind of assurance that the delivery of these additional services will actually meet the needs of those who most require them?
Baroness Chalker of Wallasey: My Lords, I thank the noble Viscount for his comments. We are most concerned to strengthen the resolve of others to follow the European Development Council resolution of 1992 to give more help where that is so badly needed. I can assure the noble Viscount that we shall be able to deliver
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on our programme because we now have resource centres which are so managed to produce greater flexibility to deliver and meet the needs of people in the developing world so that they gain access to advice in good time and also to give all the help they need.
Baroness Gardner of Parkes: My Lords, will my noble friend the Minister confirm that population is also linked to the fact that the people of these countries feel that they require a lot of children as an insurance for the future? The ODA, with the NGOs, works to improve the health and survival of those children. Does my noble friend agree that that is yet another way of helping to solve the problem?
Baroness Chalker of Wallasey: My Lords, I am grateful to my noble friend. She is absolutely right that the ability to give nutritional assistance to young children is fundamental to persuading women of the sense of spacing their children and not constantly to have children in order to replace those who die through nutritional deprivation. We shall work with the non-governmental organisations to make sure that that is a positive feature of the programme.
Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that I support what she is doing, but can she assure me that the West is not being hypocritical in this matter—
Noble Lords: Oh!
Lord Stoddart of Swindon: Wait for it!—bearing in mind that people in the industrialised and advanced countries consume 10 times as much of the world's resources as the people in the underdeveloped countries? Are we quite sure that we are not encouraging, by in vitro methods, a higher population growth in Western countries while insisting that third world countries have a lower population growth?
Baroness Chalker of Wallasey: My Lords, one needs to get this matter into proportion. In no way will I be hypocritical on this too important subject. I can tell the noble Lord that 90 per cent. of the population growth in the coming 25 years will be in the developing world; 5 per cent. will be in the developed world. Therefore there is a very great difference in the proportions. But we need to give men and women choice about when they have their children and how they space them. That is exactly what they are asking of us, the donors. We have to have a programme that makes not only accessibility but affordability and availability the watchwords in what we do as regards population development.
Lord Renton: My Lords, is my noble friend aware that the choice which she has mentioned is frustrated? In some countries population growth is caused to a great extent by poverty because the people concerned cannot afford to buy contraceptives. Can my noble friend say what steps have been and are being taken in order to attempt to solve that problem?
Baroness Chalker of Wallasey: My Lords, my noble friend is absolutely right that where there is great

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poverty there is obviously family demand for more children to help the elderly members of the family in their later years. But we have found that by making all the social sector programmes work together—that is to say, literacy, adult literacy and general education availability —and where there is increasing prosperity in a country like Bangladesh, more women and men are asking for contraceptive help and advice. In fact, the birthrate is decreasing gradually. So one has to tackle all the problems at the same time, but one also has to inform and educate that the resources will not go round unless there is some restraint on population growth.
Lord Tordoff: My Lords, to reinforce what the Minister has just said about choice for men and women, does she agree that providing choice for women is most important in many areas? Is not a fundamental part of that to improve the literacy and educational standards of women in developing countries?
Baroness Chalker of Wallasey: My Lords, literacy and adult literacy have been shown in South-East Asia to be of fundamental importance to this whole question, but I ask the noble Lord not to believe that it should all be left to women. This morning at the Royal Society I was asked about the re-education of men. Although I would not attempt to undertake that, I believe that it is right for couples together to make choices about when to have children and the spacing between their children.
Baroness Elles: My Lords, while recognising the breadth of my noble friend's wisdom on this matter, will she concede that control of population does not necessarily mean economic growth? There have been several instances, such as Hong Kong and India, where there has been phenomenal economic and population growth—both countries that were less developed. Therefore, the one does not necessarily correlate with the other.
Baroness Chalker of Wallasey: My Lords, I think that my noble friend will be aware that I never speak of "population control". I do not believe that it is right. I do not believe that there should be coercion under any circumstances. In many countries where there has been economic growth one finds couples, particularly the women, wishing to make the choice to have fewer children and to space them. It is not a question of economic growth first and of re-education about family size second: the two go very much together.
Lord Rea: My Lords, while we fully appreciate the urgency of getting contraceptive supplies to those couples who want them but cannot afford them or cannot get them, does the Minister agree that that should not be at the expense of long-term development assistance to less developed countries? Does she agree that the stabilisation of the world's population is very much dependent, as has already been implied, on women's literacy and a low infant mortality rate which, in their turn, lead to the choice to have smaller families? Is not the Minister worried that the structural adjustment programmes (which have been imposed by the IMF and the World Bank) have so far neglected the social
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development of countries with the result that health and education, especially of poor people in Africa, have deteriorated in the past decade, thus acting precisely against the very development which would most help to limit population growth?
Baroness Chalker of Wallesey: My Lords, it is quite wrong of the noble Lord to try to divide long-term development assistance from the essential advice and help which is being asked for by over 100 million couples in the developing world. The very fact that so many now want contraceptive help is a good sign as far as their resources are concerned. Long-term development assistance goes hand in hand with assistance for planning more stable economies and happier families in the developing world.

Mr. Mordechai Vanunu
2.46 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
What developments there have been in efforts to secure the release from long-term solitary confine-ment of Mr. Mordechai Vanunu since Baroness Chalker of Wallasey's answers to questions on 7th February (col. W.A. 108).
Baroness Chalker of Wallasey: My Lords, as I explained in my reply of 7th February, we have no formal standing to intervene. There is no evidence of any illegality in the UK and Mr. Vanunu appears to have been treated in accordance with the normal judicial process in Israel. Nevertheless, on humanitarian grounds we have raised with the Israelis the length of Mr. Vanunu's solitary confinement.
Lord Jenkins of Putney: My Lords, I congratulate the Minister on having done that. Is it not the case that there are grave doubts about the manner of Mr. Vanunu's arrest and the nature of his trial? Is it not a fact that solitary confinement over a long period of time is known to be inhumane and is not indulged in by civilised nations? Will the noble Baroness join me in believing that many of us are gravely disappointed in the Israeli Government for failing to recognise those facts? Is she aware that Amnesty International has recently joined the campaign to obtain the release of this man from his arduous and long-term imprisonment?
Baroness Chalker of Wallasey: My Lords, I understand that following an Israeli internal review last July, there are improvements in the conditions under which Mr. Vanunu is held. He is held in solitary confinement because it is said that he would reveal further information if he were released, and for his own safety. I have had a report on the improved conditions under which he is held and they are quite substantial. We cannot comment on the way in which Mr. Vanunu was arrested, but there is no evidence that any UK law was broken at the time of his departure from this country. This is a matter for the Israeli authorities, not for us.
Lord Avebury: My Lords, is the Minister aware that the Israeli authorities sent us a note on the conditions under which people like Mr. Vanunu are held in their prison system, that we tried to get verification from Mr. Vanunu himself via the Israeli ambassador that those conditions were being observed, and that following two letters to him, we did not receive a reply? We do not know whether that was because the letters did not reach him or because he was unwilling to communicate with the outside world. Will not the Minister take the Israeli authorities' word for it that the conditions that they say are being observed in respect of Mr. Vanunu's detention are in fact operating, but ask whether somebody can go to see him to verify that on the spot?
Baroness Chalker of Wallasey: My Lords, I am informed that Mr. Vanunu has a cell larger than the standard size in Israel, with an adjoining lavatory and shower. He has radio, television, video and a Walkman tape player. He receives books and newspapers without limitation. He can spend time out of doors daily. His lawyer may visit him in private at any time. His family can visit every two weeks. He is permitted visits by a member of the clergy. If that is so, we should be able to verify it through those people who are allowed to visit. I understand that when the Israeli Minister of Justice visited Mr. Vanunu in his cell, Mr. Vanunu made no complaints about the conditions of his detention.
Lord Molloy: My Lords, is the Minister aware that that one person—Mordechai Vanunu—has received remarkable attention, for which I believe the noble Baroness should be thanked and congratulated? I have kept in touch with people who know Mr. Vanunu and what he has been going through. They are of the opinion that the British Government's intervention has made a tremendous difference to what he has been going through and led to a more civilised form of imprisonment. While I thank the Minister for what she has done, may I ask also that she will continue the good work so that justice will ultimately prevail?
Baroness Chalker of Wallasey: My Lords, I thank the noble Lord for what he has said. We shall continue to watch what is going on, but I must make your Lordships aware that we have no role in this except to ensure that human rights are observed.
Lord Cocks of Hartcliffe: My Lords, may I repeat the Question to the Minister that I asked on 20th May 1992? Have the Government yet received any representation from my noble friend Lord Jenkins of Putney for the posthumous rehabilitation and pardon of Dr. Klaus Fuchs and Dr. Alan Nunn May?
Baroness Chalker of Wallasey: My Lords, not to the best of my knowledge.
Baroness Blacks tone: My Lords, in answer to the Question asked of the Minister by my noble friend Lord Jenkins of Putney on 7th February, the Minister indicated that this is a serious matter. Will she tell the House whether the discussions with the Israeli Government to which she referred have taken place since then, or is she referring to the informal discussions which took place before that Question was answered?
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What kind of response have the Government had from the Israeli Government in those discussions since the very long period of solitary confinement involved here raises human rights issues?
Baroness Chalker of Wallasey: My Lords, I accept that there is concern about the very long period of solitary confinement but, as 1 commented earlier, there are reasons, including Mr. Vanunu's own safety, why that has been done. We last raised the matter with the justice ministry in 1993. As I said earlier, we have no locus to intervene, but I know that a member of our embassy in Tel Aviv is in regular contact with the justice ministry, and has been since I answered the last Question to which the noble Baroness referred. We are well aware that there is good reason for Mr. Vanunu to remain in solitary confinement.

Roadworks: Motorway Coning
2.53 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
What progress has been made in fulfilment of the Prime Minister's pledge of 22nd July 1991, as part of the Citizen's Charter, to end the coning off of miles of motorway.
The Parliamentary Under-Secretary of State., Department of Transport (Lord Mackay of Ardbrecknish): My Lords, the new Highways Agency has as one of its aims in the Road User's Charter to minimise roadwork construction by restricting the length of coning allowed and the minimum distance between sites. It has set itself a target to keep 93 per cent. of lane miles available on each motorway route and 95 per cent. of the total motorway network available at all times.
Lord Jay: My Lords, although there may be a target,, has the Minister noticed that if one judges by the naked eye rather than ministerial pronouncements, there seem to be just as many of those cones or bollards about as; there were when the Prime Minister made his statement? Has he also observed that, in the past month, in defiance of all the Prime Minister's best efforts, a new outbreak of those objects has occurred even on Westminster Bridge and in Parliament Square?
Lord Mackay of Ardbrecknish: My Lords, the ministerial eye and the statistics accord in this regard. In that regard, as the noble Lord, Lord Jay, has indicated, the Highways Agency is still a little short of reaching its 95 per cent. target. Indeed, as I speak, 93 per cent of the total number of kilometres or—dare I say this in case I annoy any one of your Lordships' House? —miles are available. So we are a little short of the target; but we are working towards it. One of the problems of having motorways which are used extensively and upon which people want to see improvements is that there is no way round doing work on motorways. The important point is to minimise the delays and to ensure that the coning is done sensibly.
Lady Saltoun of Abernethy: My Lords, I keep passing notices among the cones which says, "Cones Hotline" and gives a telephone number. Upon what occasion am I supposed to ring that telephone number?
Lord Mackay of Ardbrecknish: My Lords, I would advise the noble Lady not to telephone every time she passes a cone; her phone bill might be rather expensive. The notice is there so that if the travelling public sees things that give them cause for complaint, or want to know more about what is happening, they can telephone the cones hotline. There have been about 6,000 calls, and many of those are pursued via the Department of Transport's regional offices, then via the agent or contractor, to ensure that if there is some problem with the cones that problem can be put right to allow the traffic to flow as smoothly as possible.
Lord Orr-Ewing: My Lords, has the Minister noticed the message which is written in large letters which says, 'To help motorists we have closed one lane"? I wonder whether my noble friend can stop two lanes being closed to help motorists even further. That notice is on the main route to London airport where it is essential that every conceivable part of every lane is open.
Lord Mackay of Ardbrecknish: My Lords, I am probably more aware than many in your Lordships' House of the cones on the route to London airport. I am not sure where that helpful message appears, but it may be because one of the systems that the Department of Transport and the Highways Agency have devised to help is that instead of closing two lanes of a three-lane motorway and hard shoulder the lanes are narrowed so that the motorways can be kept as two or three-lane motorways with narrower lanes. That may be what the notice alludes to.
Lord Hailsham of Saint Marylebone: My Lords, is not the message to which my noble friend drew attention to help oncoming traffic, the whole of whose half of the motorway is blocked?
Lord Mackay of Ardbrecknish: My Lords, it rather depends upon the circumstances. As my noble and learned friend points out, the traffic coming the other way often has to come on to one's part of the motorway so that work may be done on the opposite carriageway. I believe that the whole House will appreciate that while coning on motorways, or any other road, is annoying, especially if one is held up in the traffic, it is necessary to keep the motorways up to date and their surfaces in good order.
Lord Northbourne: My Lords, can the Minister confirm that the lane rental programme is applied by the Department of Transport in all cases?
Lord Mackay of Ardbrecknish: My Lords, yes, I can. The charter mentioned in the original Question and Answer sets out where we should get to by now in the lane rental programme. It suggested that we should aim at about two-thirds of road projects being by lane rental. I am happy to say that, bar a very few, almost every contract is now on a lane rental basis. That has improved
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the situation greatly because it means that if a contractor completes the job faster—as many now do—he receives a bonus, and if he exceeds the date specified, then he has to pay lane rental. That appears to have concentrated minds, as it was intended to do.
Lord Clinton-Davis: My Lords, is the Minister aware that the cones have some advantages, particularly for some of my grandchildren? I persuade them to count the cones, and the numbers are reaching astronomical proportions at the present time. Are not the number and frequency of the cones in direct proportion to the serious state of the erosion of our motorways over the years? Is not there a strong case now for carrying out an inquiry into how those motorways were constructed in order to avoid problems arising with new construction in the future?
Lord Mackay of Ardbrecknish: My Lords, I am delighted to hear that the cones have at least the value of helping the noble Lord's grandchildren with their arithmetic. However, one of my noble friends beside me has suggested that they will fall asleep—as is perhaps the intention—long before they reach the end of the line of cones. Approximately £650 million per year is spent on the maintenance of roads and bridges in our system. Many motorways must cope with traffic densities far in excess of those for which they were planned, which means that the original design criteria have become less than adequate. Considerable modernisation work has had to be done in certain areas not only to strengthen the beds of the motorways but to resurface them.
Lord Geddes: My Lords, can my noble friend encourage the powers that be at least to explain why a motorway must be coned off? It is wonderful what human nature can put up with when there is an explanation.
Lord Mackay of Ardbrecknish: My Lords, I appreciate my noble friend's point. In most cases, the work that is being carried out is obvious. However, I agree that we should endeavour to erect a brief explanation of the work that is proceeding. That is especially important to motorists when passing roadworks where at the time no work appears to be taking place.
Lord Bruce of Donington: Does the Minister agree that the nature of his replies indicates that in this field, as in so many others in which the Government have powers, it is wise to be economical with the use of pledges?
Lord Mackay of Ardbrecknish: My Lords, no, I do not believe that for one moment. As I explained, the pledge on lane rentals has been delivered more than abundantly because almost all programmes are carried out by the lane rental procedure. I do not believe that we have been economical with anything; we are trying to ensure that the public knows why roadworks are being carried out.

Spain: Protection of Tourists against Crime
3.2 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they were consulted by the Spanish authorities about new measures to protect foreign tourists from crime in popular resorts in Spain.
Baroness Chalker of Wallasey: My Lords, there is no need for consultation on routine matters of security. The Spanish authorities take these measure annually to protect tourists from crime in the popular resorts of Spain. The measures, which were introduced in 1989, involve the transfer of some 3,000 police officers from the inland area of the mainland to the main tourist areas.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that Answer. Are not these measures, which were announced last year, special measures, including the use of many more police officers? Is not this good news for British holiday-makers and for the consular officers who must cope with many of the problems arising from robbed British tourists? Will the British and Spanish Governments consider in a few months time whether there have been better results this year?
Baroness Chalker of Wallasey: My Lords, this is simply a continuation of the 1989 plan to protect foreign tourists. The police officers are in the Balearic Islands, the Canary Islands and on the mainland of Spain. Indeed, the exercise has been successful, as the immediate former consular officer from Malaga told me only this morning. Our embassy in Madrid and the consulates throughout Spain keep in close touch with the police and the Spanish authorities and they will continue to do so. The situation appears to be improving year by year and that must continue.
Baroness Blackstone: My Lords, can the Minister tell the House what the charges are for replacing stolen passports in consulates in Spain? Do those charges cover the costs? If not, is not that a matter that should be looked into?
Baroness Chalker of Wallasey: My Lords, without notice of the specific point, I cannot say with certainty what the charges are. However, they must cover their costs, which is a matter that we have followed up year by year. The consulates try to ensure that people take action which will prevent them having their passports stolen. It is remarkable how careless people can be: if they were more careful at the beginning they would not incur the cost of replacement.

Humber Bridge Bill [H.L.]
3.5 p.m.
Read a third time, and passed, and sent to the Commons.

Drug Trafficking Bill [H.L.]
Report received.

Criminal Justice and Public Order Bill
3.6 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 72[Power of local authority to direct unauthorised campers to leave land]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 118:
Page 58, line 6, at end insert:
("( ) and there is a site or sites available within that authority's area at which such persons may lawfully reside in their vehicle or vehicles.").
The noble Lord said: My Lords, in moving Amendment No. 118, I shall speak to Amendments Nos. 119 and 120. Clause 72, as it now stands, creates a new criminal offence; that is, unauthorised camping in a vehicle on land after notice of a direction to leave. It matters not that those residing in the vehicles have nowhere to which they can lawfully go. They must move if they are not to become criminals. The purpose of these amendments is to ensure that no direction may be made which does not specify a site to which those subject to the direction would be able to remove themselves and to ensure that no offence will be committed unless such a site is available.
The underlying principle that the amendments embody is not new. It has been reflected in the law for a quarter of a century. Under the Caravan Sites Act 1968, the criminal offence of unauthorised camping can be committed only in a designated area. Unauthorised camping in an area which is not designated is not a criminal offence. A designated area is one in which the Minister has decided that there are adequate camping sites for those residing in or resorting to the area. Thus the rationale is that unauthorised camping in such an area could properly be made a criminal offence because resort could be had lawfully to an available site. In areas which are not designated, unauthorised camping is not a criminal offence because, ex hypothesi, sufficient sites are not available for lawful camping. Therefore, the principle underlying that Act is that no man shall be made a criminal because he has nowhere lawfully to rest. That principle is a simple matter of common humanity and for that reason alone it should be maintained.
Two other considerations reinforce it. First, to make a man a criminal because he fails to move his family and himself when he has nowhere to which he may lawfully

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go will devalue the criminal law. A person in that position is more in need of assistance than prosecution. It will not enhance respect for the criminal law to treat such practical problems as the occasion of a criminal offence. Secondly, to force a man to move himself and his family when he has nowhere to which he may lawfully go will mean merely that he must camp unlawfully somewhere else. Far from the law helping to solve any problem of unauthorised camping, it will merely transfer it to another location at considerable public expense.
In Committee, the noble Earl was candid about the consequences when he was asked about what would happen to such persons in practice. All he could say was that:
"they will camp on bits of surplus highway land and other unoccupied or derelict land for short periods and then they will move on".—[Official Report, 7/6/94; col. 1122.]
In other words, the effect of having a criminal offence of unauthorised camping when a person has nowhere else to go will not help to solve any problem of unauthorised camping; it will merely transfer it elsewhere at considerable public expense and in defiance of common humanity.
I ask what are the reasons given by the Government for refusing to accept the amendments. In Committee the noble Earl said:
"We entirely agree that the lack of alternative accommodation for unauthorised campers must be a factor in an authority's decision whether or not it should evict those people. But there may be other equally important factors which it has to consider: an encampment may cause an intolerable nuisance to the landowner and the local community; it may create a public health nuisance; or it may constitute a hazard to traffic. These amendments pay no regard to those factors. I do not think it is reasonable that a local authority should be impotent to evict such encampments on the grounds that an alternative site in the locality cannot be identified".—[Official Report, 7/6/94, col.1121.]
With respect, the noble Earl's reasoning does not begin to stand up to examination. If unauthorised camping creates a nuisance or obstructs the highway, a local authority already has adequate powers to deal with those matters. In the case of highways, will the noble Earl confirm that Section 130 of the Highways Act imposes a duty on the highway authority and there is a power for every other council to assert and protect the rights of the public to the use and enjoyment of any highway, including any roadside waste which forms part of it? Does the noble Earl suggest that the authorities have insufficient legal means to achieve that objective? Will he confirm that such authorities may not only obtain an injunction to restrain but may also prosecute any person who obstructs the highway or causes any other danger or nuisance to users of it? Why are such powers not adequate?
In the case of other land, the noble Earl's reasoning is not even accepted, as I understand it, by the Government of which he is a member. Encampments may cause a nuisance or may damage amenity whether or not the landowner has consented to them. Will the noble Earl confirm that the Government decided that Clause 72 should not apply to encampments which have the consent of the owner of land because adequate powers exist to deal with any nuisance or harm to amenity which might arise under the Environmental
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Protection Act 1990 and the Town and Country Planning Act of the same year, as the Government stated in their own consultation paper?
Will the Minister confirm also that the powers under those Acts are also available to a local authority whether or not the encampment is authorised by the landowner? Will he explain why he now says that the legislation which the Government promoted in 1990 to deal with nuisances and harm to amenity is defective? For example, if the campers create any nuisance on land, a local authority can serve an abatement notice, non-compliance with which can lead to a level 5 fine. Indeed, that is a fine which is more severe than that proposed under Clause 72 of the Bill. What is inadequate about that?
The Government know perfectly well that local authorities have adequate powers to deal with any nuisance or harm to amenity which an encampment may cause. Moreover, any problem will not be solved merely by requiring persons who create a nuisance to move on. That will merely move the nuisance created elsewhere.
The fact remains that the offences which Parliament is being asked to create in this Bill are not related to any nuisance or harm to amenity. The noble Earl's previous reasons for rejecting the amendments—that they may be necessary to deal with nuisance or injury to amenity —therefore do not relate to the offence which the Bill creates. The offence is of unauthorised camping and notice can be served and a criminal offence committed even if the unauthorised encampment causes no nuisance or harm to amenity.
The Government have refused to entertain amend-ments to restrict the circumstances in which the provisions can be invoked to those in which a nuisance is caused despite the fact that the Minister said in Standing Committee in another place on 10th February:
"There is no reason why local authorities should not continue to tolerate unlawful encampments that cause no harm or nuisance".
Throughout, the noble Earl has relied on the reasonableness with which local authorities may be expected to exercise the new powers which the Bill confers and he has asserted that local authorities have a proud record of tolerance towards gypsies. I would submit that that complacency not only ignores the facts; it ignores also the pernicious tendencies which this Bill will produce.
Hitherto, tolerance may have been secured to an extent by the existence of a duty to provide adequate sites and the difficulties of taking enforcement action under the planning legislation in the context of a national policy supporting gypsy site provision. But the failure of over 60 per cent. of all authorities to comply with their statutory duties after nearly a quarter of a century demonstrates a general lack of sympathy for gypsies reflected also in the fact that 90 per cent. of all applications for planning permission by gypsies have been refused even under a national policy framework hitherto sympathetic towards them.
Whatever may have been the position previously, the likelihood is that local authorities will adopt a policy of serving such notices irrespective of whether there is a lawful site to go to and irrespective of whether there is

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any harm sufficient to justify intervention. At the very least, once some authorities pursue an aggressive use of the new powers to drive unauthorised campers out of their areas, others will respond with a similar policy if only to protect their own areas. No authority is likely to volunteer to provide a refuge for those driven out of other areas.
Similarly, outside the metropolitan areas there will be two authorities in each district which will be given powers to serve notices—the county council and the district council. It will soon become known which authorities use their powers more readily and no doubt which will gain the popularity which such action may attract locally. In practice, intolerance will drive out tolerance. A national policy has always been necessary to ensure that all authorities provide an adequate number of sites.
The reality is that the powers will be used and not left unused, even if there is no lawful site for the person to resort to in the area and even if no harm or nuisance is being created. That must surely be what the Government intend should happen by removing the need for designation if the powers are to be invoked and by not restricting the circumstances in which notices can be served under Clause 72.
I conclude with regard to Amendments Nos. 118,119 and 120 by saying that the Bill invites Parliament to create a criminal offence of unauthorised camping in a vehicle on land after notice of a direction to leave. The offence proposed is one of unauthorised camping. As such, it is not directed at any nuisance or obstruction to the highway that such camping may cause. The central justification for the amendments is that no man should be made a criminal merely for remaining where he is when he has nowhere else in the area to which he and his family may move. If he and his family create a nuisance or other harm, a local authority has power to deal with that. But he and his family should not be made criminals for staying when they have nowhere to go.
I speak briefly to the other two amendments in the grouping —Amendments Nos. 121 and 122. When a local authority has under Clause 72 directed that persons and their vehicles should remove themselves from land, under Clause 73(1) the magistrates' court has to deal with offences arising out of non-compliance with the notice. Clause 73(1) provides that the local authority can complain to the magistrates' court which in turn may make an order requiring the removal of the offending vehicle. The order may authorise the local authority to do what is necessary to remove the vehicle.
The central vice of the Government's proposal is that they are legislating for orders to remove without having the least notion to where the vehicles are to be removed. As I pointed out in Committee, there is a gaping hole in Clause 73(1). Again, I invite the noble Earl to do what he did not do in Committee; namely, to explain why that gaping hole exists. Under the Bill there is no power for the local authority to detain or store what is the property of another pending its relocation. If there is nowhere in the locality to which the vehicle can be moved, what is to be done with it?
In Committee, I sought to ask whether there was any reason why, under such an order, a local authority may
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not simply dump the vehicle in a lay-by in an adjoining district, thus moving the problem on to its neighbour. I have to observe that there came no answer to those questions from the noble Earl. However, I trust that we shall receive a response today. We propose that a vehicle should only be removed to another site in which those who reside in it may stay. I ask: where else is it sensible to put it? I beg to move.
Lord Avebury: My Lords, I should like to take up the point made by the noble Lord, Lord Irvine, in his conclusion. It is one of the most important factors that we have to consider this afternoon and one with which we failed to deal on the last occasion. We do not want to return to the situation that existed prior to 1986 which many noble Lords will remember. At that time, local authorities moved caravans from one neighbourhood to another, leaving the citizens of the neighbouring authority to pick up the pieces. We saw much of that in my former constituency of Orpington which is on the outer edges of Greater London. It was sometimes the custom to take caravans and dump them in the county of Kent. Everyone knows that that went on around the perimeter of Greater London. Local authorities had to cope with an increasing number of gypsies camping on unauthorised land in the very built-up districts of outer London. They would put the gypsies into the neighbouring county as the simplest way of getting rid of the problem. But, of course, it did not do so; it simply created additional difficulties for the authorities in the counties which had to cope with such people.
I must insist that the Minister replies to that last question. In my view, it is the key to the whole problem. If we allow gypsies to be moved from unauthorised sites and, in addition, state that magistrates may put them somewhere else, then it is our duty as one of the Houses of Parliament to say where the courts are expected to put them. If there is nowhere else within the area covered by the authority concerned, then there is no option but for that authority to take the caravans over the boundary and dump them on someone else's land. Is that really what we want? If the Minister does not have a reply, are we not entitled to put right what seems to me to be a very serious omission before the Bill leaves this place and returns to another place?
I should like to refer to a letter that the Minister kindly sent me after the previous occasion when we debated the matter. I put certain questions to him about the duties of local authorities under the legislation regarding the homeless. I asked what was to happen to people who were living on an unauthorised site who Wére removed by the police and then placed somewhere else. I asked if they then became homeless, and, if so, was the local authority then obliged to rehouse them. I referred to the consultation paper Access to Local Authority and Housing Association Tenancies.
The Minister reminded me—although I believe I referred to the matter in Committee—that the consultation paper stated that a person should not be treated as homeless if there is suitable accommodation of any sort available for him to occupy. I asked the Minister the following question. If such a person was still inside the caravan, even though it was occupying

1521
part of an unauthorised site, would he be treated as having suitable accommodation? In his reply, the Minister said that it seemed unlikely that a gypsy family who were evicted from an unauthorised site and who had nowhere lawful to place their caravan would be regarded as having suitable accommodation available. In other words, the act of removing the gypsy family from an unauthorised site is to make them homeless within the meaning of that term according to the consultation paper to which I referred. Assuming that the family had children, the local authority would then be responsible for making alternative accommodation available to them.
Is there really much point in that? The local authority causes the gypsies to be removed from an unauthorised site, knowing that there are children in the family and knowing that they will then become responsible for offering alternative accommodation to the family. That does not seem to make much sense to me. However, before we leave the matter, it is important for us to get on record from the Minister in the course of the debate that the meaning as set out in the consultation paper is the one to be applied to gypsies who have been removed from unauthorised camps. I hope that the Minister will confirm in his response that the local authority will be obliged to rehouse such a family and offer them accommodation under the terms set out in the consultation paper.
Secondly, has any attempt been made to ascertain the view of the police on the matter? For example, do they want the duty? Are they happy about having such a duty placed upon them to remove caravans from unauth-orised sites when there is nowhere else for such people to go? What consultation has the Minister undertaken with the Association of Chief Police Officers, with the Police Federation and others who will have to carry out the Government's dirty work? Do they know their duties regarding the alternative places to which such caravans are to be towed? Has any guidance been issued to the police about where those caravans are supposed to go? Are they to be put on a roadside, are they to be taken into the area of a neighbouring authority just over the boundary, or are they to put on yet another unauthorised site and thereby incur even bigger fines which obviously the gypsy family would be unable to pay? I should like to know what the police think about that aspect of the matter.
The pernicious tendencies to which the noble Lord, Lord Irvine, referred are already beginning to manifest themselves. Moreover, with the shadow of the Bill looming over the countryside, there is much evidence to show not only that evictions are already taking place under existing law but that vigilantes are also taking the law into their own hands and exercising violence against gypsies to force them to leave unauthorised camps.
I have with me a letter from Jenny Smith who is the chair of the Labour Campaign for Travellers Rights drawing my attention to a number of recent incidents. The first took place on 16th November 1993 near the Cirencester area. Travellers were attacked with CS gas and baseball bats. One man was very badly beaten around the head and was in a very dazed condition when
1522
Jenny Smith saw him that night. There were five children on that site at the time. At the beginning of April, again near Cirencester, a woman had the spokes of the wheels of her horse-drawn vehicle broken with a sledge-hammer by local people.
A further incident, also in Cirencester, involved people in balaclavas attacking a site. One woman was hospitalised after being hit around the head with an iron bar. On 30th May 1994 at Watlington near Oxford, a grandmother, a pregnant woman with a two year-old baby, three teenagers and two adult men were attacked by local vigilantes. A bus was completely destroyed by fire, all the windows of the vehicles on the site were smashed, caravan homes were extensively damaged and most of the occupants' personal possessions were ruined and destroyed. The Government have created that kind of environment by pressing forward with the Bill. It is the kind of attitude that I believe we shall see increasingly in the coming months if the legislation is enacted.
The policy that is being replaced is one of give and take where local authorities were obliged to provide accommodation for gypsies residing in their areas. In return, the gypsies accepted back in 1968 the fact that local authorities should have additional powers to move gypsies from unauthorised encampments where adequate accommodation had been provided. They did not like it, but they accepted it as part of a reasonable bargain which would give them the long-term hope that, ultimately, adequate accommodation would be provided on a network of sites throughout the country. In such circumstances, of course, it would not matter to them if these powers had been implemented.
I wish that even at this late stage I could persuade the Minister, who is a humane man, to think carefully about what the Government are doing. Do they wish to create disorder and disruption in the lives of gypsy families when we are so near to providing a complete solution that would eliminate the problem of unauthorised campers forever? I know that it is probably futile to appeal to him in this way, but I do so nevertheless in the hope that perhaps your Lordships may think that this provision should be struck out of the Bill.
3.30 p.m.
Lord Renton: My Lords, even if this group of amendments were right in principle, which I doubt and to which I shall say a word in a moment, it seems to me that they would be unworkable in practice and would indeed cause disappointment to the people who would be trying to rely upon them. Let us take this question of the local authority being required to refer the people to an unoccupied site, under the control, presumably, of the local authority. If we take a large county, like Hampshire, Norfolk, Lincolnshire or Kent, the nearest available site, on the county basis, may be many miles away and may already be full up if the people arrived there—so another site would have to be recommended.
But let us take the smaller unit—the district council, because in subsection (6) of this clause "local authority" includes a district council. Some district councils are very big. I happen to live in a very big one which stretches about 28 miles by 22 miles. I do not think there

1523
would be more than two sites available in that area. They might both be full. But there is a further factor. The clause, even as it stands, will create an extra administrative task for the local authority concerned. It will be a task which needs to be dealt with at the weekends.
If we add the ideas contained in these amendments to the opportunities under the clause then, of course, there would be very much more work to be done. Local authorities would undoubtedly have to keep some staff in offices, perhaps in different parts of the local authority. Indeed, they might have to have the assistance of the police in patrolling places where these incidents take place, or are reported by telephone to have taken place. Therefore, the proposal, however well inten-tioned, would be unworkable and could cause disappointments.
I do not think, with respect to the noble Lord who has moved the amendment and to the noble Lord, Lord Avebury, who has supported it, that the amendment is right in principle. It is especially not right in principle in relation to paragraph (c) of subsection (1). That paragraph refers to the occupation of any land without the consent of the owner. That means that if people intend to camp with their vehicles on private property and are determined to get somewhere to go, all that they need to do is to go onto any private property and when the owner protests say to the owner, "All you have to do is to telephone the local authority and they will find another site for us", but the local authority may simply be unable to do so. One could elaborate the practical problems, and indeed the points of principle that arise, but I really would not expect my noble friend Lord Ferrers to accept these amendments.
Earl Ferrers: My Lords, the Government have made it clear during the passage of this Bill, both in this House and in another place, that they accept that the problem of unauthorised camping by gypsies arises mainly because of the shortage of authorised sites. We accept also that it is desirable that gypsies should have lawful accommodation, although we differ from the noble Lord, Lord Irvine of Lairg, on the question as to how and by whom that accommodation should principally be provided in the future.
What we do not accept is that local authorities should be the bodies in question, or that they should not have adequate powers to remove unauthorised encampments of gypsies, or any other unauthorised campers for that matter, unless and until such authorised accommodation is available. The noble Lord, Lord Irvine, said again today, as he did in Committee, that the underlying philosophy of the Caravan Sites Act 1968 was that no man should be made a criminal because he had nowhere to rest lawfully. The noble Lord made a point of saying that. He mentioned it twice today. He even said that people should stay if they are doing no harm and are not causing a nuisance. I am bound to say that I thought that was the most astonishing remark to come from a lawyer. The noble Lord, Lord Irvine, is saying, in other words, that a person who sits on someone else's land or, if one extrapolated that, sits in someone else's house, may be
1524
permitted to stay there provided he is doing no harm and is not causing a nuisance. I should have thought that is one of the fundamental problems of the law of property. There is a misconception here. It has never been the case that a gypsy could regard himself as immune from prosecution for illegal camping simply because there was no alternative site for him to go to in the immediate vicinity. Under the 1968 Act, a gypsy commits an offence as soon as he camps anywhere in a designated area which is not an authorised site. It is of no significance whatsoever if all the sites are full. Under the 1968 Act that does not permit the gypsy to camp in the area on an unauthorised site. It is no argument to say, "The sites are full, I have nowhere else to go". The fact is that the law says that it is at present an offence to camp on an unauthorised site in a designated area.
The 1968 Act imposes no constraint whatever on a designated authority to use its powers of eviction. The fact is that there are many gypsies who refuse to occupy sites which are provided by local authorities. The 1968 Act recognises that, and always has done—a point which appears to have escaped the noble Lord, Lord Irvine of Lairg, today. Under the 1968 Act it is an offence for a gypsy to camp unlawfully in a designated area. Under the Government's proposals, that would no longer be the case. It would no longer be an offence to camp unlawfully in a designated area. It would not be an offence to camp—which it is now. The gypsy will only have committed an offence when he fails to move on when he is directed to do so by the local authority. The gypsy who is given no such direction would commit no offence. That is a distinct difference from the position at present.
The Government are therefore introducing no new philosophy of criminality in this area. What we are doing in these provisions is to try to find some sensible and practical ways of enabling local authorities to control unauthorised camping and to limit the nuisance and despoliation of the countryside which at present can occur and which the system of designation has failed to address.
The noble Lord, Lord Avebury, said that we were near to eliminating unauthorised camping forever. With the greatest respect to the noble Lord, I do not think that that is so. The reason the Government's provisions are necessary is that noble Lords will find, if they look at the figures, that there have been considerable changes. In 1981 there were 3,800 gypsy caravans on council sites. The number had increased by 1994 to 6,370. That is a 67 per cent. increase. There has been a 135 per cent. increase in the number of caravans on private sites. However, the number of gypsy caravans increased between 1981 and 1994 from 9,805 to 13,794, a 40 per cent. increase. Therefore, despite the fact that more sites have been made available the number of caravans has increased.
In 1978, when the provisions were introduced, fewer than 10 per cent. of gypsies were in lawful accommodation. Now, 70 per cent. of gypsies are in lawful accommodation and 10 per cent. are on tolerated sites. The fact is that the number of unauthorised campers has increased. I find it astonishing that it should

1525
be said that because the numbers have increased local authorities should have to provide the extra places and taxpayers should have to pay for them.
Both the noble Lord, Lord Irvine, and the noble Lord, Lord Avebury, were concerned about the powers to remove people. The Clause 73 power is to remove people from the land. However, in practice, vehicles are taken to redundant highway land or to council land and gypsies are invited to move them. In practice the authorities have had few problems in using the existing powers to remove vehicles, which are similar to those in Section 11 of the Caravan Sites Act 1968. Forced evictions are rare.
The noble Lord was concerned about statutory nuisance powers. The nuisance powers available to local authorities are not adequate to deal with unauthorised camping. First, the environmental health officer has to serve an abatement notice. That can be served on the unauthorised campers. But where there is any difficulty in identifying the person responsible for the nuisance it is more likely to be served on the owner or occupier, who would not have given his permission to the unauthorised campers to be on his land in the first place. If the abatement notice was served on the unauthorised campers there might be a delay of at least 21 days to allow them to submit an appeal against the notice. If the notice was ignored by the unauthorised campers they would have to be prosecuted in the magistrates' courts, entailing yet further delay. The Government's proposal would give local authorities the power to evict unauthorised campers. That is the only effective solution to unauthorised encampment which is causing an intolerable nuisance.
The noble Lord, Lord Irvine of Lairg, is right to say that the highway authority has powers to take action in the court against obstruction of the highway. Clause 72 gives a power to direct travellers to move without first going to the court.
I turn to the question of homelessness, about which the noble Lord, Lord Avebury, was concerned. Gypsies in caravans with no legal place to camp are already homeless under Part in of the Housing Act 1985. The new proposals do not change that. But gypsies have not applied to local authorities for housing, mostly because they do not want to move into housing. We expect gypsies to continue to live as nomads and to find their own sites. In the meantime local authorities will act tolerantly.
The homelessness legislation, whether in its present form or as it may be under the Government's proposed reforms, provides a safety net for homeless households. Whether a particular household is homeless depends upon the assessment by a local housing authority under the statutory criteria. My right honourable friend the Minister for Housing, Inner Cities and Construction hopes to announce before the parliamentary Recess the Government's conclusions following the consultation to which the noble Lord, Lord Avebury, referred.
The noble Lord asked me what the police think about this question. Clause 72 is a matter not for the police but for local authorities. We are not placing a duty on local authorities to evict travellers. There is no duty on them
1526
to evict travellers. That would be a matter for the discretion of the local authority and the decision will be based on the circumstances of the individual case. We expect them, and will advise them, to continue their current policy of toleration.
Lord Avebury: My Lords, perhaps I may ask the noble Earl a question. Does he mean that in those circumstances local authorities will have to bring in the police to assist them in the exercise of their duties?
3.45 p.m.
Earl Ferrers: My Lords, it will be for the local authority to tell the people to move on. If they do not move on that will be an offence and they will be taken to court as a result of that offence.
Under our proposals in the Bill, which have worried the noble Lords, Lord Irvine and Lord Avebury, so much—and unreasonably so—all principal local authorities in England and Wales will have powers to tackle unauthorised camping by anyone in their areas. We think that it is right that it should be for the local authorities to judge when it is appropriate to use the powers. I recall with a certain amount of relief, and surprise considering his speech today, that the noble Lord, Lord Irvine of Lairg, seemed content finally to accept that point when we last debated these matters on 7th June. I remind him of what he said then, when speaking to an amendment which had been tabled by my noble friend Lord Stanley of Alderley. He said that,
"a local authority, with all its knowledge of its own area and its relationships with neighbouring areas, will be in a much better position than a magistrates' court to decide whether these new powers should be invoked".—[Official Report, 7/6/94; col. 1167.]
That is also the Government's view. The Department of the Environment intends to issue advice to local authorities repeating the existing advice that they should use the new powers to evict gypsies with great care, particularly where they are encamped unobtrusively on council land, and that they should continue to look for ways to minimise nuisance, by providing, for instance, temporary emergency stopping places where gypsies can stay for short periods.
The amendments tabled by the noble Lord, Lord Irvine, have three serious disadvantages. First, they would place the whole onus on the local authority. It does not matter how much mess is being made or how much nuisance is being caused to people in the locality; under the noble Lord's amendment the local authority would be powerless to do anything without first providing a site. That is unreasonable. The unauthorised camper would be allowed to continue camping unlawfully with impunity and with no regard for the rights of others in the area.
Secondly, there would be a requirement for the local authority to provide more pitches than there are gypsies normally residing in or resorting to its area in order to meet the needs of every conceivable casual visitor to its area. That would impose an even more onerous burden on local authorities than did the 1968 Act. It would not be a sensible use of public funds.
Thirdly, the local authority would be required to direct to a particular site or sites all unauthorised

1527
campers, whether gypsies, New Age travellers, recreational caravanners or itinerant workers. I do not believe that any local authority could be expected to manage sites effectively on that basis.
The Government believe that the powers in Clauses 72 and 73 are necessary to enable local authorities to control unauthorised camping in their areas. We remain of the view that it must be left to local authorities to decide when to invoke the powers, and to the gypsies as to whether they wish to live on a site which is chosen by the local authority. For those reasons I hope that your Lordships will not agree to the amendments tabled by the noble Lord, Lord Irvine.
Lord Irvine of Lairg: My Lords, the noble Lord, Lord Renton, recognised that there may be nowhere for the gypsies to go if subject to a direction as if that were a conclusive argument against the amendments. It appears to me to be the justification for them. I am unable to see how the amendments would cause disappointment to their intended beneficiaries, because if an alternative site is not available they would have the advantage of remaining where they are. The noble Earl said that he found it surprising that a lawyer could arrive at that conclusion; namely, an entitlement in those circumstances to remain parked where they are on land which, by definition, is not their own. That portrays on the part of the noble Earl a failure to appreciate a fundamental objection of principle to the Government's proposal, namely, that it constitutes unjustifiable discrimination against those residing in vehicles.
There is no criminal offence of intentional trespass as such. The offences which the Government propose discriminate against those who trespass with a vehicle in which they reside. There is no rational ground for such discrimination. Is it, for example, to be suggested that the public interest will be better served if the same individuals were to camp unlawfully in a tent or to sleep rough? Why should individuals be subject to the criminal law for having their own mobile roof rather than trespassing under someone else's? I doubt that there is any rational basis for such discrimination.
Earl Ferrers: My Lords, perhaps I may interrupt the noble Lord, although I do not like to do so. If I were to plonk my caravan in the noble Lord's garden and proceed to sit there and do no nuisance and cause no harm, does the noble Lord really say that I have a right to stay there?
Lord Irvine of Lairg: My Lords, plainly there would be no civil right. But we are addressing whether or not persons who trespass with vehicles should be singled out and discriminated against, as I submit, by the criminal law when the tramp who sleeps rough or camps unlawfully in a tent would not.
My overall view is that the provisions are offensive to the traditional respect and protection that our country affords to minorities. In those circumstances, I desire to test the opinion of the House.
3.50 p.m.
On Question, Whether the said amendment (No. 118) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 151.

Division No.1

CONTENTS

Addington, L.

Jeger, B.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Lawrence, L.

Avebury, L.[Teller.]

Lester of Herne Hill, L.

Barnett, L.

Listowel, E.

Blackstone, B.

Llewelyn-Davies of Hastoe, B.

Bonham-Carter, L.

Longford, E.

Boston of Faversham, L.

Lovell-Davis, L.

Bottomley, L.

Mackie of Benshie, L.

Broadbridge, L.

Mallalieu, B.

Brooks of Tremorfa, L.

Mar and Kellie, E.

Bruce of Donington, L.

Mason of Barnsley, L.

Carmichael of Kelvingrove, L.

Mayhew, L.

Carter, L.

McCarthy, L.

Castle of Blackburn, B.

McIntosh of Haringey, L,

Clinton-Davis, L.

Merlyn-Rees, L.

Darcy (de Knayth), B.

Molloy, L.

David, B.

Monkswell, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L.

Peston, L.

Donaldson of Kingsbridge, L.

Peterborough, Bp.

Dormand of Easington, L.

Rea, L.

Eatwell, L.

Richard, L.

Ewing of Kirkford, L.

Robson of Kiddington, B.

Falkender, B.

Sainsbury, L.

Fitt, L.

Seear, B.

Gallacher, L.

Serota, B.

Gladwyn, L.

Shaughnessy, L

Gould of Potternewton, B.

Stallard, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

[Teller.]

Strabolgi, L.

Gregson, L.

Taylor of Blackburn, L.

Grey, E.

Thomson of Monifieth, L.

Harris of Greenwich, L.

Tordoff, L.

Haskel, L.

Turner of Camden, B.

Hilton of Eggardon, B.

Wallace of Coslany, L.

Hollis of Heigham, B.

White, B.

Howie of Troon, L.

Wigoder, L.

Hughes, L.

Williams of Elvel, L.

Irvine of Lairg, L.

Williams of Mostyn, L.

Jay, L.

NOT-CONTENTS

Aberdare, L.

Cadman, L.

Addison, V.

Campbell of Alloway, L.

Alexander of Tunis, E.

Campbell of Croy, L.

Allen of Abbeydale, L.

Carnock, L.

Allenby of Megiddo, V.

Chalker of Wallasey, B.

Annaly, L.

Charteris of Amisfield, L.

Annan, L.

Chelmsford, V.

Arran, E.

Congleton, L.

Ashbourne, L.

Courtown, E.

Astor, V.

Cox, B.

Balfour, E.

Craigavon, V.

Barber, L.

Cranborne, V.

Belhaven and Stenton, L.

Cumberlege, B.

Beloff, L.

Dacre of Glanton, L.

Blatch, B.

Davidson, V.

Blyth, L.

Dean of Harptree, L.

Boardman, L.

Denton of Wakefield, B.

Borthwick, L.

Dilhorne, V.

Boyd-Carpenter, L.

Dixon-Smith, L.

Brabazon of Tara, L.

Eden of Winton, L.

Brentford, V.

Ellenborough, L.

Brigstocke, B.

Elles, B.

Brougham and Vaux, L.

Elphinstone, L.

Bruntisfield, L.

Elton, L.

Burnham, L.

Erne, E.

Burton, L.

Faithfull, B.

Butterworth, L.

Ferrers, E.

Buxton of Alsa, L.

Fraser of Carmyllie, L.

1529

Fraser of Kilmorack, L.

Murton of Lindisfarne, L.

Gainford, L.

Nelson, E.

Gainsborough, E.

Northesk, E.

Gardner of Parkes, B.

Oppenheim-Barnes, B.

Gibson-Watt, L.

Orkney, E.

Gilmour of Craigmillar, L.

Orr-Ewing, L.

Gisborough, L.

Oxfuird, V.

Goschen, V.

Park of Monmouth, B.

Gray of Contin, L.

Pearson of Rannoch, L.

Gridley, L.

Peel, E.

Hailsham of Saint Marylebone, L.

Pender, L.

Halsbury, E.

Peyton of Yeovil, L.

Hanworth, V.

Platt of Writtle, B.

Harding of Petherton, L.

Rankeillour, L.

Harmar-Nicholls, L.

Rawlinson of Ewell, L.

Hayhoe, L.

Renton, L.

Hayter, L.

Renwick, L.

Henley, L.

Rodger of Earlsferry, L.

Holderness, L.

Roskill, L.

HolmPatrick, L.

Saltoun of Abernethy, Ly.

Howe, E.

Seccombe, B.

Hylton-Foster, B.

Selborne, E.

Ironside, L.

Shannon, E.

Jellicoe, E.

Simon, V.

Johnston of Rockport, L.

Simon of Glaisdale, L.

Kimball, L.

St. Davids, V.

Kinloss, Ly.

Stanley of Alderley, L.

Lauderdale, E.

Stedman, B.

Long, V.

Stockton, E.

Lucas, L.

Strange, B.

Lyell, L.

Strathclyde, L.

Lytton, E.

Strathmore and Kinghorne, E.

Mackay of Ardbrecknish, L.

[Teller.]

Mackay of Clashfern, L. [Lord

Sudeley, L.

Chancellor.]

Tenby, V.

Macleod of Borve, B.

Terrington, L.

Manton, L.

Thomas of Gwydir, L.

Mar, C.

Thurlow, L.

Marshall of Goring, L.

Trumpington, B.

Merrivale, L.

Tugendhat, L.

Mersey, V.

Ullswater, V. [Teller.]

Miller of Hendon, B.

Vaux of Harrowden, L.

Milverton, L.

Vivian, L.

Montgomery of Alamein, V.

Wakeham, L. [Lord Privy Seal.]

Mountevans, L.

Walton of Detchant, L.

Mountgarret, V.

Wise, L.

Mowbray and Stourton, L.

Wynford, L.

Moyne, L.

Young, B.

Munster, E.

Resolved in the negative, and amendment disagreed to accordingly.
4 p.m.
[Amendments Nos. 119 to 122 not moved. ]
Clause 75[Repeal of certain provisions relating to gipsy sites]:
[Amendment No. 122A had been withdrawn from the Marshalled List]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No, 123:
Page 60, leave out subsection (1) and insert:
("( ) Sections 10 to 12 of the Caravan Sites Act 1968 (Control of unauthorised encampments) are hereby repealed").
The noble Lord said: My Lords, Clauses 72 to 74 of the Bill can perfectly well co-exist with a continuing duty on local authorities to provide sites and the Secretary of State's power to direct them to do so. This amendment therefore is designed to ensure that the duty to provide sites continues. There are three main reasons. First, in the absence of such a duty there will be no further significant public provision of sites and the likelihood is that some existing public sites will close. Secondly, there is no realistic prospect of gypsies themselves providing sufficient sites, as the
1530
Government suggest. Thirdly, without such a duty there is no real prospect of any solution to the practical problems of site provision and unauthorised camping.
It is true to say that if the duty is repealed, local authorities will retain a power to provide sites. The noble Earl said in Committee that it would be entirely a matter for local authorities to decide whether and where to provide sites. He said that the Government did not want to see the end of provision from public funds. This is an approach which does not fit with what the Government propose or with what other Ministers say. In another place, the Minister, Mr. Maclean, said:
"we believe the time has come to call a halt to caravan site provision at public expense and, instead, to encourage gypsies to establish their own sites through the normal planning system". —[Official Report, Commons, Standing Committee B, 10/2/94; col. 709.]
That is Mr. Maclean's position. Is it the noble Earl's position? In replying to the debate on Second Reading of the Bill in your Lordships' House, the Minister of State, the noble and learned Lord, Lord Fraser of Carmyllie, said that there was now,
"a reasonable level of public provision. The steps we have taken to encourage more gypsies to establish their own sites will, we trust, make up for the shortfall".—[Official Report, 25/4/94; col. 509.]
I submit that whatever the noble Earl may believe, the Government, in truth, want public authorities to have no further role in the provision of sites. Whatever members of the Government may now say, that will be the inevitable practical consequence of their own proposals. There will be no statutory duty to make adequate provision; there will be no central grants for the capital expenditure involved; there will be no national pressure from the Government for authorities to provide an adequate number of sites, whether by means of directions or otherwise, and the incentive to provide sites in order to obtain the powers available on designation will be removed.
There are normally no votes or popularity to be had locally in providing sites. Frankly, it is often an unpopular task. There are many other pressures on the budgets of local authorities which have greater appeal. At best, any new public provision will be on a small scale compared with what has hitherto been achieved.
Any new public provision, therefore, will be wholly inadequate to meet the needs which now exist. At best, if the Bill passes in its present form, any new public provision will be on a tiny scale compared with that which has hitherto been achieved. That has been proved by experience. It was recognised by all parties in Parliament in 1968 that the existence of that power to provide sites had proved insufficient of itself. It was for that reason that a duty to exercise the powers local authorities already had was sensibly imposed by the 1968 Act.
Moreover, the noble Earl can give no convincing assurance that, in the absence of a duty on public authorities, existing public provision will not be lost, aggravating the shortfall in sites. There will be no requirement for authorities to keep existing sites open. There will be no duty to do so. If they run at a loss—as well they may—or if they are unpopular locally, as undoubtedly many are, there will be every incentive to close them. The reality will be that, in the absence of a

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duty on local authorities to provide sites, there will be no additional public provision of any significance and the likelihood is that some existing public sites will close.
What hope is there, then, of those in need of sites providing an adequate number of them? They have certainly not done so, notwithstanding the Government's encouragement and the failure of over 60 per cent. of local authorities to fulfil their duties hitherto. The Government's only attempt to support the suggestion that they may solve the problem has been to make the point that private site provision has increased at twice the rate of council site provision since 1981 —a statistic which the noble Earl mentioned in a letter to the noble Lord, Lord Avebury, and of which he was good enough to send me a copy. It is a statistic which he described as telling.
That statistic must be related to the low base rate from which it is taken. Such a statistic says absolutely nothing about the actual numbers involved. When the noble Earl comes to reply, will he confirm that, notwithstanding the failure of over 60 per cent. of all local authorities to perform their statutory duties in the period between 1981 and 1992—the period referred to in the Government's consultation paper—over 37 per cent. more sites in absolute numbers were provided by local authorities than by others. Will the Minister confirm that that figure would have been that much greater if public authorities had performed their duties as they ought? Notwithstanding the deplorable failure of public authorities to comply with the law, is it not true that public site provision has always been the main source of supply?
There can be no doubt that for many years there has been considerable encouragement for private site provision, as the noble Earl accepted in Committee. But between 1981 and 1992 the number of caravans on private sites increased by only 1,600. There is every reason to continue to encourage such provision. But many gypsies cannot afford to provide their own sites and there is little which others do to cater for them except local authorities under a duty to act.
So let us look not at the misleading statistics about the rates of increase but at what matters: namely, numbers. The simple fact remains that private site provision has only produced sites for about 150 caravans a year. In 1992, however, there were 4,500 caravans on unauthorised sites. Therefore, at the rate of private provision that has been achieved, in practice it would take about 30 years to provide enough sites merely to meet the requirement which already existed in 1992. But in fact it is likely to take far longer for such private provision to meet the need for lawful sites, if it is ever achieved, for three main reasons.
What I desire to emphasise first is how the Government's planning policies have changed, and changed adversely, to the interests of the gypsies, despite what was said by the noble Earl in Committee. I desire to take the opportunity to spell this out. Planning policies have become less accommodating so that even if a gypsy has the resources to provide a site for his
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family, or others, he will find it more difficult than it has been to do so lawfully. The rate of provision is therefore likely to reduce in any event.
The second point is that the number of separate gypsy households requiring sites is likely to increase as existing families grow up. The third point is that even this calculation assumes that there will be no loss of public provision, which is likely as the Government's proposals become law.
There is no realistic prospect that gypsies will be able to provide the necessary number of lawful sites themselves. The Government may trust to private provision to make up the present shortfall, but there is no realism about that. There is no rational basis for their trust whatsoever. If the Government take issue with that conclusion, the noble Earl should tell the House, when, if the Bill becomes law, he has been advised that an adequate number of sites for those residing in or resorting to all areas will be provided. I am bound to ask: if the Minister has had no advice, why not? If he has had advice, what has it been?
There is humbug at the heart of the Government's policy. This humbug is not simply that they must know that what they are suggesting is unrealistic: as a solution to the problem of unauthorised sites; it is also that at the same time as they suggest that private site provision is the solution on which we should rely they are making such provisions more difficult by altering national planning policies.
In Committee the noble Earl stated of private site provision:
"we want to encourage that trend The circular, Gypsy Sites and Planning … was produced".—[Official Report, 7/6/94; col. 1187.]
Noble Lords might have been forgiven for thinking that the noble Earl was suggesting that in that circular the Government had eased the difficulties of obtaining planning permission for gypsy sites. The truth is the opposite. Before the circular, as the Government's consultation paper put it,
"gypsies enjoy[ed] a privileged position in the planning system".
The avowed purpose of the circular was to remove that.
I ask the noble Earl to confirm these facts. Previously, was it not recognised that it was necessary to accept such sites, even in areas of open land where there are land use policies severely restrictive to development such as green belts and areas of outstanding natural beauty? The new circular specific-ally withdrew that advice.
Is it not the policy that as a rule it will not be appropriate to make provision for gypsy sites in such areas? That is what the circular says. Given that that is the case, I should be grateful to the noble Earl if he could explain how he came to write in the letter to the noble Lord, Lord Avebury, to which I have referred in the context of gypsy sites that,
"the circular does not change the Government's existing policy on development in the Green Belt"?
It plainly does.
Moreover, had not the Secretary of State also declared in that recent circular that,
"whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental and Green Belt policies".
Is not the likelihood of many new sites being consistent with all such development plan policies remote—particularly if businesses are to be run from the site on which their caravans are stationed as many gypsies prefer? Moreover, have the Government not now explicitly abandoned earlier advice that,
"the special need to accommodate gypsies—and the consequen-ces of not accommodating them—should be taken into account as a material consideration in reaching planning decisions"?
So is it not apparent that the Secretaries of State will no longer recognise these factors as significant in favour of the grant of permission, notwithstanding any conflict with planning policy?
Against that background, which is now patently more hostile to applications for planning permission for gypsy sites, I should be obliged if the noble Earl could explain in terms the quite extraordinary statement that he made in his letter to the noble Lord, Lord Avebury, which he allowed me the advantage of reading, that,
"we expect the Circular to encourage more private applications and thus to increase the number of permissions which are granted".
How can it possibly be the case that a less favourable national planning policy than that under which 90 per cent. of all gypsy site applications were refused will result in more planning permissions being granted?
No doubt the noble Earl may say that the Department of the Environment will look at plans to see whether regard has been had to the needs of gypsies in formulating planning policies. But is he suggesting that that department has hitherto not done so? In the absence of any duty to provide sites which stimulated allocations and plans, what assurance can be given that any greater weight will be given to gypsy needs than hitherto?
If the Secretary of State were seriously concerned to secure that gypsy needs were met in planning allocations, he would publish targets for site provision as part of his strategic planning guidance in just the same way as he publishes targets for dwelling provision for the settled community. He of course has no intention of doing any such thing. It must be obvious that plan making will not provide more sites when the Secretary of State's planning policy is more hostile; when he has withdrawn the privileged position that such sites enjoyed in the planning system—a provision which he expressly described in the consultation paper; and when the duty to provide sites is repealed. The only charitable explanation for these extraordinary suggestions and the statements emanating from the noble Earl on planning policy is that the Home Office has not read or has not understood what the Department of the Environment has published.
There is no public support for the abolition of the duty on local authorities. Faced with no such support the noble Earl said in Committee that the Government decided to proceed with their main proposals because they are committed to reducing unauthorised camping. But the fact is that without such a duty there is no real prospect of any solution to the practical problems of site provision and unauthorised camping. In the absence of such a duty there will be no further significant public provision of sites; the major source of new sites will dry up; and the likelihood is that some existing public sites
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will close. There is also no realistic prospect of gypsies themselves providing sufficient sites as the Government suggest.
The substance is that the suggestion of private site provision is a smokescreen. Had the Government wanted to encourage such provision, they would have made planning policies more accommodating to such proposals, not more hostile. In truth, what the Government rely on to deal with a social problem is the unique imposition in the area of trespass of criminal sanctions. The real effect of the legislation, which they dare not openly avow, is to make those who have no lawful place to reside in their vehicles disappear through the imposition of criminal sanctions.
The wider use of criminal sanctions for unauthorised camping makes it all the more necessary that the duty to provide sites remains and is not repealed, so that families are less likely to be made criminals because they have nowhere lawfully to live.
I now turn to Amendment No. 124. The purpose of this amendment is for the Government to retain their existing statutory powers to make grants. That power has been a key element of the public policy that has been followed over the past 15 years. It was adopted following a recommendation by Sir John Cripps in his report on gypsy accommodation.
The noble Earl said in Committee:
"The grant has been available now for over 15 years and what was intended as an incentive has turned into a dependency".—[OfficialReport, 7/6/94; col. 1188.]
The situation has never been one of avoidable addiction. It is simply one of the need for such grants. Not only are gypsy sites an unpopular competitor for capital expenditure, but their provision is likely to be unremunerative without that. As the noble Earl confirmed in Committee, it has been found to be the case that the costs of site provision have not been financed from rents and rates. Without a duty to provide sites and without financial assistance with the capital expenditure involved, the policy to provide an adequate number of sites would not have progressed to the extent that it has. Understandably, the Government took the view that the rate of grant for capital expenditure should be 100 per cent.
The grants represented a recognition of the national interest in ensuring that gypsies should be satisfactorily accommodated. In a circular that is still in force, the Secretaries of State for the Environment and for Wales stated that,
"it is in the national interest that gypsies should be satisfactorily accommodated: the total amount of the grant is therefore being found from central government voted expenditure and not piecemeal from housing investment programme allocations to individual authorities".
With respect, I think the noble Earl misunderstood in Committee my questions on this matter, so I will repeat them. Will he be good enough to reveal to the House, when the Government consider that it ceased to be in the national interest that gypsies should be satisfactorily accommodated so that one of the main reasons for making grants has disappeared? On the other hand, if the Government consider that it is still in the national

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interest that gypsies should be satisfactorily accom-modated, the noble Earl will no doubt tell the House why the Government are proposing to abolish the powers that they have to promote the national interest.
Having listened carefully to the noble Earl in Committee, I am not clear whether the Government's objection to the present power to make grants is that it is exercised and therefore costs money, or that it is not exercised enough and therefore has not cost more. Despite his statement that authorities had become dependent upon such grants, the noble Earl also thought it right to explain to the Committee that as,
"local authorities have not taken up the 100 per cent. grant which was available for these people … over the past 15 or 20 years, there is no point in continuing that provision".—[Official Report, 7/6/94; col. 1128.]
If the problem is that not enough authorities have taken advantage of the grants available, the reason and the solution are obvious. The reason is that over 60 per cent. of authorities have failed to comply with their statutory duty to provide adequate sites and accordingly have not made application for grants to assist them to do what they should have done. The solution, as was said in Committee, is for the Secretary of State to direct them to perform their duties.
The Government have complained of the cost of these grants; namely, £56 million between July 1978 and August 1992—£4 million or £5 million a year. Complaints about expenditure on that scale in respect of an important social problem are quite unconvincing. A sum of £4 million or £5 million or so a year pales into insignificance when placed against the support that the national taxpayer provides each year for social housing for the settled population of the country. Should the noble Earl refer to the cost of the grants, I would invite him to inform us of the cost to the national taxpayer of support for all forms of social housing for the settled community. For example, did not local housing authorities alone receive over £4 billion—not £4 million —in subsidy from 1991 to 1992? What proportion does the amount of grants paid on gypsy site provision bear to the total amount of support provided by the national taxpayer for all forms of social housing?
I suggest that to complain of the amount spent— though it lives unconvincingly with the proposition that the local authorities are not taking up the grant, which is some £4 million to £5 million a year—is to lose any reasonable sense of proportion. Moreover, the Government's policy is likely to lead overall to more public expenditure: in moving gypsies from place to place; on those in prison for failing to pay fines; and in having to deal with the unfortunate consequences for the children and families that the new approach will undoubtedly cause.
Under the present arrangements the Government have a discretion on how much grant, if any, to pay. If the existing amount is unjustifiable, why is it not reduced in the exercise of the Secretary of State's discretion? How can the amount that the Government have decided to spend as a matter of discretion justify repealing and wholly removing the power that they have been exercising? Do the Government not trust themselves to act sensibly?
The Government propose to repeal the power to make any grant at all. The result will be that any capital expenditure on sites by local authorities will now have to compete with other demands on their limited capital resources. It is a competition that the sites will no doubt lose in the absence of any duty to provide sites and the general unpopularity of such expenditure. Unlike other forms of social housing, there will be no power for an exchequer contribution to public provision.
I suggest to the House that the proposed repeal is the clearest possible indication that the Gavernment no longer consider that there is a national interest in the provision of adequate accommodation for gypsies. Taken with the proposed repeal of the duty to provide sites and the hardening of planning policy, it is the clearest possible indication that there is no political will to achieve any realistic solution to the practical problem of site provision.
This is a mean spirited repeal. It is a statement of the Government's determination to rid themselves of any practical responsibility for the solution of a social problem and to treat that problem as a problem only of public order. It is lamentable that the Government consider that the proper agents for the solution of social problems are ultimately the police and not the public authorities. I beg to move.
4.30 p.m.
Lord Avebury: My Lords, there is an alternative explanation for the Government's conduct. It is not that they believe that gypsies should be left to sink or swim or that they are not interested in whether or not adequate accommodation is provided throughout the country for caravans to be stationed lawfully. The. Government know what problems occur and what troubles arise with the settled population wherever there are unauthorised sites. They get masses of letters from MPs whose constituents are annoyed by the nuisance, dirt and other unsavoury aspects of unauthorised sites in their immediate neighbourhood.
Obviously, the Government believe that all gypsy families should ultimately be accommodated on authorised sites. But because of their ideology, they believe that the remainder of the task should be accomplished entirely by private enterprise and not by the local authorities. They cannot understand that if the efforts of both private enterprise and local authorities are harnessed together, completion of that task will be reached at an earlier date than otherwise would have been the case.
The Minister said that it was increasingly difficult for local authorities to find sites where they can build the larger encampments which have been common in the past. That difficulty can easily be solved. They can merely provide a smaller number of caravans on each unit, just as the gypsies themselves do. The figures for the past few years show that while local authorities have been responsible for the bulk of the provision in the whole of the period leading up to 1994, in the past few years private enterprise has made a significant contribution. Everybody should welcome the fact that it has been able to do so.

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I should like to ask a very simple question. If, contrary to the supposition of the noble Lord, Lord Irvine, the Minister believes that the sooner all gypsies are on authorised sites, the sooner the nuisance caused by unauthorised encampments will be eliminated for ever, then why not harness the efforts of both public and private authorities? It is clear that if that is done the task will be completed sooner instead of depending entirely upon the efforts of one sector or another.
The noble Earl, Lord Arran, gave me some figures on 27th June, from which it appears that the local authorities are capable of a considerable additional effort over and above what they have done in the past. The number of applications for stage 1 approval— approval in principle for gypsy site grants—received between 27th January and 4th March (a period of just over one month) was for 541 pitches whereas in the previous 18 months the applications for stage 1 approval totalled only 1,402. Those figures illustrate that the imposition of a deadline suddenly galvanised the local authorities into putting in quite a few stage 1 applications for approval in principle. From 4th March until 23rd June the local authorities continued to submit applications to proceed to stage 2 and tender for seven sites totalling 130 pitches. That is at a much higher rate than local authorities have provided in the previous four years. So they have not come to the end of their tether. They have not exhausted their ingenuity in finding suitable sites for gypsy encampments and they should be allowed to continue with that task in parallel with the private sector, so that both can make their contribution to the completion of the task.
I did a little arithmetic, making assumptions on what could happen if both sectors were to continue providing sites at the same rate as in the past. I made the further assumption also that the Government are correct in thinking that because of the changes in the structure plans arising from Circular 194, the private sector would start to make an increased contribution from 1996 onwards. I do not necessarily believe that because, when I look at what has happened to applications from gypsies for permission in recent months, particularly since the circular was issued in January 1994, I see no signs of the Government's optimism being realised.
When one looks at the bad authorities, one sees an interesting fact. The local authorities that failed to honour their obligations under the 1968 Act are the ones that are most reluctant to give permission for gypsies to develop their own sites. For example, in the region of Avon, Wiltshire provided 158 pitches, Somerset 126, Gloucestershire 102; and since its formation in 1974 Avon had provided only 16 pitches up until 1993. Some local experts believe that that is only because the Government issued the authority with a direction under Section 9 of the Caravan Sites Act 1968.
When one looks at the planning applications submitted by gypsies in relation to land in Avon, we see universal refusal. Therefore, where the local authority declines to provide sites for gypsies, they also do not allow the gypsies to develop sites for themselves. We find large areas of the country—no-go areas for gypsies —where, first, local authorities did not honour their
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obligations under the 1968 Act which are now being repealed; and, secondly, planning permission will not be granted as a result of Circular 194.
The Government may be able to help a little on this matter —they have some control over the process—if they want to uphold appeals by gypsies against the refusal to grant permission by local authorities. I was interested in another part of the Minister's letter to me, which has already been the subject of several quotations. The Minister said that 283 out of the 1,250 caravans owned by gypsies on land without planning permission were on what he called "tolerated" sites where the local planning authority is not proposing to take enforcement action to stop the gypsies using the sites for residential purposes. Out of the remaining 2,586 caravans, 641 are on tolerated sites which is usually land owned by local authorities.
Can the Minister say to what extent the Department of the Environment will uphold appeals in relation to those tolerated sites? If the gypsies own the land themselves, apply for planning permission and it is rejected by the local authority, will the department be more generous in upholding their appeals? In the case of tolerated sites, land owned by local authorities, the situation speaks for itself. If local authorities are prepared to tolerate the presence of gypsies on that land, why cannot they then grant planning permission and make the sites legal? If they could do that, there would immediately be an extra 283 plus 641 pitches—a total of 924—at the stroke of a pen which is as much as was provided by local authorities and the private sector together in two-and-a-half years.
The other matter I want to raise, which is quite interesting, is: what happens when we assume that the private sector manages to double its contribution to the provision of sites but we then also allow local authorities to continue as they have done in the past? We can extrapolate the figures for the four years between 1990 and 1994, and assume that the doubled private sector contribution comes into force only in the years 1996 onwards. The reason for that is that structure plans take a long time to amend. From the inquiries I made of various local authorities, it appears that that process is around 18 months to two years down the line. For example, in the case of Kent, it does not expect revised structure plans to incorporate the advice given in Circular 194 to come into operation before the beginning of 1996. If immediately after that the local authority starts giving planning permissions on a more generous scale than in the past, it will be a remarkable achievement. I am therefore being optimistic when I say we should assume that the private sector doubles its contribution from 1996 onwards. I am also making the assumption that we have the same contribution from the private sector as we had in the past and the growth in the gypsy population continues at the rate of 3 per cent. as it has done in the past four years.
On those rather optimistic assumptions we shall reduce the number of unauthorised caravans from 3,800 in 1994 to just under 3,000 in the year 2000. Can we really afford to do without the public sector contribution? Even if we make the optimistic assumption that local authorities continue provision at

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the same rate as in the past and the private sector contribution doubles, we are still only gradually whittling away at the backlog of unauthorised sites to the extent of something under 1,000 pitches between now and the turn of the century. We shall not reach the bottom of the pile of unauthorised encampments before around 2015 and 2020. We are therefore looking at a very long-term operation even if all the resources in the country are harnessed towards the solution of the problem. If we suddenly strike out the local authority sites and say we do not want them any more and find the assumptions made in relation to the increased contribution by the private sector are not realised, then we really are in shtook. It will be difficult to revive the contribution of the public sector when we find that gypsies are not able to obtain planning permission and that the optimistic assumptions made by the Government are not realised.
For heaven's sake let us not run the risk of being left with little provision from the private sector and only the dregs of what remains outstanding from the stages one and two applications to be completed in the public sector. If we do that we shall be storing up a legacy of trouble for the future. There will be not only the 3,800 caravans on unauthorised sites that exist at the moment; but also the 3 per cent. per annum increase of caravans arising from a natural increase in the gypsy population all coming on to the unauthorised sites, making nuisances in the neighbourhoods of settled populations and causing problems for the next generation because the children from the sites will not be properly looked after from either a health point of view or in terms of education. This is the last chance. If the Minister does not give way on this amendment or on that of my noble kinsman, which we shall discuss in a moment, we shall be storing up serious problems which our successors will live to regret.
Lord Harris of Greenwich: My Lords, I intervene briefly to urge the noble Earl to reply to a specific point made a few minutes ago by the noble Lord, Lord Irvine of Lairg; namely, the quotation from a ministerial circular saying that there is a national interest in providing accommodation for gypsies. The answer to the question is either yes or no. If the answer to the question is yes, and that remains the policy of the Government, I am bound to say that we are proceeding in an extraordinary way in being asked to pass a specific section of the Bill.
I should like to add just one point to what was said by the noble Lord, Lord Irvine, when he listed the increased public expenditure which arises as a result of this part of the Bill. I refer to the issue of the costs in relation to enforcement of this part of the Bill. There will be substantial additional expenditure by police forces throughout the country. As the noble Earl may recall, I tabled a question requiring a Written Answer asking about the number of new criminal offences being created and what discussion there had been with the Association of Chief Police Officers concerning the training and other costs in the implementation of this and other clauses in the Bill. The noble Earl indicated that discussions on this matter were still proceeding—in
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other words, apparently the Government have no idea what the increased public expenditure will be. That related only to training, but the operational costs will be very substantial.
When my noble friend Lord Avebury asked whether there had been discussions with the Association of Chief Police Officers, the noble Earl's answer was that Clause 73 would be triggered by the local authority and not by the police. Clause 73 would be triggered by action from the local authority, but the police have to be present, as the noble Earl well knows, if there is likely to be any breach of the peace. For the reason given by my noble friend when he indicated that there is already an increasing level of violence occurring now at some of these sites, it is highly likely that the costs to the police will be very substantial. Therefore, I should be grateful if the noble Earl would answer the specific question which my noble friend Lord Avebury asked him: have there been any discussions with the police on what they believe will be the increased costs which they will have to face as a result of the passage of this section of the Bill? We deserve an answer to that.
Lord Merlyn-Rees: My Lords, over the weeks I have listened to the wide discussion which has taken place about the problem of gypsies and about the problem raised in the other place many years ago concerning the need for sites provided by local authorities via government grants. As time went on, it was borne on me that in different parts of the country there is a different problem.
I want to rehearse the problem which I lived with for 30 years in inner city Leeds. When I was Secretary of State for Northern Ireland I had phone calls at 1 o'clock or 2 o'clock in the morning from councillors asking what they could do about the problem that had arisen. The issue that I put to the noble Earl is this: have the Government considered the particular problem of inner city areas where in my view, private enterprise—I have no objection if it provides sites—is unlikely to provide such sites? It does not provide much else so why it should suddenly wake up and provide sites for gypsies, I do not know.
It is an explosive issue. It was even worse at one time in the days of what was called in local authority jargon "slum clearance". At that time, as is always the way, those houses tended to be occupied by older ladies because of the demographic situation. There were the problems which arose from stealing lead flashing and that kind of thing. There was police involvement and the relatively recent problem of near riot when new houses aré built and then alongside, in a field, caravans arrive with television sets and all the rest of it.
I accept fully—and I know from my experience in Leeds—that there are genuine gypsies who have been going backwards and forwards to the fairs in the Dales for hundreds of years. But I am talking about a different problem which has arisen. The issue is this: will what the Government intend do something for these areas? I do not believe that it will. The city council provided one very good site. It was in what I used to call "my area". The council tried to provide three others in other parts of the city. But the residents of the more affluent parts

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of the city said, "Not likely; we are not having gypsy sites in our area". The problem which will arise is that there will not be private sites either.
I have risen to my feet simply to ask whether the Government are considering, with the Department of the Environment, the particular problems of inner city areas. They are different from those of Wiltshire and Avon and the problems which arise in country areas. These inner city areas have real problems. To remove the duty on local authorities to provide sites will cause real problems. I hope that the Government have considered the particular problem which arises in the area which I once represented.
4.45 p.m.
Earl Ferrers: My Lords, the noble Lord, Lord Irvine, has some difficulty in understanding why the Government were proposing to abandon a system of public site provision which apparently had alleviated the experiences of many gypsy families who had no lawful accommodation. This was the problem which was presented at Committee stage by the right reverend Prelate the Bishop of Liverpool. I believe that he encapsulated his views or characterised them, by saying that local authorities have failed to obey the requirement laid on them by law, so, in the Government's view, let us repeal the law. That was the onus of the remarks of the noble Lord, Lord Irvine of Lairg.
I would offer this alternative explanation. The Government have been looking for better and fairer ways to achieve the original objectives of the Caravan Sites Act 1986.
Lord Hailsham of Saint Marylebone: My Lords, 1968.
Earl Ferrers: My Lords, I am sorry, 1968. My noble and learned friend is perfectly correct, as usual. That Act had two objectives: the provision of adequate sites for gypsies and the control of unauthorised camping. I would be the first to say that this is not an easy issue; it is one with great social impact. That system has been in operation for some 24 years, and the fact is that levels of unauthorised camping —in terms of numbers of gypsy caravans on unauthorised sites reflected in the January counts carried out by local authorities in England and Wales—have hardly changed since then. Unauthorised camping has been virtually the same and can cause serious nuisance, distress and offence and the Government have made it clear that they must take action to control this nuisance.
I remember the right reverend Prelate the Bishop of Liverpool referring with some feeling at Committee stage to the prejudice and hatred which gypsies experience. Indeed, the noble Lord, Lord Merlyn-Rees has insinuated that this evening by the problems which he has had in an inner city area. I do not deny at all that prejudice exists—of course it does—and much of it is irrational and unjustified.
But the public disquiet about unauthorised camping cannot be attributed solely to irrational prejudices. Unlawful gypsy encampments can cause immense nuisance and desecration, and there are many gypsies
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and other itinerant groups who pay scant regard to the rights of other people to the proper and lawful enjoyment of their land and the natural amenity of the countryside. Respect for the lifestyle of gypsies will not be increased while this kind of thing is allowed to continue.
The Government had to decide to do something. We decided to look again at the policy of public site provision against the backdrop of unabated levels of unauthorised camping. I do not see anything unprincipled about that.
The assimilation of gypsies into what one might call the settled community has never been the Government's aim. The Government recognise that many people will wish to continue to pursue a nomadic form of life. Our intention is not to discourage those people or to make their lives a misery. The nomadic lifestyle itself causes many problems. It affects access to important health and welfare services and interrupts children's education. It affects those people who undertake that lifestyle and also those who do not follow that lifestyle, but who find themselves affected by it.
All these problems result from people who wish to be nomads. That is the choice of the nomad. All the Government can do is their best to address these problems which confront them and to try to alleviate them both sympathetically and with understanding. I do not believe that our proposals will necessarily exacerbate the difficulties which nomadic people already experience.
Lord Irvine of Lairg: My Lords, does not what the noble Earl has just said entail that evictions should only take place where the unlawful encampment causes nuisance or injury to amenity? Does he not accept that, under the Bill, evictions may take place where there is no nuisance and no injury to amenity whatever?
Earl Ferrers: My Lords, yes, that is perfectly true. As I have explained, it is intended that the guidance should state that local authorities should use the power at their own discretion and according to reason. In other words, local authorities should not chase up every gypsy just because he is there. The fact is that in law a person may not have a legal right to be somewhere but, in practice, it will be the local authority that will have to use its discretion.
The conclusion which we reached, after extensive consultation, was that local authority site provision was not likely ever to meet the apparently growing demand for sites. This was not simply a case of sparing some local authorities the continuing embarrassment of not having complied with their duty.
The noble Lords, Lord Irvine and Lord Harris of Greenwich, asked whether it was not in the national interest that gypsies should be satisfactorily accom-modated. Of course, it is in the national interest that they should be satisfactorily accommodated, but it is the Government's view that public provision has now reached a satisfactory level and that further provision should be made by the gypsies themselves through the planning system. We have never said that gypsies should not be satisfactorily accommodated. Over 70 per cent. of gypsy caravans are on authorised sites. Of the

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remaining 30 per cent., 10 per cent. are on the gypsies' own land without planning permission. Therefore, a great deal has been done from the public point of view.
The noble Lord, Lord Irvine, then asked about the 60 per cent. of local authorities which have failed to fulfil their duty. Although 38 per cent. of authorities have provided adequate accommodation to meet the requirements of all the gypsies residing in their, area, that does not mean that the remaining 60 per cent. have not provided any sites at all. Many sites have been provided in those areas even if the full needs have not been met. The noble Lord, Lord Irvine, referred to the remarks of my honourable friend Mr. Maclean and tried to draw a difference between his remarks and mine. I can assure the noble Lord that there is no such difference.
Local authorities will retain their discretionary powers under the Caravan Sites and Control of Development Act 1960 to provide further sites if they wish to do so. Reference has been made to the possible closure of local authority sites. I can advise your Lordships that we would expect local authorities in England and Wales to maintain their 300 or so existing sites. Local authorities have statutory housing duties towards homeless people and if they close their sites they may have to accept some gypsy families as statutorily homeless—and they would not do that in a hurry. County councils have obligations under the Children Act to provide services to children and their families. They would have great difficulties in discharging those obligations if they closed their sites.
The noble Lord, Lord Avebury, referred to local authority applications for grant. The recent influx of local authority applications for grant has been triggered by the Department of the Environment's letter of 27th January this year to the local authorities drawing their attention to the withdrawal of grant-making powers in the Bill. Many authorities believed that the Bill would receive Royal Assent before the summer recess and, as a result, many of the applications have been ill prepared. The few that have been well prepared are in respect of sites which have been in the pipeline for a number of years.
The noble Lord was also concerned about the extent to which the Department of the Environment would uphold planning appeals for gypsies on their own land. The noble Lord will realise that I could not possibly generalise in relation to tolerated sites which might become the subject of planning appeals. However, it may well be relevant that the land in question has been used as a site for a substantial period and the local authority had not previously objected to it. Each case has to be considered on its merits. There are sites on both public and private land which do not have planning permission or a site licence but where gypsies can camp free of harassment. Those tolerated sites vary. There are places where a single gypsy family is allowed by a farmer to camp on his land on a seasonal basis or during a horse fair. In that connection, I refer to Swan Farm in Sevenoaks in Kent, where gypsies have been camping on their own land but without planning permission since 1973. There are even non-tolerated sites. One such site in the borough of Stratford is of long duration.
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It seemed to us that it would be wrong to maintain what was in effect an open-ended commitment to provide sites at the public expense for all those gypsy families without accommodation, whether or not this was what they actually wanted.
The noble Lord, Lord Irvine, said that the grant was in the national interest. He must remember that the 100 per cent. grant for gypsy site provision was originally intended to be available for five years only so as to stimulate site provision by local authorities. It has been paid now for over 15 years, and it is clear that local authorities have come to depend on the grant entirely. I do not think that there is any principled reason for maintaining a grant for ever—a grant which is unprecedented in the public sector because it is a 100 per cent. grant.
The noble Lord, Lord Irvine, said that that cost is minimal compared with the cost of providing social security and so forth. With respect to the noble Lord, I thought that that was a bad argument. One can always say that there is a very good reason for continuing to spend money because by not doing so one would spend more. However, this grant has been paid for three times as long as was originally intended. The fact is that more and more people are deciding to become nomads—I have explained that the number has increased by 40 per cent. since 1981—but there is no reason why a person's individual choice to become a nomad should necessarily become the responsibility both of the local authority (which has to provide the site) and of the taxpayer (who has to pay for it).
Lord Avebury: My Lords, although this was mentioned in Committee, the noble Earl obviously cannot be aware that as a result of a recent court decision, a person who becomes a nomad voluntarily, and who has not been one in the past, does not qualify for the definition of "gypsy" under the 1968 Act.
Earl Ferrers: My Lords, I think that the noble Lord is referring to New Age travellers who, as he knows, are different from gypsies.
We know, from our discussions with the National Gypsy Council, that many gypsies would prefer to establish their own sites rather than to live on council estates, which have to cater for many different family groups in order to achieve reasonable economies of scale.
Gypsies are not always the close-knit community which they are sometimes portrayed as being. Animosity between different family groups is not unknown among them, with all sorts of weapons being used by them to settle their problems —like guns, shotguns and even chain saws and scythes—so they are not necessarily a totally harmonious group. This causes significant management problems on local authority sites, and is the chief reason why some gypsies shun these sites. Private sites, on the other hand, tend to be smaller than council sites and can usually accommodate single family groups better.
We thought that the right approach to the problem, and the one which was most in accord with the aspirations of gypsies themselves, was to take steps to encourage more gypsies to establish their own sites

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through the planning system and to repeal the system of mandatory site provision which was not providing adequate sites.
The noble Lord, Lord Harris, asked about the police. The provisions do not have any significant manpower implications for the police. The police sometimes assist local authorities with forced evictions, but such evictions are rare.
Lord Harris of Greenwich: My Lords, perhaps I may ask the noble Earl a question on that last point. Is that the view of the Home Office or is it the view of the Association of Chief Police Officers?
Earl Ferrers: My Lords, it is a fact. The fact is that such evictions are rare. Whether a gypsy is being evicted or a landlord is evicting a trespasser from his land, it is a civil action and the police are called in only to ensure that there is fair play.
The noble Lord, Lord Merlyn-Rees, referred to urban areas where fewer than 10 per cent. of gypsies are on lawful sites. As I understand it, 46 per cent. are now on council sites and 24 per cent. are on private sites.
The noble Lord, Lord Irvine, was also concerned about planning. We have taken steps to encourage private site provision. The Department of the Environment's Circular 1/94, issued on 5th January, provides a framework under which gypsies will be able to develop their own sites.
Some concern was expressed in Committee about whether private site provision through the planning system could ever provide enough sites quickly in order to alleviate the problems which are being experienced by gypsy families. We think that the planning system is capable of providing sites. Indeed, it has already been successful in doing so. There are now 3,306 gypsy caravans on authorised private sites in England and Wales. We expect that successful provision to continue and even to be enhanced by the new circular. It advises local planning authorities to include in their develop-ment plans policies to take account of gypsies' accommodation needs. Where an authority's failure to have regard to government policy results in a refusal of planning permission, the authority risks having its decision overturned on appeal.
The Secretaries of State for the Environment and for Wales have to be consulted in the preparation of the local authorities' draft development plans. The Secretaries of State can object to a draft plan. They will intervene formally if there are unresolved conflicts which do not appear to be justified by local circumstances. The process of commenting upon authorities' proposed policies is already under way.
The planning system is fair. I have no doubt that there will continue to be local opposition to the development of gypsy caravan sites. We do not alter the public's attitude to such things overnight, but we intend to ensure that the gypsies' planning applications are treated fairly. We hope that more gypsies will have confidence in the system and will try to establish sites in accordance with the usual procedures rather than in defiance of them, as too often happens at present. We expect, too, that the public will see less reason to oppose the development of
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a small private site which caters for one family than they would in the case of a council site which would accommodate several families.
Local authorities, and the majority of private landowners, are not likely to be greatly concerned about a small, unobtrusive, unauthorised encampment on their land. In addition to the authorised sites which are available at the moment, there are also many tolerated sites on private and public land where gypsies camp without fear of immediate eviction. To camp lawfully on land for a short period, a gypsy has only to obtain the occupier's permission.
I know that this is a controversial subject. The Government's proposals offer a realistic way forward. I cannot promise that there will be no unauthorised camping or that in 20 years time all gypsies will be accommodated happily on authorised sites as a result of these proposals, but it is the right thing to do. It is correct that local authorities should have regard to what happens in their areas. It is right that they should have regard to the conditions of the countryside in which everyone has a part to play and which others wish to enjoy. It is also right that the gypsies should be able to find places of their own, but that is fundamentally the responsibility of those who undertake a nomadic life. It is not necessary that the local authorities or the taxpayer should have unlimited liability. They have both contributed considerably over the past 15 years.
5 p.m.
Lord Irvine of Lairg: My Lords, I find the Minister's reply wholly unsatisfactory. He appeared not to have followed or to have engaged with my proposition that £4 million or £5 million a year is the figure that applies to grants. I was not contrasting that with social security payments at large or social expenditure at large; I was contrasting it with the cost to the taxpayer of all forms of support for social housing for the settled community, and was inviting him to accept that the figure for that was £4 billion in comparison to £4 million.
I intervened to ask the Minister whether his emphasis on nuisance or injury to amenity caused by unlawful encampments was not misplaced as a justification for these powers of eviction. We received no answer to the proposition that there is ample power in the law already to deal with nuisance or injury to amenity from unlawful encampments. So that is not independent justification for the power to evict. The Minister was good enough to acknowledge that eviction could take place in circumstances in which there was no nuisance or injury to amenity, but expressed the somewhat pious hope that, in accordance with guidance to be given to local authorities, they might, in their absolute discretion, abstain in some cases from evicting where there was no nuisance or injury to amenity. Does not that mean that the law will be arbitrary; that its application will vary from district to district; and from the mood of one local authority to another? Will it not be fundamentally offensive to justice, because similar cases will not be dealt with in like manner across the country?
At some point I had the thought that the Minister was defending the working of the 1968 Act, the primary duty

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of which he is repealing. As he pointed out, one ought not to be too misled by the figure of 60 per cent. of local authorities which did not achieve designation. They may nor. have been providing sufficient sites to achieve designation, but, none the less, they were providing sites. But at the same time as he was defending the working of the Act, it appeared to me that he was contradicting himself in justifying the repeal of its primary duty.
I have to say with great respect to the Minister, who in some contexts I would readily accept is a strong supporter of civil liberties, that I suspect that the inadequacy of his reply is because his heart does not accompany his brief and that he is perhaps a pressed man in defence of what, in good conscience, he must be incapable of believing is defensible or capable of being defended by rational argument.
By introducing the amendments I have provided the essential factual background for the House to come to a judgment on the next important group of amendments to be moved primarily by the noble Lord, Lord Stanley. In those circumstances, I beg leave to withdraw the amendment.
[Amendment No. 124 not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 124A:
Page 61, line 6, at end insert:
("( ) This section is subject to subsections (4A) and (4B) of section 159.").
The noble Lord said: My Lords, with this amendment I shall speak also to Amendments Nos. 208A, 209A and 212A. The substantive and consequential amendment is Amendment No. 212A. It delays for five years the repeal of the Caravan Sites Act 1968. As your Lordships will know, the main effect of the 1968 Act is to lay a duty on the local authority to provide sites for genuine gypsies—genuine gypsies being those people as defined by a recent Court of Appeal decision. I must make it clear that they are not hippies, New Age travellers or any of the like.
The main reason why the amendment is so essential is that it will prevent genuine gypsies from being moved from one illegal site to another. Without it, I see local authorities being greatly reluctant to move on gypsies under Clause 72 which it has been decided should stand part of the Bill, and for which I am grateful.
The amendments would, first, give the Government's policy of gypsies providing their own sites time to work, especially as local authorities will have to redirect their planning policies and structure plans to accommodate that welcome idea. The noble Lord, Lord Irvine, mentioned in a previous amendment the recent planning guidelines that seem to run counter to providing sites in the future.
Secondly, the amendment would give the Secretary of State the power to revise the method of providing sites if it is found that the new policy is proving difficult. Many of your Lordships have expressed doubts as to whether gypsies will be able, or even allowed, to provide their own sites. The amendment provides a fall-back provision.
Thirdly, the proposals need cost the Treasury not one penny. Indeed, as I suspect my noble friend Lady Faithfull will explain, they could save the taxpayer money.
Fourthly, it gives the Secretary of State the power to release local authorities from their duty to provide sites as, when and where he or she thinks fit. That is fair only to those local authorities which have already struggled to do so. It would also help with the problem of the inner cities, which was raised by the noble Lord, Lord Merlyn-Rees. I believe that the noble Lord, Lord Congleton, will comment on the problems of the local authorities which have provided sites.
Fifthly, it would give the Government and local authorities time to make a thorough search for satisfactory sites. MoD and forestry sites were suggested in Committee. Sixthly, the real hardship to people such as children and pregnant women, as acknowledged on Second Reading (col. 509) by my noble and learned friend Lord Fraser, would be solved to the relief not least of the children's societies; in particular, Save the Children. That matter was raised by the right reverend Prelate the Bishop of Liverpool. Seventhly, my honourable friend Tony Baldry said that the Government's proposals in this part of the Bill are aimed at securing the original objectives of the 1968 Act by other means. This amendment would help the Government to achieve that objective.
Your Lordships will not be surprised to hear that my noble friend Lord Ferrers has taken great trouble sympathetically to discuss this amendment with me. I do not know how, with such a massive Bill before him, he finds the time but I hope that he has been able to persuade himself—which I do not believe was difficult —and more importantly the Government to accept this small but constructive amendment. I beg to move.
Baroness Faithfull: My Lords, in order to clarify the position in my mind, I wish to ask my noble friend various questions. First, I speak as a former local government chief officer—though, admittedly, that was some time ago. I also speak on behalf of the well-being and the education of the children and the health of the family.
My noble friend Lord Ferrers said that under the Children Act 1989 and the Children and Young Persons Act 1933 the local authorities have been consulted and have agreed to the repeal of the Caravan Sites Act 1968. I am in some difficulty about the issue, and it is the same difficulty as was mentioned by the noble Lord, Lord Merlyn-Rees. If gypsies are evicted from a site and there aré problems in respect of the health, education and care of the children, which authority will be responsible?
Under the Children Act, the place of residence denotes the responsible authority. If a family is moved on and problems arise will the authority whose area they have left be responsible or will it be the authority into whose area they are moving? I can see confusion between authorities as to who will be responsible for the problems that arise in such families.
Have the Government considered what will happen if there is a reorganisation of local authorities? If unitary authorities are introduced great difficulties will arise

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because many small authorities will want other authorities to be responsible. We must clarity exactly who, under the Acts, will be responsible if an eviction takes place. I understand that the evictions take place quickly. If that is so, will guidance be circulated stating how much notice of eviction should be given, first, to the authority from whose area the family has been evicted and, secondly, to the authority into whose area they are going?
If families are moved on quickly the children will not stay permanently at one school. When families are evicted what will happen to the children? Will arrangements be made for them immediately to be admitted to a school in the area to which they have moved or will it be expected that they will attend the school on whose roll they appear?
If a family is quickly evicted from one area to another its members will not be registered with a new doctor. There may be disease in the family or a woman may be pregnant. They will not be registered with a doctor in the new area but they would have been registered had they stayed in the area in which they had been living.
I support my noble friend Lord Stanley and agree that the whole exercise needs to be much more carefully planned and thought out. It must be more closely considered with the statutory and voluntary organisa-tions and the Association of Directors of Social Services. I believe that a survey must be carried out showing where the sites are.
I make a plea to my noble friend and ask whether it would be wise to defer the matter for five years so that the issue of who will be responsible in the various circumstances can be carefully and properly worked out.
Let us remember the terrible troubles that arose as a result of the clearance of the Highlands of Scotland during the last century. I ask my noble friend Lord Ferrers whether all those issues have been considered, together with the legal position with regard to the Acts of Parliament which must be administered under this extraordinarily difficult situation? Will he support my noble friend Lord Stanley in deferring the measure and planning the whole position carefully and with thought?
5.15 p.m.
Viscount Tenby: My Lords, I support Amendment No. 124A and its allied amendments. It is a pleasure to be associated once again with the noble Lord, Lord Stanley of Alderley, in an area in which he has shown great commitment for a number of years. The Minister may recall that some three years ago we were both anxious about the lack of provision for the control of New Age travellers. Although our request to amend Section 39 of the Public Order Act then fell on deaf ears, the Government have since paid heed to our pleas. For that I express my thanks and, more importantly, the thanks of the blighted communities in the south, the west and in Wales whose lives will be made much better as a result of new measures.
The problem before us today is altogether different. We are dealing with traditional travelling communities, the composition of which has been accurately and usefully described recently in the courts. That has been
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a matter of great satisfaction. The rationale behind the Government's proposals is that the Caravan Sites Act 1968—which I and many others believe was an imaginative and constructive Act and I bow towards its author, the noble Lord, Lord Avebury —has failed and that a fundamental change is necessary to the way in which we view this problem which, of course, will always be with us. In accordance with their beliefs, employment of the private sector is seen as the answer rather than government involvement by our local authorities.
The first question which has to be asked—indeed, it may be the only question which has to be asked—is whether the Act has failed. I do not believe that it has. While it is true that only 38 per cent. of English local authorities have acquired designated status—that is, have met government requirements—in the provision of suitable sites for gypsies, the fact is that the amount of accommodation has increased over the years. Therefore, probably some two-thirds of travelling folk now have access to an authorised site.
We have heard already today some of the figures. However, like good tunes, they bear repeating. At the beginning of the year, there were nearly 4,000 caravans on unauthorised sites, of which 1,252 were on land actually owned by gypsies but without the relevant planning permission. Of those, 283 were on tolerated sites, of which we have heard much today. Those are sites about which the local authority would be unlikely to take any action and where, I agree with the noble Lord, Lord Avebury, local authorities may well be prodded by government into granting planning permission.
The subject was trawled over knowledgeably in great detail in Committee by others far more expert than myself. The noble Lord, Lord Irvine, spoke on it today. It is perhaps interesting that in an area where, for obvious reasons, it is notoriously difficult to obtain entirely reliable statistics, there is an avalanche of information, although some of it is conflicting and therefore unhelpful. The House will be relieved to hear that I shall confine myself to brief, general comments on the virtues of the amendment.
The advantage of freezing until 1999 the existing provisions of the Caravan Sites Act 1968 is that it will keep in place the supporting props which protect those communities while at the same time providing a breathing space to see whether the private sector can deliver the goods. What can be more rational than that? What can be wrong with that? Surely that is a reasonable stance to adopt.
I share the anxieties of some other noble Lords that gypsies, through their tradition and upbringing, may have difficulties in relation to coping with the complexities and frustrations of, for example, planning procedures. I know that I cannot cope with them, so it may well be that some gypsies may also find it difficult. It may be said that the gypsy council and other bodies would possess the necessary expertise to purchase sites on behalf of those communities. But they would surely be able to purchase only a comparatively small number of sites and they might be overwhelmed by the sheer weight of applications.

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In that context, I take up the noble Lord's plea for an examination of disused Ministry of Defence sites. I know that that is always a tricky subject but they are proliferating week by week. Although using disused army camps and airfields for that purpose may awaken our worst NIMBY instincts, many of those sites are in relatively out of the way places. They probably have running water and hard standing. I should like the problem to be examined with much more urgency.
The crux of the matter is that the Government say that despite the expenditure of £89 million from the public purse since 1976, the number of gypsies on unauthorised sites has increased. The Minister said that. For a number of reasons, regrettably that may be so. But surely the answer is not to withdraw all support and remove the obligation on local authorities to be involved; to say in effect to those authorities which complied with the provisions of the 1968 Act, "You were conned. Bad luck", and to those which failed, "You were right all along to hold out". That does not sound like a very moral attitude.
I should add that in conversations with both county and local authorities, I have yet to find anyone who agrees with the proposals. If the provisions of the Bill become law, the words of a certain Minister of Health prior to the 1968 Act may, I fear, again become a reality. He said:
"For most traveller families there is nowhere they can put their homes; they are only within the law when moving along a road".
In Committee the noble Earl said:
"It is easy to paint a bleak picture of the future in which local authorities wield their new powers like zealots and every unauthorised camper is repeatedly moved on. However, I do not believe that that is likely to be the case".—[Official Report, 7/6/94; col. 1123.]
The Minister is an eminently reasonable and compassionate man. We all know that; I certainly do. In general terms, what he says may be true. But a belief is not the same as the letter of the law. If the provisions are passed there will be a duty on the authorities to enforce them with all the attendant stresses and miseries which they will bring to gypsies with regard to education, as the noble Baroness, Lady Faithfull, said, health and peace of mind. How can it do otherwise than to lead to more illegal camping and, therefore, greater friction within countryside communities? That is why I urge noble Lords to support the amendment.
Lord Renton: My Lords, my noble friend Lord Stanley of Alderley is inviting your Lordships to postpone for as long as five years the provisions contained in the Bill affecting gypsies and, one must say, other wandering people. My noble friend says that he is inspired to do that because of the decision of the Court of Appeal in the case which occurred just before our last debate on this matter. Noble Lords will recollect that several speakers, in particular, the noble Lady, Lady Saltoun of Abernethy, and the noble Earl, Lord Halsbury—and I believe that we all agreed with them —were anxious that the people traditionally known, respected and liked as gypsies should not suffer in any way from legislation which we pass.
But there is a problem. It is a problem which was faced by the Court of Appeal. It is that besides the
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original and genuine gypsies, there are a number of people, mostly of native British descent, who took to the wandering life following the invention of the motor vehicle. They were not such worthy people. They were described as didicois. Now we have a further and recent development of the wandering life; for example, the New Age travellers.
The feeling became fairly clear in our last debate —and I hope that your Lordships will agree that we should now make it absolutely so, as the Court of Appeal certainly did—that we must treat all those people in the same way.
Lord Stanley of Alderley: My Lords, I am sorry to interrupt my noble friend, but the Court of Appeal did not say that. It made clear who was and who was not a gypsy. The gypsy to whom the noble Lady, Lady Saltoun, referred, certainly fell into that category. New Age travellers do not. They would have to be travelling with a view to trying to find work.
Lord Renton: My Lords, I am grateful to my noble friend for allowing me to explain further. I have here the report of the Court of Appeal. The report states:
"It was accepted that originally and etymologically nomads were people who wandered in search of pasture for their animals, but that meaning had long since disappeared. It was therefore no longer permissible to restrict the statutory definition of 'gypsies' to those who led a wandering life with an economic purpose in mind".
Lord Justice Neill made various other comments in his judgment which are relevant but of which I shall spare your Lordships the repetition. However, I should like to refer to the conclusion which was supported by the two accompanying Lord Justices:
"In his Lordship's judgment, in the context of Part II of the 1968 Act the definition of gypsies in section 16 imported the requirement that there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned made or sought their livelihood Persons, or individuals, who moved from place to place merely as the fancy might take them and without any connection between the movement and their means of livelihood fell outside those statutory definitions".
Thereafter, the report stated that,
"his Lordship read Section 6(1) of the 1968 Act"—
which was referred to in the earlier discussion and which says—
"the duty of the county council was to provide sites for those who
came in cohesive groups and who had some purpose and pattern for their wanderings".
It seems that my noble friend and I may have been at cross purposes. As my noble friend rightly pointed out, it is perfectly clear that there is a distinction between the various types of wandering groups. But we have to bear in mind the fact that all those types of wanderers exist. Whether or not we legislate differently for them is a matter in respect of which we have so far relied upon the Government. I shall be most interested to hear what my noble friend the Minister has to say on the matter.
However, bearing in mind the decision of the Court of Appeal and the views expressed by most noble Lords at the earlier stage, I should have thought that it was unnecessary to postpone the Government's provisions for five years in order to consider the matter still further. Indeed, it has been considered so much over the past year or so in both Houses. With deep respect to my noble friend, with whom I so often agree—sometimes in

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disagreement with the Government, as he well knows —I should have thought that on this occasion we ought to accept the position as we have so far decided it and not postpone further consideration for five years which, with all the factors involved, might be a rather agonising period.
5.30 p.m.
Lord Avebury: My Lords, with great respect, I believe that the noble Lord, Lord Renton, has put the facts of the case quite correctly. There is no difference between him and those of us who attached our names to the amendment. Our purpose is to ensure that the public authority provision for gypsies, which is to be prolonged for a few extra years, is restricted to those whom we may, in shorthand terms, call the "genuine gypsies" and not extended to New Age travellers or to persons like a correspondent of mine who took up the nomadic way of life voluntarily in his early twenties by buying a van and taking to the road.
Such people should not expect Parliament to require the local authority to make provision for their accommodation. That is something which is not within their traditions or customs because, by definition, they were living in settled accommodation until they embarked upon that different way of life. Therefore, it is totally unreasonable for them to expect the taxpayer or local authorities to support them in what they arbitrarily decide to do. They must fend for themselves. I believe that we are at one on that aspect of the matter.
However, we must face the fact that there are about 3,800 caravans belonging to gypsies and not to New Age travellers or voluntary hippies who take to the road in the manner that I described. Those caravans are still on unauthorised encampments and provision has to be made for them in one way or another. I was glad to hear the Minister say in response to the last amendment that he believed it was in the national interest for us to deal with the problem as rapidly as possible.
Incidentally, in parenthesis, perhaps I may point out to the Minister that he was wrong to say that there were two purposes to the 1968 Act; namely, the provision of adequate accommodation for gypsies and the control of unauthorised sites. If the noble Earl refers to the Act, he will see that Part I protects individuals living in mobile homes on conventional sites from unauthorised eviction without a court order. I only mention that fact because it is frequently forgotten that that legislation contained a further important provision for people living in mobile homes. It is still on the statute book and it is not proposed to repeal it.
The Minister said that he did not think that the Government's proposals would exacerbate the position; in other words, he did not think that they would create a worse position regarding unauthorised encampments than would have obtained if we had allowed the local authorities to continue carrying out their work for another five years as proposed by my noble kinsman. I do not know how on earth the noble Earl can reach such a conclusion in logic when, looking back over the past few years, it will be seen that local authorities have been providing roughly 200 pitches a year. Moreover,
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although he was rather scathing about it, proposals have been submitted to the department for something like 2,000 additional pitches.
The Minister dismissed the latter by saying that some of those applications were put in very hurriedly because, when authorities received the letter of 27th January, they realised that the chopper was coming down and that they had to submit them before the deadline. However, the 541 pitches which were the subject of stage 1 approvals between 27th January and 4th March did not have to be submitted in any detail; indeed, they can be developed at the leisure of the local authorities. Incidentally, the 100 per cent. grant still continues to apply to them ad infinitum. There is no time limit within which those stage 1 applications, which have been approved in principle, have to be turned into stage 2 detailed, thoroughly costed and thought-out proposals. Therefore, if they continue down the road of turning the 541 stage 1 approvals into stage 2 proposals and do the same for the 1,402 pitches which are provided for in the applications for stage 1 approvals agreed within the past 18 months prior to 27th January, the local authorities will continue for another two years. I have had the latter confirmed by the discussions that I have had with senior officials in the department. If there is any discussion on the matter, the facts can easily be ascertained.
As regards the public sector borrowing requirement for 1994–95, I believe that the same amount has been included for provision of 100 per cent. grant as has been the case in previous years. Unfortunately—and I discovered this from the Minister's reply—we shall not have a cut-off point in 1994–95 when suddenly, on the passing of the legislation, the provision of sites by local authorities comes to an end and we become entirely dependent on the private sector. The reason is that there are sites in the pipeline which will continue, as I said, to attract the 100 per cent. grant.
All my noble friend is seeking is a small extension. In fact, it is not five years because, as we may well agree, for the next two years those applications in the pipeline will continue to trickle through and the local authority contribution will probably be much the same as it has been over the past five or 10 years. It is for the following three years thereafter that my noble kinsman is saying, "Let us continue to lay this obligation on local authorities, simultaneously with the increased contribu-tion of the private sector. If we find that the private sector comes up to scratch and that it can increase its contribution by at least 100 per cent., then we can afford to discontinue the obligation on the local authorities".
I hope the Minister has studied the figures which I passed across to him. I make no apology for repeating what I said on the previous amendment because it is important that your Lordships should understand. Let us suppose we agree that the private contribution is doubled from 1996 onwards, that the contribution by local authorities continues at the same level, and that the gypsy population increases by 3 per cent. a year as it has done in the past few years. According to my calculations —anyone, including the Minister, can dispute them, if they see fit—by the year 2000 we shall only have reduced the number of gypsy caravans on unauthorised encampments from the present level of just under 4,000

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to just under 3,000. It will be the year 2015 or 2020 before the aspiration—shared, I believe, by the Minister and everyone who has spoken—of ending the menace of unauthorised encampments is finally accomplished.
Surely, when faced with such a long-term task, the last thing we want to do is to tell anyone who is making a contribution to stop. Why not allow, as my noble kinsman Lord Stanley of Alderley proposes, the local authorities to continue exactly as they have done in the past for the next five years? Then, by the turn of the century, we shall see whether the kind of figures which I have written on the piece of paper are realised. If they are realised—they contain some optimistic assumptions —surely we will be able to say, with the benefit of hindsight, that it would have been absolute madness to have scrapped the contribution that local authorities were making in 1994 and to have depended entirely on the private sector alone.
This is the last opportunity we shall have to consider this matter. If we leave it now, it will be no good your Lordships saying to the Government in two years' time, "Oh what a pity that we did not think the contribution of local authorities was important". There will not be any time for legislation to reinstate that provision. Even if there were time for legislation, I hardly think one could crank the local authority effort up to the kind of level it has achieved at the moment.
Before we leave the amendment, we should say that some local authorities have done a good job. I have a pamphlet issued by Cardiff which describes how that authority has tackled its gypsy problem. I believe that the former constituency of the noble Lord, Lord Merlyn-Rees, has made enormous efforts. Leeds has tried genuinely to solve the problem of unauthorised encampments. However, there are places—I make no apology for saying that Avon has not made an adequate contribution in this regard—which have not made adequate contributions. The Minister knows that two other authorities have been the subject of directions under Section 9. He says that he does not wish to issue any more directions under Section 9 because it is a power of last resort. But is it not unfair that when some local authorities have made provision for all the gypsies residing in, or resorting to, their areas, we say in the Bill that the ones which have failed, and the ones to which I have referred with the worst record as regards giving planning permission for private sites will now be excused all future contributions? I do not think noble Lords would agree that that is fair. I hope that they will accept the amendment.
5.45 p.m.
Viscount Brentford: My Lords, I support the amendment. I am in discussion with a number of people working with gypsies and I may wish to say more about that at Third Reading. I fully agree with the proposals of the Government; I certainly voted in support of Clause 72 as it stands. I take heart from the fact that a number of times my noble friend Lord Ferrers has talked about these provisions being administered reasonably. However, as the noble Lord, Lord Avebury, said, we all want to remove the problem of the use of unauthorised sites.
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There seem to me to be two reasons why the time delay is valid, if I may answer my noble friend Lord Renton. The first is that we still have a large number of mobile families who do not have access to authorised sites. Whether they represent a quarter or a third of the total, they constitute a large number. Therefore action is still required. I am glad that there will be scope for the private sector to help meet the provision Secondly, I refer to the length of time taken by planning applications. They can go on for years. That is why we need the delay in order. It will give the private sector time to lodge, and succeed in, planning applications. I was glad to hear my noble friend say, I believe, that he has encouraged planning applications to proceed. Nevertheless, they will take time. This seems to me the reason underlying the amendment. My noble friend the Minister talked about a number of planning applications in the pipeline, thereby indicating the time they take.
I am worried that local authorities will have to identify in their structure plans places that are suitable for gypsy sites. How long will that take? It may take up to two years in itself. I am worried particularly about the provision for children—my noble friend Lady Faithfull referred to that—and for pregnant mothers. I would like my noble friend the Minister to confirm that his reasonable policy will take account of pregnant mothers for a period of, say, at least a couple of months on either side of the birth; otherwise great hardship can arise.
Access to authorised accommodation is required for children in mobile families. They must have stable and suitable accommodation that is appropriate for them. As my noble friend Lady Faithfull said, this is equally relevant as regards schooling, GP and health services and other community services. If there is to be a continual moving on from unauthorised sites to other sites, these children will be deprived of such facilities. I hope therefore that my noble friend the Minister will express support for the amendment.
Earl Peel: My Lords, I had no intention when I entered the Chamber of taking part in this debate. It is only since listening to the arguments that I am bound to say that I see great merit in my noble friend's amendment. It seems to me that while attempting to find a positive solution to what is unquestionably a difficult problem, that problem is unlikely to be resolved unless there is some positive help from local authorities to help gypsies find suitable site accommodation.
I believe my noble friend Lord Renton tried to distinguish between the genuine gypsy and the non-genuine gypsy. I am not in a position to be able to say whether or not that has been defined clearly. Certainly, however, I am aware of the position as regards genuine gypsies. It is a great shame that much of their reputation has been damaged by New Age travellers. The Government are being what I can only describe as optimistic if they think that by lifting the duty on local authorities in favour of private site provision through local landowners, provision will be made in this regard. There is little chance of that happening, particularly in view of the fact that landowners who are expected to provide these sites will find it difficult to distinguish between genuine gypsies

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and New Age travellers. It is such a shame that the Government have done so much in the Bill to counteract the ever-increasing problems of rural crime, but in this case I believe that there is a real danger that the Government proposals will prove to be a retrograde step. Discouraging local authorities from taking on the responsibility which exists under the 1968 Act will result in the issue being dodged and many more problems developing than are likely to be resolved.
I have to put one question to my noble friend before I can make up my mind on this issue. Can he persuade me and other noble Lords that what the Government propose is better than what exists under the 1968 Act?
Lord Congleton: My Lords, I have been invited by local authorities in Wiltshire to support the amend-ments. I have also been invited to do so by the National Farmers' Union and Save the Children.
Many of the points that I would have raised have already been mentioned and I do not propose to go over ground that was covered either in the Committee stage or earlier this afternoon.
Even if I had not been invited to speak this afternoon I would have done so on my own account, having lived in Wiltshire for 35 years and for 10 of those years having been a rural district councillor. Rural district councillors do not exist any longer; they were swept away in the 1974 reorganisation. During my term of office as a councillor, in which capacity I was proud to serve my fellow citizens and communities, I believe that I had a reasonable record of achievement. I did two things which give me pride and pleasure to reflect upon. The first was to have four small bungalows built in our very small village for elderly retired folk.
The other achievement was, during my term as chairman of the council, to encourage the council to establish what was the first permanent gypsy site in Wiltshire. It was in South Wiltshire and it was established in 1972. We established the site because Dorset—which has always appeared to be a yard or too faster over the ground than Wiltshire—had become a designated authority and was pushing its unwanted travelling folk across the boundary into South Wiltshire. It was clear that we had to do something. We set to and established a gypsy site.
Therefore I have some experience of what happens at the sharp end. We had no trouble involving shotguns or chain saws. I am told by the chief officer of the county council, who now has responsibility for these matters, that in all the years during which permanent sites have been established in Wiltshire—and we heard from the noble Lord, Lord Avebury that there are now 158 pitches in Wiltshire—there has been no trouble.
To go back to 1972 for a moment, one might have thought that establishing a site in an area would prove unpopular with the local community. So it proved. However, we went through the usual civilised process of discussion, consultation, negotiation, persuasion, coun-ter persuasion and so forth. After some months everyone was won over—some more reluctantly than others. That
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site has now been established for more than 20 years. Others have followed. There are now 29 sites, some private and some operated by the local authority.
I mentioned that because it has been put forward by the Government that the Caravan Sites Act 1968 has not worked. I have had little responsibility for, and do not take credit for, the fact but Wiltshire is a shining example of how it has worked. I ask myself, if it can work in Wiltshire why on earth can it not be made to work elsewhere?
An Act of Parliament, especially one which lays duties on authorities to do certain things, is an inanimate piece of paper with words written on it. It needs to have life breathed into it. In this case it was for the local authorities to breathe life into the Caravan Sites Act 1968 for which the noble Lord, Lord Avebury, was responsible. That requires political will at the local authority level.
I do not know why some councils have failed to establish the gypsy sites that were required of them under that legislation. It has been suggested that they have flouted the will of Parliament. They probably have. The 1968 Act lays a duty on local authorities. Some authorities have responded to the will of Parliament and some have not. Wiltshire has done so, and all credit to it.
What of the future? If Clause 75 is approved—and I hope that it will not and that the amendments are accepted—what will happen in those areas where permanent and transit gypsy sites have been established? Will they become overcrowded? Will floods of travelling people use those sites because they have nowhere else to go? Apparently the county of Avon has not done very well in this respect. Wiltshire is next door to Avon, and I hope that travelling people will not flood over the boundary into Wiltshire.
The financial implications have been mentioned. A total of £87 million over 15 years for the whole of England and Wales does not seem a great amount of money. I do not see great savings resulting from the operation of Clause 75.
What am I to tell the people in Wiltshire? They have done everything that Parliament wanted them to do. They are now to be disregarded. The community charge payers will be told that their money has not been well spent. All those authorities which have not done what Parliament wanted them to do will be give the green flag and told that they may forget about it. I find that obnoxious. I support the amendments.
6 p.m.
Earl Ferrers: My Lords, as my noble friend Lord Peel said, this is a sensitive and difficult area. I do not think that anyone who has had cause to approach the subject could fail to realise that there is nothing which is not sensitive or difficult. The problem affects people's lives and livelihoods. It also affects people on whose land or in whose vicinity gypsies present themselves. Therefore, there is a difficulty between the two sides of the problem. Nobody pretends that it is an easy problem to solve. I would not want your Lordships to think that

1559
either I or Her Majesty's Government are taking a tough-nosed view and are being inconsiderate. We are trying to deal with a problem.
On the one hand, there is the problem of gypsies who wish to follow a certain form of nomadic life style. They wish, and are entitled, to have their children educated and to have access to doctors and so forth. On the other hand, there are the conditions of distress and despoliation of the countryside, unauthorised camping and sometimes trespass, and all that that carries with it. It is not easy to strike a balance.
We have dealt with the principle behind the amendment all afternoon. My noble friend's amend-ment suggests that we put off the issue for another five years in order to allow local authorities to take such action as they need and then see what the situation is at the end of that time. The noble Lord, Lord Avebury, said that it is not wrong to put off the matter. However, it is five years. That is one third of the time during which the Caravan Sites Act 1968 has been in operation. The provision of the 100 per cent. grant was introduced later. The provisions were originally to operate for five years. They were extended and have operated for 15 years. Now my noble friend Lord Stanley suggests that we retain the provision for another five years—the same length of time as it was originally intended the grant should last.
As I explained earlier, the system was put in place when fewer than 10 per cent. of gypsies in England and Wales had lawful accommodation. The position is very different: now. Some 70 per cent. of gypsy caravans are now on authorised council or private sites; and on top of that figure, 10 per cent. are on tolerated sites.
The 100 per cent. grant was introduced in 1978. It was made available for a five-year period only. It was intended to stimulate local authority site provision. My noble friend now says, "Let's have it for yet another five years", even though the period has been extended to 15 years.
The system has not enabled local authorities to keep up with the growth of demand for such sites and consequently unauthorised camping by gypsies has remained at broadly the same levels throughout the past 13 years. The reason is that the number of those who wish to become nomads has increased. As I explained previously, that is because the number of caravans has increased by 40 per cent. since 1981, from 9,800 to 13,700. I do not wish to keep harping back, but I must do so because we are discussing the same argument. When that number of people decide to take on that lifestyle, I do not believe that it is reasonable to say that the local authorities should have to provide the sites and that the taxpayer should have to pay for them. If the number of gypsies increases, that is their wish; no one has to take on that lifestyle.
The argument is enticing; I do not deny that. My noble friend Lord Stanley was good enough to see me and seek to entice me. He very nearly did so, but he did not succeed. The argument is, "Let's have another shot. Let's keep the grant going for another five years. Let's put the issue off for a while. Let's have a bit of a breathing space". It is tempting to believe that with just a few more years of grant being available to them, local
1560
authorities will be encouraged to step up their site provision. I doubt whether that will be the case. As the noble Lord, Lord Avebury, said, at the end of the grant regime there has been an upsurge in last-minute applications for grant from local authorities. That was only to be expected. Not all of those are viable proposals. Some are for sites which have been plucked out of the air with no real assessment of the planning or other difficulties to which they might give rise. Others are for minor refurbishment which more properly belongs within a normal maintenance programme. I do not believe that that upsurge is an indication of a desire within local authorities generally to continue with large scale public site provision.
I ask those noble Lords who are in favour of the provision where they expect we shall be in terms of local authority site provision in July 1999. Will this provision be the solution to the problem? I very much doubt it. I believe that we are likely to be in a similar position to now.
Lord Avebury: My Lords, the question is not where we shall be in July 1999 but whether, as a result of the amendment in the name of the noble Lord, Lord Stanley of Alderley, we shall be nearer to a solution to the problem than we would be if the amendment were rejected.
Earl Ferrers: My Lords, that is an argument for continuing a grant for ever. That is what happened when the period of the grant was increased from five to 15 years. The noble Lord, Lord Avebury, answered the problem when he said that it will not be until the year 2015 or 2020 that everyone is on an authorised site. That is because if conditions continue as they have done in the past there will be yet more itinerant people, yet more local authorities will be expected to make more provision, and yet more taxpayers' money will be expected to pay for that provision.
I do not believe that imposing a statutory timetable for the repeals will make the task of local authorities to find suitable locations for sites any easier. I do not think that such a provision is likely to have an effect on the natural growth of the gypsy population or on the desire of those young gypsy couples to have their own caravans and pitches.
My noble friend Lady Faithfull referred to some matters of great importance. My noble friend Lord Brentford referred to children and pregnant mothers. Before a local authority were to evict a gypsy it will need to consider, among other matters, what duties it and other local authorities will owe to the family to be evicted. The children and pregnant mothers will be two of those considerations.
My noble friends were both concerned about the proposed circular. That will remind local authorities of their obligations under the Children Act 1989. Those obligations are clear enough. Local authorities will be expected to liaise about their evictions. But my noble friend Lady Faithfull was anxious about travellers' access to education facilities. Of course, the continuity of access to education for travellers' children is a problem. We already commit very considerable resources towards resolving those difficulties.

1561
Allowance is made in the funds allocated to education authorities for the basic needs of travellers' children. There are two separate duties. The first is the duty of the local education authority to ensure that all children attend school or are otherwise suitably educated, and it has to make sufficient places available to them. The second is the duty of parents to ensure that children between the ages of five and 16 attend school regularly or are suitably educated otherwise than at school.
My noble friend Lady Faithfull was anxious about health facilities. By the very nature of their travelling lifestyle it is difficult to maintain continuity of health care for travellers. However, regional health authorities are required to take account of the travellers' needs when they formulate their plans. The National Health Service Executive issued guidance in September last year which makes it perfectly clear that where a patient cannot give an address the district health authority in which the unit providing the treatment is located should accept the responsibility. There are well-established arrangements for general practitioners either to provide emergency treatment to unregistered people or to treat people as temporary residents for a period of up to three months.
The noble Lord, Lord Avebury, recognised and applauded the very considerable efforts of local authorities which have provided sites. I agree with him. Some have made a great deal of effort and expended a great deal of trouble; and I applaud them too. I was sorry that the noble Lord, Lord Congleton, said that the arrangements were going to be cast on one side. That is not so. Our proposals do not reward authorities which have not provided adequate sites for gypsies. The simple fact is that the new powers for local authorities are necessary to enable them to control unauthorised camping in their areas. It is the control of unauthorised camping which underlies the subject. The grant has continued for 15 years. We believe, for the reasons that I have given, that it is time for it to come to an end. Of course, whenever a grant comes to an end 101 reasons are put forward on why it should continue; and everyone would like it if it were to continue. But the grant has not solved the problem. Even the noble Lord, Lord Avebury, admitted that the problem would not be solved until the year 2015 or 2020.
While I understand the reasons for my noble friend Lord Stanley putting forward his amendment, I hope that he will not press it because I do not think that that would be right under the circumstances. A lot of local authority provision has been made. Much private provision has been made by the gypsies themselves. It is right that when more people wish to take on such a lifestyle they should be responsible for making that provision. If my noble friend were to press the amendment, I hope that your Lordships will reject it.
Lord Stanley of Alderley: My Lords, I might as well put your Lordships out of your agony and say that I intend to press the amendment, so noble Lords had better start to make up their minds which way they wish to go.
1562
I thank all noble Lords for their support. Perhaps I may deal quickly with the Court of Appeal case. In that case it is quite clear that New Age travellers—hippies, call them what you will—were not included. In particular, Lord Chief Justice Leggatt referred to requiring sites from the local authority. That was not my main argument however. My main argument was contained in the seven points which I made in my opening speech and I have no intention of repeating them now; it would only bore your Lordships.
We are all agreed—particularly my noble friend Lord Ferrers, who has said it a hundred times—that the problem is providing enough sites for the gypsies. We just do not have enough. I believe that my amendment would give the local authority and the private sector time to find the sites. My noble friend Lord Brentford brought up the question of the planning problem and that it takes two years even to get the sites into the structure plan. Then the gypsies have to try to apply for them, so it will take a little time. That is what I ask your Lordships to give.
I fully accept that it is a difficult problem. It goes without saying that my interest is on the farming and rural side, as I am agonised and infuriated by the unauthorised sites. However, the amendments are also supported by those on the social side of the problem and, as your Lordships know, they are strongly supported by Save the Children, so we are at one over the problem.
My noble friend Lord Ferrers chided me, as I thought he would, for asking for a delay. I am more than used to being chided and teased; I have been all my life and I shall continue to be so. Perhaps my noble friend did not realise and appreciate another recent court decision within the past few months in which a farmer was awarded substantial damages against Avon County Council for not providing sites. If we give local authorities a delay, they will start paying attention. Maybe the farming community should have taken the case up before, but once one case is taken up and has been judged—I hope I am allowed to quote the damages, I believe that they were over £70,000—local authorities might just start thinking again about their duty. That is why I wish to have a delay.
My noble friend Lord Ferrers again said that the Act has been in force since 1968, so why do we have to wait another five years to do anything? I follow the words of the noble Lord, Lord Congleton: there needs to be a political will. There may have been the political will in the recent court case against Avon County Council, but frankly I cannot believe that a single noble Lord here, when faced with a difficult decision—and this is difficult—will not put it off. I usually put the problem in the pending tray and hope that when, after a few months, it has disappeared under a heap of paper, I shall not have to sort it out.
Because of the court case and all the planning problems, the eleventh hour has come and I ask that we should give local authorities a little longer to solve the problem. I agree with my noble friend Lord Peel that the Government have done much in the Bill to try to prevent rural crime. I am truly grateful for that and I am sorry that in this case they cannot follow the argument that

1563
this legislation could well cause more rural crime as we move gypsies from one unauthorised farm site to another unauthorised farm site. Indeed, it might well pit farmer against farmer.
This is a minor correction to the Bill. I suggest that it is the kind of minor correction that is in keeping with your Lordships' revising role. I hope that it is widely supported by noble Lords; it is certainly widely supported outside. I therefore very much hope that noble Lords will support it in the Lobby. I commend the amendment to your Lordships.
6.13 p.m.
On Question, Whether the said amendment (No. 124A) shall be agreed to?
Their Lordships divided: Contents, 133; Not-Contents, 104.

Division No.2

CONTENTS

Airedale, L.

Hertford, M.

Archer of Sandwell, L.

Hilton of Eggardon, B.

Ardwick, L.

Hollick, L.

Ashley of Stoke, L.

Hollis of Heigham, B.

Attlee, E.

Houghton of Sowerby, L.

Avebury, L. [Teller.]

Howell, L.

Barnett, L.

Howie of Troon, L.

Beaumont of Whitley, L.

Hughes, L.

Beloff, L.

Hylton-Foster, B.

Blackstone, B.

Irvine of Lairg, L.

Bonham-Carter, L.

Jay of Paddington, B.

Boston of Faversham, L.

Jay, L.

Bottomley, L.

Jeger, B.

Brentford, V.

Jenkins of Putney, L.

Bridges, L.

Judd, L.

Brightman, L.

Kilbracken, L.

Broadbridge, L.

Kinloss, Ly.

Brougham and Vaux, L.

Lawrence, L.

Burton, L.

Listowel, E.

Cadman, L.

Lovell-Davis, L.

Carnarvon, E.

Lucas, L.

Carter, L.

Lytton, E.

Clinton-Davis, L.

Mackie of Benshie, L.

Cocks of Hartcliffe, L.

Mallalieu, B.

Coleraine, L.

Mason of Barnsley, L.

Congleton, L.

McCarthy, L.

Craigavon, V.

McGregor of Durris, L.

Darcy (de Knayth), B.

McIntosh of Haringey, L.

David, B.

McNair, L.

Dean of Beswick, L.

Merlyn-Rees, L.

Dean of Thornton-le-Fylde, B.

Molloy, L.

Desai, L.

Monkswell, L.

Dilhorne, V.

Monson, L.

Donaldson of Kingsbridge, L.

Montgomery of Alamein, V.

Donoughue, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Mottistone, L.

Eatwell, L.

Mountgarret, V.

Ennals, L.

Mulley, L.

Ezra, L.

Murray of Epping Forest, L.

Faithfull, B.

Newall, L.

Falkland, V.

Park of Monmouth, B.

Gainsborough, E.

Pearson of Rannoch, L.

Gallacher, L.

Peel, E.

Geraint, L.

Peston, L.

Gisborough, L.

Peterborough, Bp.

Gladwyn, L.

Pitt of Hampstead, L.

Gould of Potternewton, B.

Ponsonby of Shulbrede, L.

Graham of Edmonton, L.

Prys-Davies, L.

Grantchester, L.

Rankeillour, L.

Gray of Contin, L.

Rea, L.

Greenway, L.

Redesdale, L.

Gregson, L.

Richard, L.

Grey, E.

Rix, L.

Harding of Petherton, L.

Robson of Kiddington, B.

Harris of Greenwich, L.

Russell of Liverpool, L.

Haskel, L.

Saltoun of Abernethy, Ly.

1564

Seear, B.

Wallace of Coslany, L.

Serota, B.

Wedderburn of Charlton, L.

Stallard, L.

Wharton, B.

Stanley of Alderley, L. [Teller]

White, B.

Stedman, B.

Wigoder, L.

Strabolgi, L.

Wilberforce, L.

Strange, B.

Williams of Crosby, B.

Tenby, V.

Williams of Elvel, L.

Thurlow, L.

Williams of Mostyn, L.

Tordoff, L.

Winchilsea and Nottingham, E.

Turner of Camden, B.

NOT-CONTENTS

Addison, V.

Jeffreys, L.

Alexander of Tunis, E.

Johnston of Rockport, L.

Alexander of Weedon, L.

Kimball, L.

Annaly, L.

Kinnoull, E.

Arran, E.

Lauderdale, E.

Astor, V.

Lawson of Blaby, L

Balfour, E.

Leigh, L.

Barber, L.

Long, V.

Belhaven and Stenton, L.

Lyell, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Blyth, L.

Mackay of Clashfern, L. [Lord

Borthwick, L.

Chancellor.]

Boyd-Carpenter, L.

Merrivale, L.

Brabazon of Tara, L.

Mersey, V.

Brigstocke, B.

Miller of Hendon, B.

Bruntisfield, L.

Milverton, L.

Campbell of Alloway, L.

Moran, L.

Carnock, L.

Munster, E.

Carr of Hadley, L.

Murton of Lindisfarne, L

Chalker of Wallasey, B.

Napier and Ettrick, L.

Clark of Kempston, L.

Nelson, E.

Colnbrook, L.

Norrie, L.

Colwyn, L.

Northesk, E.

Cork and Orrery, E.

Oppenheim-Barnes, B.

Courtown, E.

Orkney, E.

Craigmyle, L.

Peyton of Yeovil, L.

Cranborne, V.

Platt of Writtle, B.

Cumberlege, B.

Rawlinson of Ewell, L.

Davidson, V.

Renton, L.

Dean of Harptree, L.

Renwick, L.

Dixon-Smith, L.

Rodger of Earlsferry, L.

Elles, B.

Seccombe, B.

Elliott of Morpeth, L.

Simon of Glaisdale, L.

Elton, L.

Skidelsky, L.

Erne, E.

St. Davids, V.

Ferrers, E.

Stewartby, L.

Finsberg, L.

Stockton, E.

Flather, B.

Strathclyde, L.

Fraser of Carmyllie, L.

Strathcona and Mount Royal, L.

Gardner of Parkes, B.

Strathmore and Kinghorne, E.

Gilmour of Craigmillar, L.

[Teller.]

Glenarthur, L.

Sudeley, L.

Goschen, V.

Swinfen, L.

Gridley, L.

Tebbit, L.

Hailsham of Saint Marylebone, L.

Thomas of Gwydir, L.

Hastings, L.

Trumpington, B.

Hayter, L.

Tugendhat, L.

Hemphill, L.

Ullswater, V.[Teller.]

Henley, L.

Vivian, L.

Holderness, L.

Wakeham, L. [Lord Privy Seal.]

HolmPatrick, L.

Westbury, L.

Hood, V.

Wynford, L.

Howe, E.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
6.22 p.m.
Lord Stallard Lord Stallard moved Amendment No. 124B:
Before Clause 79, insert the following new clause:
Definition of obscenity
For section 1 of the Obscene Publications Act 1959, there shall be substituted—
"Definition of obscenity.
1.—(1) For the purposes of this Act, any publication, whether written, printed, audible or visual, shall be deemed to be obscene if in the opinion of a jury it—

(a)

(i) contains any material of a sexual nature which is grossly indecent or degrading, or

(ii) portrays sadomasochism or degrading cruelty, or

(iii) portrays bestiality or nauseating obscenity; and

(b)is so depicted or presented that it could encourage similar acts, provided that it shall not be necessary for the prosecution to satisfy the requirements of this paragraph in any prosecution arising from bestiality or nauseating obscenity.

(2) Without prejudice to the generality of subsection (1) (a) above, where it is apparent that the publication is intended for or sold to children and young persons under the age of 18 years, it shall be deemed to be obscene if it contains any material of the nature set out in subsection (1) above without the necessity of satisfying the requirements of paragraph (b)".").
The noble Lord said: My Lords, the object of this amendment is much the same as that of the amendment moved by the noble Lady, Lady Saltoun, and supported by the noble Earl, Lord Halsbury, at Committee stage. The object of this amendment is, to quote the noble Lady, to put some teeth into the 1959 Act.
Unlike the noble Lady, while I welcome the amendments that are shortly to follow this one on videos and other matters, I regret that that amendment does not deal with books, pictures, photographs, plays, broadcasting and so on. My amendment is an attempt to try to fill that gap.
It has certainly been my experience that the present laws do not work. I think that that is the experience of most people. All sorts of excuses are made as to why that is so, but nobody seems to be too insistent on changing them. Ordinary people to whom I speak, and to whom I have spoken over the years for a long time, just do not understand why something cannot be done to improve what to them is a serious situation.
It is a widely accepted fact that since 1960 standards and moral values have declined quite dramatically in our country. They have declined since the 1959 Act came into force and they continue to do so. I shall repeat just one or two of the statistics that were used. For example, in 1961 there were 51,000 illegitimate births in this country. By 1991 the number had risen to 235,000. In 1961 there were 27,000 divorces; in 1991 there were 167,000 divorces, and that figure is still rising quite rapidly. Drug offences, rape, burglary, street crime, car crime and crimes of violence have all increased. It is a well-known fact that in some inner-city areas those crimes seem to be almost out of control. In such areas we have come to accept such statements as: "You can expect to be burgled; you can expect to be mugged". A lot of people just do not accept that, and they want to know why they have to accept it. They want to know, if something can be done about it, why it is not being done. That is a very common, ordinary and legitimate question.
I firmly believe—many people may not agree with me; certainly not Members of this House—that much of the problem arises from the permissiveness which began in the 1960s, when the Christian and moral values on which our society was, and is, built, the values on which it was founded, began to be eroded. We saw the breakdown of respect between men and women, parents and children, children and teachers and between a huge chunk of the population and the police force. We saw a lessening of respect for the elderly and infirm and a
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general lack of respect for people and their property. Something has to be done. I read the debate that took place (because I could not be here at the time) and I believe that this amendment, with the couple of alterations that we have made to it since the Committee stage, ought to meet the objections that were raised, certainly those raised by the government Minister who replied to the debate.
It seems that the original flaw in the 1959 Obscene Publications Act may lie in the requirement for a prosecuting counsel to prove to a jury that any specific material held to be obscene has a tendency to deprave or corrupt a significant proportion of persons likely to read, hear or see the matter. I fully accept that it is very difficult to prove a tendency. It is equally difficult for a jury to decide on a guilty verdict in such matters given that the wording is so vague and subjective and is open to such a variety of interpretations.
Over the years, a long succession of lawyers, judges and DPPs have criticised the wording of the Act, using such terms as "unworkable", "unenforceable", "unten-able" and "illogical", and have described it as providing a formula that cannot be applied. They have all said so. This amendment is an attempt to change that situation. I accept that it was the intention of Parliament in passing the 1959 Act to strengthen the law against pornography without penalising works of genuine artistic merit. In practice, the law has been rendered almost powerless against pornography.
The point is clearly demonstrated if we compare the modest volume of pornography that was offered for sale prior to the 1959 Act with today's huge pornographic industry. Nobody can gainsay that there is now a huge industry in pornography and that it is increasing rapidly. I need make no more speeches about how much the situation has deteriorated since the introduction of that Act and the way in which it was worded.
The substance of the material that is published has undergone substantial change over that same period. For example, the risqué girlie magazine of those days bears no comparison with today's steadily expanding trade in publications that specialise in sexual perversions of nearly every imaginable kind, including sadomasoch-ism. As long ago as 1972 the then Master of the Rolls, the noble and learned Lord, Lord Denning, criticised the failure of the Obscene Publications Act. He said that experience has shown that much material which even at first sight would appear to be pornographic in the extreme has escaped the reach of the law. The noble and learned Lord argued that the law had misfired because of the, wording of the statute and the way in which the courts had chosen to apply it. Each failed prosecution seemed to encourage the pornographers to push back the bounds of acceptability even further. It also made it extremely unlikely that the DPP would enable subsequent prosecution cases to be brought to trial owing to the extreme unlikelihood of a conviction being obtained under the 1959 statute. The decision of the Director of Public Prosecutions in respect of the publishers of the Marquis de Sade's book Juliette to the effect that:
"there is insufficient evidence to provide a realistic prospect of conviction as required by the code of prosecutors"
clearly shows the need for a new code. That book contains material which is so horrifying that the printers who produce the parliamentary House magazine refused to typeset it. The book describes and advocates violence of the most perverted kind. If I were to try to illustrate it, Hansard would probably be banned under my amendment. It would certainly be out of order. Yet Juliette can be bought by teenagers from any bookshop. After the recent horrific attacks on women and children, an urgent government review of Britain's obscenity laws would clearly have public support.
From correspondence and calls that I received following recent discussions and Questions in your Lordships' House on the Education Bill, the sex education provisions of that Bill and some of the material being published at that time, I know the strength of support to be found outside as well as inside this House for something to be done. The argument of those who oppose any tightening of the present laws, that there is no proof of a link between pornography, violence and sexual crime, is no longer credible. There is an argument that tightening of the law is on the way to censorship. That may be. But maybe there is a need for an element of censorship. Even with complete freedom, there must be some limits and some kind of code provided. There have to be some moral values and some base. I believe that is where we went wrong when the Christian values in which most of us were brought up began to be eroded.
Let me give an example of what is happening. It arose from a Question that I asked in March concerning two publications: A Sex Guide and Your Pocket Guide to Sex. Arising from my Question and the publicity it received, there were some protests and statements made by Ministers in the other place. Pressure was put on the publishers and others to withdraw the publications. I have now received the copy of a cover of a new Penguin publication in the same vein, one corner of which states: "The book the Government tried to ban". Are people so far gone that they do not take any notice at all of this place or of what we are trying to do and are cashing in on the Government trying to ban the book so that they can sell more copies of that awful publication? Most of us would reject such publications if our children were to say, "This is what I am reading now; I bought it in Smith's".
We must do something. In the meantime, the pornographers and that industry is clearly using the present Obscene Publications Act as an umbrella under which they feel free to expand their markets without let or hindrance. My amendment, worded as it is, meets the objections of the noble and learned Lord, Lord Rodger of Earlsferry, who said:
"It seems to the Government that, in so far as it can be, the law has to be in keeping with the views of ordinary men and women. That is how it is expressed by juries".—[Official Report, 7/6/94; col. 1216]
He is quite right. He does not agree with that when it comes to his final words, but he is quite right. The law has to be in keeping with the views of ordinary men and women. I defy noble Lords to find any ordinary men or women who do not agree that there is need for a change of the nature that I suggest tonight. There has to be a
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change. The whole thing has to be brought back into some kind of reasonableness. My amendment is one way of doing it.
The noble and learned Lord concluded that:
"the Government believe that the 1959 Act, as it stands, contains a formulation which has not so far been bettered, and we do not believe that this amendment would improve upon it".—[Official Report, 7/6/94; col. 1217]
That may have been true. There were a couple of words which made the amendment difficult and circuitous. We have removed those words. I now submit that the amendment as shown on the Marshalled List today meets those criticisms. I hope that the House will be able to accept the new amendment. I beg to move.
6.30 p.m.
Lord Renton: My Lords, I am sure that every one of your Lordships sympathises with the noble Lord, Lord Stallard, in his description of the general decline of morals—especially, alas! among the young—to which he referred. Let there be no doubt about that. That is the motive for his amendment. However, with deep respect to the noble Lord, I am not sure that it is a solution to the very much broader social problem which he mentioned.
I turn to the terms of the amendment. In doing so, I ought to declare that when the Obscene Publications Bill (which was a Private Member's Bill, introduced by Mr. Roy Jenkins, now the noble Lord, Lord Jenkins of Hillhead) came before the other place, I, as a junior Minister at the Home Office, had to advise the other place upon it. That was 35 years ago. I hope that noble Lords will broadly agree that the Act has stood the test of time fairly well. It has the very great: advantage of simplicity.
Its terms are truly simple. The noble Lord quoted the whole of the subsection in question. I shall quote only part of it:
"tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".
So far as I know—and others may know better—in practice that has not given rise to difficulties in the courts. Certainly it is not the only provision in the Act. Toward the end of the Act there is a section which deals with the defence of the public good. I should have thought that it would be better to stick to that provision in Section 1(1) of the 1959 Act instead of trying to replace it in the way suggested by the noble Lord, which is nothing like so simple and which will give rise to difficulties of definition—definition of terms which the jury may not easily understand. Not every juror will know the meaning of the word "sado-masochism". New paragraph (1) (b) of the amendment is another way of expressing the tendency to deprave and corrupt.
It is right that we should always be trying to improve the law. But when trying to improve a law which has stood the test of time for so many years, we must be quite sure of what we are doing. Quite frankly, I prefer the simplicity of Section 1 of the 1959 Act to the complexity of the noble Lord's amendment.
Lord McIntosh of Haringey: My Lords, it is necessary to say from this Dispatch Box—or perhaps at a discreet distance from it—that this is a matter on

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which my noble friends have a free vote. There is no issue of party policy or a Whip on the matter. At the same time, for myself I say that I am as strongly opposed to this amendment as I was to the previous one.
I was enormously impressed by the speech of the noble and learned Lord the Lord Advocate in response to the amendment moved by my noble friend on the last occasion. He pointed out, as my noble friend reminded the House, that definitions of the Obscene Publications Act 1959 have never in practice been bettered. He pointed out the fallacies of trying to define obscenity not by the purpose of the obscenity but by what is depicted. If one does that, one becomes involved in an impossible tangle of asking whether a news item or a piece of classical art or literature is to be treated in the same way as something designed for pornographic purposes. I am sure that no amendment along the lines suggested by my noble friend could ever replace the definition contained in Section 1. Any amendment which attempts to remove Section 1 of the 1959 Act is doomed to failure.
Paradoxically, my noble friend made the situation worse. Because he limited the scope of the amendment to certain things—sadomasochism, bestiality and so forth—he restricted the definition of obscenity more than he wished. He ruled out some of the provisions which the 1959 Act in its present formulation could deal with but which could not be dealt with by an amendment of the sort proposed. I beg my noble friend, person to person, not to press the amendment.
Lord Avebury: My Lords, perhaps I can point out another omission in the amendment proposed by the noble Lord, Lord Stallard, which may be considered to be of importance. In Section 79, which follows the amendment, provision is made for computer-generated images which may be a growing and even more harmful influence on the lives of young people. Much has been said and written on the subject in relation to the ease of access to pornography generated on disck, some of which is alleged to be freely available in schools, and also the more worrying phenomenon of pornography distributed over the Internet, which is freely available to anybody with a computer and modem. Perhaps when the Minister replies to the amendment he can say whether or not the Government have had any thoughts on the matter.
Whatever definition one has of obscenity, it implies that there must be some mechanism of control. Once a publication is regarded as obscene it can be seized in the bookshops, if it is a book. If it is a disk, equally the authorities can go to the people selling the disks, apprehend them and confiscate the goods. But I am not sure how we can cope with pornography that is available over electronic media; nor can I think of a remedy for pornography distributed over satellite television. There is a certain amount of that, though I am happy to say that it is not freely available in this country.
Rather than concentrate on the old forms of pornography such as pictures, magazines and text, we must consider the new facilities which the electronic media have made available to pornographers to distribute their work and how we can deal with it. At the
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same time, we must be careful not to catch the innocent sellers of images which may be caught, not necessarily within this definition but in some other definition. The noble Lord, Lord Renton, is right to say that we should consider the context in which the images are contained. I received representations from people publishing naturist magazines to say that they are afraid that some of the provisions of Clause 79 may render them liable to prosecution. An image of a naked child in a magazine addressed to the naturist community is not obscene; it is part of the normal way of life of naturists. Nobody suggests that there are any sexual connotations to such images and we would not want a definition of obscenity which was so wide as to catch that kind of image, or indeed the artistic images which have no overtones of the sort mentioned by the noble Lord, Lord Stallard.
This is perhaps not the place in which to enter into a lengthy discussion on the subject. But the Government must address their mind as to what we should do about pornography distributed through computer media, particularly the ready availability of disks to schoolchildren and the much more knotty problem of how we deal with pornography distributed over the Internet and over satellite television. I do not believe that we have the means to deal with it and I shall be glad to hear reassurances from the Minister.
6.45 p.m.
Lord Simon of Glaisdale: My Lords, as I had something to do with the 1959 Act as a Home Office Minister and meddled with its interpretation in two cases in your Lordships' House—Shaw v. Director of Public Prosecutions where I appeared as a law officer and then in Knuller as a participant in the decision—I should like to offer humbly a few observations.
First, there is no doubt that the case of Knuller gave a great relaxation to the law. Secondly, it is not realistic to say, as the noble Lord, Lord Stallard, said, that any lapse in public standards of morality have anything to do with the 1959 Act. I find it quite impossible to trace any relationship. Thirdly, the 1959 Act contains two defects, one of which has been overcome. For a long time it was misused. A famous leading counsel appeared in case after case supported by an expert witness and he took the issue posed by the 1959 Act in quite the wrong way.
As the noble Lord, Lord Renton, said, Section 1 gives the test for pornography as a tendency "to deprave or corrupt". Section 4 introduces the defence of public good. What it says, and I think is now understood, is that a work, notwithstanding that it may be obscene, nevertheless on the whole may conduce to the public good by reason of, say, its artistic or literary merit. It is a difficult balancing act to be performed by a jury but juries can perform it, weighing the evil of the obscenity against the correlated good of the artistic or scientific merit. Where it went wrong for a long time was that it was successfully argued in case after case that the obscenity was itself of value; that people benefited by contemplating the obscenity. An expert witness would be asked, "Do not your patients masturbate as a result?" He would say cheerfully, "Yes, they do, and much to their relief. As a result, the issue that was really posed

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by the Act was misunderstood in case after case. That has been rectified by a decision in your Lordships' House. I respectfully agree with the noble Lord, Lord Renton, that the Act now works reasonably well, as was intended.
The second defect is perhaps less important. The verdict of the jury masks entirely the question whether it thought the article obscene or whether the obscenity was outweighed by the artistic, scientific or other good. As a result we know very little about the way the Act has worked in individual cases. If there is an amendment to the Act I would much prefer to see it clarified that separate verdicts are brought in on the question of obscenity and any countervailing public good. Having said that, much as I admire the noble Lord, Lord Stallard, I cannot agree that the new proposed clause would improve the matter, even in the way that he seeks.
I make one final suggestion: the whole subject was reviewed about 10 years ago by a committee chaired by Professor Williams. Unfortunately, the general effect of its report was to trivialise the whole issue. The report found no favour when it was debated in your Lordships' House; it was in fact dropped. I believe, however, that it contained one valuable suggestion. That was to get away from the test of to deprave and corrupt and to ask instead: does this article outrage public decency? I would very much like to see further inquiry and exploration on those lines. In the meantime I cannot, on any approach, support the amendment.
Lady Saltoun of Abernethy: My Lords, I support the intention behind the amendment of the noble Lord, Lord. Stallard; it is exactly the same as the intention behind my amendment at Committee stage. The noble Lord, Lord Renton, said that the Obscene Publications Act had the merit of simplicity. It is all very well an Act having the merit of simplicity. But if it is not effective that merit is neither here nor there. I contend that the Obscene Publications Act is not effective.
I have to confess that I would like to see some form of censorship brought back. I know that at present censorship is a dirty word. But we have censorship through the Race Relations Act and in connection with equal opportunities. If advertising for an employee we may not specify whether that employee is to be male or female. What is that except a form of censorship? The only difference between the 1950s and nowadays is what is censored is different.
No one is quicker than myself in agreeing that this amendment, or something like it, is not the whole answer to the question. I believe, however, that it would go a little way towards helping it.
Earl Ferrers: My Lords, I know that the noble Lord, Lord Stallard, is much concerned about this matter and I respect him for standing up for the maintenance of standards and moral standards which seem to be so much under attack nowadays.
Lord McIntosh of Haringey: My Lords, the Minister is not suggesting that moral standards have been under attack in this House this evening, is he?
Earl Ferrers: My Lords, certainly not. I do not know where on earth the noble Lord, Lord McIntosh, gets that
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idea. I had better start again if the noble Lord is going to be so finicky as to try to trap. I was merely commenting and commending the noble Lord, Lord Stallard, in general for standing up for certain standards which, on the whole, seem to be under attack outside this House.
I want to make it perfectly clear to start with that the Government have no doctrinaire attachment to the tendency to deprave and corrupt test of obscenity which is currently part of the Obscene Publications Act 1959. As we have often said, if anyone could devise a new test which seemed to us to be better than the existing one, we would be content in principle that the law should be changed, if, of course, Parliament also wished it. But while the Government certainly share the noble Lord's concerns, I could not, as he and other noble Lords realise, advise noble Lords to accept the amendment.
The Obscene Publications Act 1959 makes it an offence to publish, or possess for publication for gain, any article which, taken as a whole, has a tendency to deprave and corrupt those likely to read, see or hear the matter contained or embodied in it where an "article" —I mean this in the legal sense and not the journalistic sense—is made up of distinct elements, for example, separate features in a magazine. The article may be found obscene if any one of those elements, taken as a whole, has a tendency to deprave or corrupt. Section 4 of the Act provides that no offence is committed if the defendant can prove that publication of the article concerned is justified as being for the public good on the grounds that it is in the interests of science, literature, art or learning, or other objects of general concern.
I suppose that the main criticism of the current "deprave and corrupt" test, is that it is imprecise, archaic and difficult for jurors to understand, with the consequence that too few prosecutions for obscenity are brought, and too few of those succeed. But, the statistics do not altogether bear this out. In 1993, there were 213 prosecutions and 172 convictions for obscenity offences under the 1959 Act. Figures for seizure and forfeiture under Section 3 of the Act are not collected centrally but from inquiries which have been made of the Metropolitan Police we understand that in 1993 they alone seized 147,716 obscene items which is not a bad trawl.
As for imprecision and uncertainty, one of the advantages of the current test is its adaptability. It is not confined to precise subjects, and certainly not to pornography. It can catch any material which has a tendency to deprave and corrupt, whether it is concerned with drug taking, sexual perversions, violence, crime, or instructions for bomb-making.
At the beginning of this year my right honourable friend the Home Secretary looked carefully at the various proposals which have been made for a new test of obscenity over the years, as well as at a test suggested by Mrs. Ann Winterton MP. These tests fall into two main camps; those which provide a list of subjects which may not be depicted, and those which prohibit depictions which are grossly offensive. The noble Lord's amendment, I think, falls somewhere between the two.

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Both of these approaches have significant disadvan-tages however. A list approach is inflexible and essentially arbitrary; inevitably some things are missed out, while other things may be inadvertently included under a broad general heading which we would wish to exclude on more careful thought. A gross offensiveness test is at least flexible, but it seems wrong in principle to ban something just because some people, or even most people, may be offended by it. Many things may be offensive to many people, but this is not, in itself, a reason to ban them. The current deprave and corrupt test concentrates on the harm which an article may do to those who are exposed to it, and this seems to be right in principle.
When my right honourable friend considered the alternatives to the current test, he asked himself, as I think your Lordships should do now, what difference they would make in practice. It is impossible to predict which articles, or even which broad categories of article currently escape the test of obscenity but would be caught by the test of the noble Lord, Lord Stallard, which is, I am bound to say, vague and uncertain, and to some extent a little confusing. The proposed amendment contains a variety of different criteria for determining whether an article is obscene. These are to be applied in different combinations according to the circumstances of each case. The definition of obscenity would be almost circular, as one of the criteria as to whether an article is obscene depends on whether it portrays "nauseating obscenity". So what is obscenity? It is something that is obscene. What is obscene? It is something which portrays "nauseating obscenity"—and so we go round and round. The criteria also contain elements such as "degrading violence", "nauseating obscenity", "lewd" material, all of which are undefined, and all far from providing a more certain and objective test than the current test of obscenity.
In general, articles would be found obscene under the proposed test only if they "could encourage similar acts" or conduct. In fact, this is probably more restrictive than is the current requirement that they should have a tendency to deprave and corrupt. This does not necessarily imply any effect on actual conduct but it may simply refer to moral degeneracy, or to the continuance of an already corrupt manner of life.
As I have said, one of the virtues of the current test of obscenity is that it can apply to any type of material which has a tendency to deprave and corrupt, and it is not confined to pornography. The noble Lord's amendment would cover only sexual material, violent material, and material concerned with controlled drugs. It would not, for example, cover material which glamorises a life of crime, or instructs people in how to make bombs, both of which can be covered under the present definition.
If the objection to the current test is that it is too difficult for juries, I am bound to say that I do not think that jurors would find the noble Lord's proposed new test much easier to apply—rather the contrary in fact. But I wonder whether juries do find the existing test difficult.
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There has undoubtedly been a change in standards of public acceptability over the years. I think that many of your Lordships would agree also that the change has been for the worse. I think that the noble Lord, Lord Stallard, certainly would do so. However, it is difficult to attribute this change to any particular deficiency in the law, which has remained the same since 1959, and which is indeed almost identical to the common law of a century ago. I think the truth is that social mores have changed as a whole, and people are simply not as shocked, or shockable, as they once were. This may be a pity and I, for one, think that it is highly regrettable, but I doubt whether any amendment to the test of obscenity would reverse this process.
The noble Lord, Lord Avebury, referred to the damage which computer material and disks can do. He will note that Amendment No. 126A in the name of my noble friend Lord Gisborough deals with disks. The Bill strengthens our controls on obscenity, and particularly on computer pornography, by making it clear that transmissions between computers are covered by the Obscene Publications Act; by extending the law to cover child pornography which is manufactured by computer; by making it an imprisonable offence merely to possess child pornography; by increasing the penalties for obscenity offences in Scotland and by making obscenity and child pornography offences in England and Wales serious arrestable offences. The Bill strengthens those areas considerably.
However, I should not like to be discouraging to the noble Lord, Lord Stallard. The Government take very seriously the threat that is posed by the worst kinds of obscene material. That is why we have included the existing provisions of Part VII. It is vital that the law should keep pace with advances in modern technology, such as computer pornography, and especially computerised child pornography. As I have said, the Bill also makes obscenity offences arrestable, and it will give the police increased powers to obtain evidence against pornographers. It provides a possible prison sentence for those found in possession of child pornography, and it brings the penalties for obscenity offences in Scotland into line with those in England and Wales. I do not think that anyone can justly accuse the Government of taking no action on this matter.
Although I understand the concern of the noble Lord, Lord Stallard, I am bound to tell him that we do not believe that this amendment would improve the law. Indeed, if it were adopted there is a strong risk that the law might actually be left in a worse position—by being left in an ambiguous and confused state which would inevitably create an area of opportunity for the pornographers to exploit to their advantage.
7 p.m.
Lord Stallard: My Lords, I have listened carefully to all those who have participated in the debate. I must confess that this is what I expected. I did not expect that my amendment would receive the acclaim of your Lordships' House. However, I am a bit disappointed that the Government were not more positive. I had thought that this Government would at least appear to be more positive to any alternative provisions to try to stop

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the flood of pornography which concerns us all. In view of that, I should be happy if the Minister were to say to me that the Government will come forward with a better amendment to do the job that I have sought to do. If the noble Earl could say that, it would help everybody. However, from listening to him, it seems that the Government are simply sitting back and saying that this has been the law for 35 years. It seems that until some change is forced upon them by public opinion, nothing will happen. I hope that the public will listen to small debates like this because even if people think that I am wrong—they may think that the Government are wrong —at least the debate will have started.
The noble Lord, Lord Renton, said that the 1959 Act is simple. That is supposed to be its merit. However, I have read umpteen opinions from a succession of lawyers, judges, law lords and directors of public prosecution. All have criticised the wording of the 1959 Act, using words such as unworkable, unenforceable, untenable, illogical and saying that it provides a formula that cannot be applied. Therefore, it does not seem to me that the colleagues of the noble Lord, Lord Renton, in the legal profession think that the provisions are simplistic. In fact, I think that the opposite is the case. The Act is too complicated for even those lawyers to be able to make sense of it. The Act needs changing.
If we let this opportunity slide by, nothing will be changed. That is obvious from hearing the contributions from the other side and the Minister's remarks. I am sad that the noble and learned Lord, Lord Simon of Glaisdale—I have the utmost respect and admiration for everything else that he does—is wrong because he does not agree with me on this. I am sad about that, but I do not believe that the Act is working.
If the Act were working, there would be much more success than that to which the Minister was able to point. The statistics that he gave show minimal effort given the size of the problem. We are talking about a problem running into hundreds of thousands of cases, not a paltry few hundred offences here and there. Pornography is a big industry and the 1959 Act is obviously not good enough, not strong enough —and too complicated—to be able to deal with it. Indeed, it is so complicated that even lawyers and DPPs cannot understand it.
Therefore, something has to be done and, in the absence of anything else, I suggest that my amendment would at least improve the existing position. It might even take the debate a step forward. I seek the views of your Lordships on that.
Division called.
The Deputy Speaker (Lord Strabolgi): My Lords, the Question is that Amendment No. 124B be agreed to. As many as are of that opinion shall say, "Content". On the contrary, "Not-Content".
Noble Lords: Not-Content.
The Deputy Speaker: The Contents will go to the right by the Throne.
Noble Lords: No.
The Deputy Speaker: My Lords, the amendment is therefore negatived.
Lord Annaly: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that Report stage begin again not before 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Local Authorities (Charges for Land Searches) Regulations 1994
7.15 p.m.
Viscount St. Davids Viscount St. Davids rose to move, That the draft regulations laid before the House on 4th May be approved [18th Report from the Joint Committee].
The noble Viscount said: My Lords, this short but important measure has been considered by the First Standing Committee on Statutory Instruments in another place where it received the support of the Opposition spokesman. It has also the support of the local authority associations. It follows wide consultation with, among others, consumer organisations, the CBI, the Law Society, and other representatives of the professions concerned with property transactions.
The regulations are designed to provide a specific power for local authorities in England and Wales to charge for dealing with inquiries made in connection with house purchases and other property transactions. The amount of the charge will be at the authority's discretion; but in setting charges, the authority will be required to have regard to the costs of answering those inquiries. The inquiries in question concern planning, highways and other matters, information about which is important to prospective purchasers.
Local authorities have been dealing with, and charging for, those inquiries for over half a century; but it has recently been drawn to the department's attention that the local authorities in England and Wales have no clear charging power for that purpose. We need to act to rectify that situation. There would be serious consequences for the property market if local authorities were to withdraw that service for lack of any charging power.
My right honourable friend the Secretary of State announced for consultation in March proposals for new statutory arrangements for local authorities' handling of land search and related inquiries. Those proposals include powers to enable local authorities to deal with and charge for a wide range of inquiries. The details of the scheme are currently being worked out, taking account of responses to the consultation; but a new statutory scheme, with new powers, will require primary legislation and must therefore await a suitable legislative opportunity. We can however act in the interim to provide a clear charging power for the inquiries with which local authorities are currently empowered to deal. We can do that by means of the regulations which are to be made under Section 150 of the Local Government and Housing Act 1989. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 4th May be approved [18th Report from the Joint Committee].—(Viscount St. Davids.)
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Viscount for introducing the regulations. We from the Opposition welcome it. I have only two or three questions to ask the noble Viscount about the order. In the first place, I refer to Regulation 2, (which relates to "answering enquiries". Are we to assume that the status of inquiries is established? There may be a telephone call; there may be a letter. What is an inquiry? What is formally an inquiry? Perhaps the noble Viscount can assure me on that.
Secondly, on Regulation 2(1) (a) relating to "the authority's functions", I take it that the regulation relates only to the functions of authorities in England and Wales, which are of a planning nature? I hope the noble Viscount will be able to confirm that. Thirdly, in Regulation 2(1) (b), "any interest in land" is the expression used in the regulation. I take it that that has nothing to do with housing; that this is an authority which has land in which it has an interest, and if it wants to sell off, for instance, a council house, and someone makes an inquiry about the sale of a council house, that that is not subject to Regulation 2?
Lastly, perhaps I may ask the noble Viscount about Regulation 2(3) which states:
"A charge imposed under this regulation is payable by the person making the enquiry",
If the charge is in respect of a transfer by the authority of any interest in land, and if then the person making the inquiry wins the case, or, as it were, prevails, is that still a charge on the person making the inquiry or are costs in that case borne by the local authority? I do not wish to pick nits, but I believe that those are questions that the noble Viscount may wish to answer.
Viscount St. Davids: My Lords, as regards the noble Lord's first question, there is a lengthy local authorities' inquiry form entitled CON. 29, which is published by the Law Society. In the first part, headed standard inquiries, it poses some 16 questions with optional inquiries covering a further 16 questions. Some of those questions have more than one part. It is in the use of CON. 29 to which these regulations mainly apply.
Lord Williams of Elvel: My Lords, I am grateful to the Minister. Is he saying that unless someone making the inquiry fulfils CON. 29 it is not an inquiry under the order which the House is considering?
Viscount St. Davids: My Lords, the inquiries about which we are talking fall under the regulations we are considering. It is almost certainly the practice that the inquiries will be made in writing. As regards the noble Lord's second question, the regulations are specifically designed to allow local authorities to charge for answering inquiries made in connection with property transactions. Any proposals to allow charging for inquiries relating to some other purpose would need to be considered separately.
The noble Lord's third question related to the phrase "in land". That includes all property whether it be land
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or housing. It relates to property in general. In answering the noble Lord's fourth question, I understand that the charges are made for the inquiry.
Lord Williams of Elvel: My Lords, before the Minister finally concludes, perhaps I may clarify one matter. He said that almost always inquiries will be made by reference to CON. 29. What does he mean by "almost always"? Is it always or is it sometimes? We need to know what we are talking about. Either there is an inquiry under a specific procedure which is written, as the Minister pointed out, or there is a telephone inquiry which may take up to three-quarters of an hour of a local authority's time and that may be charged.
While the Minister is obtaining news from elsewhere, perhaps I may deal with a second point. I was interested to hear him say that inquirers on sales of council houses can be charged by the local authority which, a fortiori, owns the house in question. I had not understood that point in the regulations. Is it really the case that if a council wishes to sell a council house and bids are out for the council house, all inquiries, presumably in the correct form, can be charged to any person who makes an inquiry about the house regardless or whether or not he or she concludes a contract to buy the house? If that is the case I should be grateful if the Minister would spell it out in words of one or two syllables because it seems to me to be unfair. If I have a house which I wish to sell I do not charge a prospective buyer the cost of my telephone calls, his telephone calls to me or his applications to me. Nor does my estate agent. I should be grateful if the Minister could assure me on those matters.
Viscount St. Davids: My Lords, an inquiry does not have to be on CON. 29 but that is the usual practice. It could be received in the form of a letter or any other type of written inquiry. Someone wishing to acquire a property would require the information to be made to them in a written form. I do not believe that one would wish to rely purely on the information received as a result of a telephone call.
The noble Lord asks about charging. The regulations provide for the local authority to make charges at its discretion. They are not mandatory.
Lord Williams of Elvel: My Lords, I am obliged to the Minister. I find it odd that a council wishing to sell a council house can charge for an inquiry in writing. I understand that no telephone calls are allowed and that all inquiries must be made in writing. I find it odd that the council can say, "You have asked about this particular house. It is 3 Acacia Avenue and these are the details. You have asked in writing and therefore the charge is made to you". No estate agent in the world would charge for that. And no owner in the world, if he had any sense, would charge for that.
I do not wish to pursue the matter. If the Minister insists that councils will have the right to do that no doubt that is so. I find it odd, however, that in the context of the property market these regulations should pass without clarification of the point I have raised.
Viscount St Davids: My Lords, the noble Lord was not right in saying that I said that inquiries will always

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be made in writing. I said that it is the practice that they should be written. CON. 29 is a pro forma of the type of questions that will be asked. They cover issues such as road schemes, development plans, the maintenance of roads and notice under planning Acts. I suggest that one would wish to have a written record of that. The regulations do not relate to the local authority's costs incurred in selling a house. They cover the cost of supplying information about planning, highways, the matters I listed and other matters relating to the property.
On Question, Motion agreed to.

Weights and Measures (Cosmetic Products) Order 1994
7.27 p.m.
Viscount Goschen Viscount Goschen rose to move, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee].
The noble Viscount said: My Lords, in moving the Motion standing in my name on the Order Paper, it may be for the convenience of the House if both Motions on the Order Paper are discussed together.
The draft Weights and Measures (Cosmetic Products) Order would complete the implementation in United Kingdom law of the European Community directive which harmonises the laws of member states on sales of cosmetic products. The principal change to UK law would be to require pre-packed cosmetics such as perfumes and moisturisers in quantities of 5 grammes, or 5 millilitres, or more to bear an indication of quantity. At present, pre-packed cosmetics must generally be quantity marked above 12 grammes, or 12 millilitres.
The other Motion relates to the draft Weights and Measures (Intoxicating Liquor) (Amendment) Order. The present law requires the phasing out from the end of this year of the use of Imperial measures for the sale of the four most popular spirits—gin, rum, vodka and whisky—for consumption on licensed premises. From 1st January 1995 these spirits may be sold only in a quantity of 25 millilitres and multiples. The draft order permits these spirits also to be sold in a quantity of 35 millilitres and multiples thereof. The order would therefore maintain choice for licensees in the quantity of spirits they may offer to the public.
Both draft orders follow consultation by the Department of Trade and Industry with more than 100 organisations representing trade, consumer and enforce-ment interests. I commend the order to the House.
Moved, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee].—(Viscount Goschen.)
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Viscount for introducing the two Motions. I have no problem with regard to the second order. The problem with regard to the first seems to me that, as I understand the explanatory note, it implements a Council directive. Therefore, would it not be more appropriate to make the order under the European
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Communities Act rather than under the Weights and Measures Act, which is not a suitable vehicle for implementing Community directives?
Viscount Goschen: My Lords, no. The matter is fairly straightforward. The draft order substitutes the definition of cosmetic products contained in the directive—that of perfumery and toilet preparations— set out in the Weights and Measures Act 1985. It also requires retailers to indicate the quantity of sales of non pre-packed cosmetic products such as shampoo refills and bath beads. Thirdly, it exempts from the requirement to indicate weight or volume products sold by number such as lipsticks and products intended for single use such as individual sachets of shampoo. In view of that explanation, the Government believe that it is entirely appropriate for the order to be made in this way.
On Question, Motion agreed to.

Weights and Measures (Intoxicating Liquor) (Amendment) Order 1994
7.30 p.m.
Viscount Goschen: My Lords, I beg to move the second Motion standing in my name on the Order Paper, to which I have just spoken.
Moved, That the draft order laid before the House on 10th May be approved [19th Report from the Joint Committee].—(Viscount Goschen.)
On Question, Motion agreed to.
Viscount St. Davids: My Lords, I beg to move that the House do now adjourn during pleasure until quarter past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.31 until 8.15 p.m.]

Criminal Justice and Public Order Bill
Consideration of amendments on Report resumed.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 125:
After Clause 82, insert the following new clause:
( "Sexual offences against children outside United Kingdom

.—(1) Any sexual offence committed in any jurisdiction outside the United Kingdom, including the aiding, abetting, counselling or procurement of the commission of such an offence, shall be triable and punishable as if it had been so committed in the United Kingdom if—

(a) the act in question is punishable according to the law of the jurisdiction where it occurred; and

.(b) the act in question is punishable according to the law of the relevant jurisdiction in the United Kingdom; and

(c) the act in question is committed against a child; and

(d) the perpetrator of the act in question is a citizen of the United Kingdom or ordinarily resident in the United Kingdom.

(2) For the purposes of this section. "a child" shall be defined as any human being below the age of 18 years.

(3) In this section, "sexual offence" has the meaning given by section 31(1) of the Criminal Justice Act 1991.

(4) Nothing in this section shall affect the legal principle of double jeopardy.").

The noble and learned Lord said: My Lords, this proposal was debated in Committee. I venture to return

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to it for two reasons. First, several noble Lords who were not able to be present on the earlier occasion were kind enough to indicate to me their concern on the subject and have encouraged me to raise the matter again. Secondly, I tried to explore some of the matters which, as the noble and learned Lord the Lord Advocate then explained, were in the mind of the Government. I hope that I shall be forgiven, if not positively commended, if I do not repeat this evening everything that I said on the earlier occasion.
The facts of such a foul trade and the sufferings of the children involved are now well known to your Lordships. Following our last debate, I was fortunate to form part of a delegation which discussed the subject with the Minister of State, Mr. Maclean. I believe that we were successful in crystallising what is really in issue between us. As I understand it, it is not disputed by the Government that in a number of cities, principally in Asia, there is a tourist industry patronised by paedophiles from the West. For my part, I would not dispute the fact that the industry is not run exclusively for Western tourists. Of course, there are also local paedophiles. I shall say only that a substantial proportion of those children suffer as a result of people who travel from countries in the West, including this country, and return there afterwards. I suspect—indeed, I shall put it more strongly—I am sure that the Government share our concern in that respect.
I hope that I do not misrepresent the Government in adding that, as I understand it, they do not now seem to place great weight on some of the arguments which they ventilated in the past. In the former debate, the noble and learned Lord the Lord Advocate appeared to suggest that it would be a mistake for countries in the West to attempt to prevent such practices because that would remove the incentive for the countries where the offences take place to address the problem themselves.
If that argument was ever intended seriously, I believe that the Government now accept that it is precisely those in the governments and in the non-governmental organisations in countries like Thailand, Sri Lanka and the Philippines who are most troubled by such traffic and who would be most anxious to deal with the matter locally. They are most insistent that, because of the substantial financial interests involved and the corruption in certain sections of the police and other agencies, they need the help and support of countries in the West. In recognising that, as I understand they do, the Government have provided the answer to the second argument which previously they advanced; that since the authorities in countries where offences take place can apply for extradition we should leave those offences to be dealt with in that way.
Leaving aside the problem with the Philippines, where this country has no extradition arrangements, we do not receive applications for extradition. I ventured to ask the Minister of State how many applications for extradition have been received from countries involved with this kind of offence. Understandably, he was not able to specify figures without notice although he was fair enough to indicate that he did not believe that the figures would transpire to be strikingly high. Perhaps
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the noble and learned Lord is now in a position to answer that question, although I will understand if he cannot.
I am grateful to the Minister of State for that discussion. I believe that what is now between us is reduced to a single issue. The Government accept that these practices exist. They accept that in consequence children are condemned to be exploited and, in a tragic number of cases, to die of disease, or if not, to die simply of exhaustion. The Government accept, as I understand it, that all the international agencies concerned with the matter, and all the non-governmental organisations which were referred to in our former debate, recommend the acceptance of extra-territorial jurisdiction. They accept that unless action is taken in the West, the problem is unlikely to go away because the countries where the offences take place are not able to deal with them for the reasons that I have mentioned. They accept that this step has already been taken by Sweden, Germany, France and Norway, and that the Australian federal legislature has accepted the principle and is now simply deliberating the details.
The one issue which remains outstanding is that the Government do not believe that it will prove possible to obtain the evidence which will enable prosecutions to be mounted in this country. As I understand it, that is the sole issue which remains between us. I hope I may be forgiven if I confine the remainder of what I have to say to that one question.
In our earlier debate, reference was made to the possibility of this country stationing officials in the cities where these practices are known to exist. That would not entail any serious call on resources. We are concerned at most with some half dozen cities. Of course, they would need the consent of governments locally. They would have no police powers in those jurisdictions. They would need to work with the local enforcement authorities, and they, of course, are not always above corruption. But they would almost certainly have the support of the most senior figures in government there. Corruption, of course, is much more difficult to operate when those on the spot are officials from western countries whose function it is to initiate action. This is a method of operating which this country uses in relation to the obtaining of evidence relating to the international drugs traffic. We have seen a number of prosecutions brought to a successful conclusion on the basis of evidence obtained in that way.
Again, in our earlier debate the noble and learned Lord, Lord Wilberforce—he asked me to explain that he had to leave us at that stage—pointed out that a number of non-governmental organisations have agents with a high degree of expertise working in those cities. They could provide a reliable source of information and evidence. I am sure that the noble and learned Lord would not be surprised to learn that other countries who have legislated for extra-territorial jurisdiction have not been wholly unmindful of the problem which the Government now urge. Since our earlier debate I have been able to undertake some exploration.
One example which was quoted by the noble and learned Lord in our earlier debate is that of Germany, which has similar legislation on the statute book. We

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were told that proceedings had been brought there, all of which had failed. It transpired that there were, in fact, three cases. Of course, not every prosecution will succeed in any jurisdiction which provides a fair trial. That: was a very small sample and it may be that in any event no significant conclusions could have been drawn from it. However, I ventured to ask the reasons why the prosecutions had failed. The Home Office was not able to give that information. Indeed, it did not seem to be clear from whence the information had come. The Coalition on Child Prostitution and Tourism made inquiries in Germany and it was unable to trace information about any prosecutions there. The German Embassy in London had no knowledge of the subject. It now appears, as I understand it, that the information on the Home Office files came from someone in the British Embassy in Thailand who was not quite clear where he had heard the information but who thought that he recollected hearing it from someone in the German Embassy in Thailand. Unless the noble and learned Lord can shed further light on the matter today there does not appear to be any information from Germany on which your Lordships would wish to place much significance.
The Australian House of Representatives, when considering equivalent legislation, was concerned with precisely this problem. It referred the Bill to its Standing Committee on Legal and Constitutional Affairs. The committee made a number of recommendations, seeking to rectify defects which I do not think are principally part of the proposals before your Lordships. For example, it recommended the removal of a provision that the evidence of a child must be by video link and instead suggested leaving that possibility to the discretion of the court. It has completed its deliberations and in its tabling statement said:
"The Committee has been concerned to ensure that a Bill which has almost universal political support for its fundamental objective is workable and effective".
The committee further stated:
"The Committee believes that certain clauses can be successfully redrafted to ensure the Bill is effective and enforceable without abandoning the safeguards that have been traditional elements of the criminal law".
The prosecutions which were anticipated in Norway and in Sweden are now proceeding. In the Swedish case, evidence is being taken in Thailand. That practice is, of course, available to the criminal courts here under Section 23 of the Criminal Justice Act 1988. Of course, evidence in cases of child abuse always presents a difficulty. It is not to be expected that there will be a large number of prosecutions, nor that all those which take place will necessarily be successful. I do not believe that it will require a large number of prosecutions to send a message that this is not an offence which can be practised with impunity.
I do not believe that the difficulties are of the order which the Government suggest. I believe that the possibility of proceedings would have a powerful impact on this industry. In particular, I believe that tour operators would be discouraged from arranging these tours because they would know that there will be those who will be assiduous in bringing them to justice.
Historically, this country has an enviable record in the fight against slavery. Indeed, offences in connection
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with the slave trade are among those which, if committed by a British subject, may be prosecuted in this country. It would be a tragedy if with that record in respect of adults we were to refuse our help in protecting children. I beg to move.
8.30 p.m.
Lord Blyth: My Lords, I do not often speak in this House, but I speak with a certain knowledge, but not of the Far East. I should like to know what are the possibilities for blackmail in this instance. It is easy to make an accusation against somebody. I could see this developing into a nice little industry.
I support the idea in principle but I would have problems with the age mentioned. In many parts of the world sexual activity begins at a fairly young age and that is accepted. I have no quarrel with the noble Lord in his wish to protect children. Equally, I feel that such a provision would be open to abuse. I do not know what other noble Lords think about that.
Lord Elton: My Lords, it would be strange if nobody were to comment on the manner of the proposal rather than the content. It is unusual for an amendment to be presented, defeated and re-presented in exactly the same terms in successive stages of a Bill. I for one would not want this occasion to pass without saying that it should not be regarded as a precedent. I hope that the numerous Peers who advised the noble and learned Lord, Lord Archer, to do that are here to support him.
Having said that, if it transpires from the Government's answer that the situation has materially changed, there may be an argument in favour of what the noble and learned Lord is doing. I do not wish to present myself as being hostile to his proposition, but I am hostile to the method of asking the House to address the same question twice in successive stages. That is explicitly out of order at Third Reading. It is not out of order at this stage. Therefore, I hope that I shall not be thought curmudgeonly in asking your Lordships to regard it with a little anxiety.
Lord Archer of Sandwell: My Lords, before the noble Lord sits down perhaps he should know that I took careful advice on the matter. I was told that not only was this technically in order but it is regarded as a perfectly proper practice and not necessarily a practice to be discouraged. It depends upon all the circumstances. I was told that in the present circumstances there was no reason to discourage it.
Lord Elton: My Lords, the absence of resonant "hear, hears" when I made my feeble protest suggests that this is an occasion when it could not be discouraged.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, for my part I did not feel that it was a matter for adverse comment that the noble and learned Lord, Lord Archer, had raised the matter again. It is a matter upon which I should have thought all Members of the House had profound feelings. We have indeed considered it and voted on it.
As I indicated on the previous occasion, our position is not in any sense one of triumphalism, nor are we at

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odds with the aim which the noble and learned Lord seeks to achieve. The only area where we part company with the noble and learned Lord is as to whether this is the way in which that aim is best achieved. It is in no happy sense that I repeat that we are not satisfied with the method chosen by the noble and learned Lord. I accept that he speaks on behalf of a large number of organisations which have considered the matter carefully. Nonetheless, we believe that while this has the appearance of a solution it is not an actual solution.
Leaving aside what is the best remedy, nonetheless, as I am sure the noble and learned Lord will accept, this is a problem which is best tackled locally if that is possible. I say that because, besides anything else, according to our best estimates in certain areas and in Thailand in particular the problem is one of child prostitution in which 70 per cent. of the customers of the child prostitutes are local rather than from overseas. We accept that that leaves 30 per cent. from countries which we broadly call the West. Nonetheless, the fact remains that the trade has a great deal of local support. If it is to be stamped out, as I am sure all noble Lords would wish, action must be taken locally.
On the previous occasion we were told the arguments in general. As the House will forgive the noble and learned Lord, Lord Archer, for not going over all the arguments, I am sure that noble Lords will forgive me if I do not go over all the points that were made on that occasion.
It is not altogether clear whether the possibility of prosecutions in this country would give rise to the possibility of blackmail, as my noble friend Lord Blyth suggested. However, I return with no sense of delight to the point that we are not satisfied that prosecutions in this country would work. I do not have figures for the number of extraditions or prosecutions in countries which have accepted jurisdiction. Nonetheless, I can say that our information on the position in Germany came from the German ambassador to Thailand. At a meeting of various Western ambassadors, Thai authorities and others in Bangkok to discuss this problem, the German ambassador indicated that there had been three cases (which I accept is not a large statistical sample but the noble and learned Lord will accept that there will not be a great many cases). In those cases the prosecutions had failed. The reason for that failure had been the lack of evidence from Thailand. We believe that that indicates there is justification for our fear that even if we introduced this provision as a theoretical possibility, in practice it would not prove possible to mount prosecutions in which there was a likelihood of success. I do not need to say to the noble and learned Lord that the likelihood of success is one of the factors which has to be borne in mind in deciding whether to mount a prosecution.
As I said on the previous occasion, we are willing to look at the position and to consider whether experience from elsewhere shows that we are right in the attitude that we have adopted. For the reasons that I have given, at present we are not satisfied that this is the correct way forward. We feel that concentrating on the local situation is better.
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The noble and learned Lord, Lord Archer, referred to the position in Australia. The position in Australia is particularly significant because the Australian legal system is more like ours than the others to which he referred. The noble and learned Lord referred to the fact that at present a proposal is going through Parliament in Australia to introduce legislation on broadly similar lines. As he fairly admitted, certain problems are being considered. If experience indicates that that legislation works, we are quite willing to learn from that. We shall keep the position under close surveillance.
However, at present we are not satisfied that the amendment is the correct way forward. We believe that such measures as we indicated on a previous occasion, albeit not the most heroic, are nonetheless the most effective way forward. For that reason, I regret that I am not able to accept the amendment.
Lord Archer of Sandwell: My Lords, the debate has been substantially briefer than that at Committee stage. I was interested in the comments of the noble Lord, Lord Blyth. I would go to the stake with him to ensure that any prosecutions resulted in fair trials. Of course we have to be careful that no injustice results from such legislation. I do not believe that is an issue between us. The countries which have legislated in this respect have had that matter much in mind.
As to what was said by the noble and learned Lord the Lord Advocate, I accept that this trade does not exist entirely on tourism from the West. I believe that a substantial part does. There are those locally who believe that something could be done to put an end to this foul business if they were supported by governments in the West. The noble and learned Lord appeared to suggest that perhaps the issue could be dealt with—I do not believe he said "satisfactorily"—more satisfactorily locally. But we all know that it is not being dealt with for the reasons that have been ventilated in this series of debates. Senior officials in the governments of the countries concerned would like to have our support. But I agree that the issue between us is whether it would be possible to obtain and present the evidence which would enable prosecutions to be launched successfully.
I have the misfortune to disagree with the noble and learned Lord. However, I accept that he and the Government have directed their minds to the question. I do not believe that it is an appropriate moment again to test the opinion of the House. I hope that we can remain in touch. As the noble and learned Lord says, within a fairly short time there will be further evidence which we can all study. On that basis, and for those reasons, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Birkett Lord Birkett moved Amendment 125A:
After Clause 82, insert the following new clause:
("Criteria for forfeiting exempted status
. After subsection (2) (c) of section 2 of the Video Recordings Act 1984, leave out from ("or is designed") to end of the section and insert—
("(d) Illegal use of drugs;
or is likely to any significant extent to stimulate or encourage anything falling within paragraph (a) or, in the

1587
case of criminal behaviour or anything falling within paragraph (b) or (d), is likely to any extent to do so; or is likely, whatever the video work depicts, to cause harm to children or young persons or, through their behaviour, to society.").").
The noble Lord said: My Lords, I have put forward these amendments because there is a curious and rather alarming anomaly in the operation of the Video Recordings Act. When your Lordships were last in Committee upon this section of the Bill, I was, alas, in Zurich on musical duties and could not be present. However, I have read Hansard carefully from cover to cover on that subject. The debate centred around the amendments proposed by the noble Earl, Lord Ferrers, and indeed carried by your Lordships. Those are amendments which I entirely support, and, as vice-president of the British Board of Film Classification shall have to have much regard to in the future. However, the debate centred upon the nature of the certificates issued by the British Board of Film Classification.
The anomaly to which I refer is the large number of videos which are exempt from being classified. The Video Recordings Act states that,
"a video work is for the purposes of this Act an exempted work if, taken as a whole—(a) it is designed to inform, educate or instruct; (b) it is concerned with sport, religion or music; or (c) it is a video game".
Your Lordships may consider those sensible exclusions because it would be vastly counter-productive for the producers of videos and for the British Board of Film Classification if it were required to certificate the miles of footage which exist on instructions on how to play every known game in sport, on music and on perfectly legitimate education work. Those should be exempt. However, the provision in the Act states that the provision is forfeit only if a work to any significant extent depicts,
"(a) human sexual activity or acts of force or restraint associated with such activity; (b) mutilation or torture of, or other acts of gross violence towards, animals or humans; and (c) human genital organs or human urinary or excretory functions".
Noble Lords may consider that those are perfectly good reasons why a video should forfeit its exemption.
The problem is that at present there are in existence instructional videos—I cite two examples—which are entirely exempt because they do not contain any of the three factors that I have just read to your Lordships. One is called "Deadly Explosives". The video will instruct one on how to concentrate explosives to blow a hole through armour plating using an empty wine bottle and three wooden stakes; making a hand-held napalm bomb from a lemonade container; and tips on how to blow apart an office colleague with a desk top bomb designed as a toy.
Another example is a martial arts video called "Black Medicine, Vital Targets, Maximum Punishment". The most notable martial arts advisers in this country have said that it is a do-it-yourself cocktail of death. The methods could maim or kill and are extremely dangerous. It cannot be sensible that such videos, instructional though they may claim to be, should circulate freely with an exemption from any necessity to be classified.
I have therefore produced an amendment which, I hope, copes with these issues in three ways. First, it inserts a new section after the three that I have already read which would forfeit exemption. Paragraph (d) refers to the illegal use of drugs. Technically at present one could make an instructional video on how to shoot up heroin or how to make crack cocaine which is entirely exempt from submission to the British Board of Film Classification. I believe that that reference is self-evident.
Secondly, the word "likely" occurs twice in the main paragraph of the amendment, which states,
"or is likely to any significant extent to stimulate or encourage anything falling within paragraph (a)".
The paragraph later continues,
"is likely to any extent to do so".
The original Act contains the word "designed". The difference is considerable. The phrase "is likely to" is concerned with the effect of a video. The phrase "is designed" is concerned with the intention of the maker of the video. I hope that your Lordships, and in particular noble and learned Lords, will agree with me that establishing intent is often extremely difficult and nearly always impossible to prove. I believe that we should be concerned with the effect of the video and not with the intentions of its maker. That is the reason why I have altered the word "design" to "likely".
The third and probably the most significant part of the amendment contains the words,
"or is likely, whatever the video work depicts, to cause harm to children or young persons or, through their behaviour, to society".
It will not be lost on your Lordships that I have used the exact words of the noble Earl's amendment with reference to the issues which the British Board of Film Classification or any other designated body must consider when granting certificates. It seems an entirely sensible form of words and to bear repetition in this amendment.
So on those three points I think that we could easily clear up what I regard as a rather monstrous loophole. Let me emphasise to your Lordships that this is not intended to bring in another great wodge of video material for us to classify. It is only to prevent the cynical exploitation of the Video Recordings Act by cynical and exploitative video makers.
I should also explain Amendment No. 125B to which I am expected to speak. This is a totally different and rather innocent matter. It refers to a section of the Video Recordings Act 1984 about the "U" certificate—the "universally acceptable" films. I have added "or young children" after the words:
"particular suitability of the work for viewing by children".
That is for the simple reason that there is a certificate called "Uc", which at the moment is described as especially suitable for viewing by children. It is intended to be especially suitable for viewing by young children; in fact, toddlers. It is meant to be a help to mothers in sorting through the immense amount of "U" certificates who may not easily distinguish what is good for toddlers. It works the other way round, too, because any parents with a bright 11 year-old who in innocence brings home a work described as especially suitable for

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children could be dismayed to find, as would the 11 year-old, that it was a "sing along with mother" nursery rhyme video.
The whole point of "Uc" is to help mothers with toddlers. Unless we can put the words "young children" on it, our helpfulness is rather set at nought. I hope that your Lordships will agree that it is an entirely sensible amendment. The main drift of the proposal is contained in Amendment No. 125A and I hope that noble Lords and the Government will agree that it is a sensible and helpful provision to stop a really dreadful trade. I beg to move.
Lord Merlyn-Rees: My Lords, I support the clear and succinct explanation of the two amendments put forward by the noble Lord, Lord Birkett. I do so because of the clarity with which he expressed his proposal and because I have received representations from the NSPCC. It explains in one short paragraph that the new clause is intended to ensure that certain videos at present exempted under the Video Recordings Act are made subject to classification.
The NSPCC made available to me and, I am sure, to the noble Lord, Lord Birkett, with his background in the British Board of Film Classification, a description of what goes on. It states that, from a cramped one-bedroom flat on the suburban lip of north Birmingham, Europe is being instructed in the use of C4 explosives; how to kill with a single blow; and how to pick locks with the finesse of a cat burglar. It mentions a deactivated AK47 Russian assault rifle, and so on. I shall go no further on that because the noble Lord is right and I hope that the Government will look at the amendments sympathetically.
I am also chairman of the Video Standards Council, which informs me that it has not been consulted on the matter. It raises one issue, which I hope is not the case. The suggestion is that there is a problem under the two amendments that current affairs videos showing what goes on in Bosnia and Rwanda will have to be classified on the grounds that current affairs could affect young children. I hope that that is not the case and that the Minister will reply positively to the two amendments and that that aspect will be looked at.
For example, I was advised that the Second World War film made by Jeremy Isaacs some years ago—some noble Lords may remember that it was first class— might be affected by the amendments. I hope not, but I strongly support the noble Lord, Lord Birkett.
Lord Birkett: My Lords, before the noble Lord sits down, perhaps he will allow me to reassure him that of course my amendment is in no way intended to catch current affairs programmes such as he mentioned. Indeed, it would be an intolerable burden for us if that weight of material were to fall under this amendment. However, although the word "documentary" is usually used in connection with the entirely proper making of current affairs films, there are occasional exploitation videos which simply use the bloodiest and most unpleasant incidents of modern life—
Earl Ferrers: My Lords, I wonder whether the noble Lord, Lord Birkett, is in error. The noble Lord, Lord Merlyn-Rees, had sat down and the noble Lord, Lord Birkett, seems to be making a second speech when he should only make one.
Lord Birkett: My Lords, I acknowledge my error. Obviously the noble Lord had sat down but I think I have said enough to reassure him.
Lord McIntosh of Haringey: No, my Lords, I am afraid not. What the noble Lord, Lord Birkett, said in response to my noble friend was that the amendment is intended not to cover current affairs. Looking at the wording and referring back to the Video Recordings Act —of which I remember every word with painful clarity, after 11 years!—it seems to me that the amendment would refer to current affairs. It moves away from the intention which we were discussing before the break to the issue of what is likely and the content of the recording.
What worries me about Amendment No. 125A is, first, the moving away from the intention and, secondly, the application on a broad scale to all videos of the new criterion of whether it can cause harm to children or young persons. Surely, it should not be our intention in classifying videos that all videos should be classified on the basis of what could happen to young people. There must be a different standard for adults from young people. With Amendment No. 125B I have no quarrel at all.
Earl Ferrers: My Lords, I sympathise with the aims behind the two amendments of the noble Lord, Lord Birkett. They are, on the one hand, to protect children from unsuitable or harmful material which may be contained in some videos which are currently exempt from classification and, on the other hand, to enable the British Board of Film Classification effectively to draw attention to those videos which are particularly suitable for young children.
It would certainly be wrong if a factual video were exempt from all controls regardless of its contents. One need only think of the various sex education videos which have become popular in recent years. Those kinds or videos are clearly suitable for an adult audience only and they should not be available to children without restrictions.
The noble Lord, Lord Birkett, reminded us of what the 1984 Act says about exemptions and the exclusion of exemptions. The criteria for excluding exemptions are in some ways similar to the criteria which the British Board of Film Classification will, under Clause 84, have to use in making its classification decisions. However, there is an important difference between them. Unlike the classification criteria, the exemption criteria are not simply a guide to the exercise of the British Board of Film Classification's discretion. The exemption criteria are intended to determine on an objective basis, for the purposes of the criminal law, whether a particular video is in fact exempt from controls or whether it ought to have been submitted for classification. If an unclassified video is not exempt, then those who are supplying it or who are possessing it for supply are

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guilty of an offence and, under Clause 83, they will be liable to two years' imprisonment and an unlimited fine if they are convicted in the Crown Court or to a £20,000 fine and six months' imprisonment if they are convicted in a magistrates' court.
It is, therefore, important that those who produce or supply videos should be able to tell clearly whether or not a particular video is exempt and it is important that they should not be liable to criminal penalties simply on the basis that in someone's subjective opinion a video was unsuitable for exemption and ought to have been classified.
The existing exemption criteria relate, therefore, to what are essentially matters of fact. If a video depicts sexual activity or torture or genitalia to a significant extent, there will not be much doubt about the matter. The depiction of illegal drug use probably falls into that category as well. It is rather more difficult, though, when we come to the question of whether a video work is likely to stimulate or encourage the commission of crime, or whether it is likely to cause harm to children and young people. Those are subjects about which there will often be room for debate. That does not matter when these criteria are used in the classification criteria. The purpose of the classification criteria is to lay down questions which the British Board of Film Classification must consider before it reaches its decisions, and about which it is expected to exercise its discretion. But it matters much more in the criminal law context, where the question is not how a particular video should be classified, but whether a person is guilty of supplying an unclassified video work which, as a matter of law, was not exempt.
On the other hand, I am conscious that there are now video works available—educational videos which show people how to make explosives, or pop videos which may portray drug use, for example—which I for one would certainly not want children to see and yet which may be exempt under our present controls.
Bearing in mind the fact that the Video Recordings Act 1984 provides a defence for those who can show that they supplied unclassified videos in good faith, believing on reasonable grounds that they were exempt, on the whole 1 think that it would be right to strengthen the law along the lines which the noble Lord, Lord Birkett, suggests, if that is possible.
There are, however, concerns about the drafting of the noble Lord's amendments, particularly the first, which is rather complex and is also, it seems to me, at least potentially ambiguous. For example, there is concern as to whether the reference to "criminal behaviour" refers just to criminal sexual behaviour or to any criminal behaviour, which it obviously ought to do. I think that it may also be possible to draft amended exemption criteria in a more felicitous way.
If the noble Lord is prepared to withdraw his amendments I will undertake to consider whether there is a more satisfactory way of trying to achieve his objectives. If there is, I will try to bring back some suitable amendment at Third Reading.
9 p.m.
Lord Birkett: My Lords, I am very much obliged to the noble Earl for his consideration of the matter. I recognise that the words that I have used are in two quite different contexts: first, in the context of the noble Earl's original amendment which applies to the British Board of Film Classification; and here, obviously, they would apply to the courts when testing whether an exemption was justified or not. I see that distinction. I understand the difficulties that the noble Earl has put forward, and indeed those that were put forward by the noble Lord, Lord McIntosh. To the noble Lord, Lord McIntosh, I can say that in my draft—however it comes back at Third Reading—the word "harm" is the important one. It would take quite a lot, I imagine, to persuade a court that harm was involved. So the average run of documentaries, which is not intended to be caught by such an amendment, would be all right. But I leave that to the draftsmen whom the noble Earl will invoke. I am much obliged to him, and I shall look forward to the Third Reading debate. I beg leave now to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Birkett Lord Birkett had given notice of his intention to move Amendment No. 125B:
After Clause 82, insert the following new clause:
("Classification of videos: young children
. In subsection (2) (a) of section 7 of the Video Recordings Act 1984, after the words ("particular suitability of the work for viewing by children") insert the words ("or young children").").
The noble Lord said: My Lords, I spoke to Amendment No. 125B. I do not know whether the noble Earl would like to take that amendment away and bring it back at Third Reading, or whether he is inclined to accept it. Either way, I should be entirely happy.
Earl Ferrers: My Lords, I was only about to say that, as I thought that Amendment No. 125B was included with the last amendment, I shall certainly consider it as well.
[Amendment No. 125B not moved.]
Lord Elton Lord Elton moved Amendment No. 126:
After Clause 84, insert the following new clause:
("Video Recordings: Review of classification
. After section 4 of the Video Recordings Act 1984 there shall be inserted the following section:—
"Review of classification
4B.—(1) At any time within a period of six months from a specified date any member of the public may refer to a Member of the House of Commons any video work in respect of which a classification certificate has been issued and give reasons why, in the opinion of that person, either—

(a) no classification certificate should continue in force in respect of that video work; or

(b) a classification should be issued of a description different from that of an existing certificate.

(2) A Member of the House of Commons to whom a video work has been referred under subsection (1) above may at any time within a period of nine months from the specified date request the designated authority to review that video work.
(3) Within twelve months from the specified date them designated authority shall, subject to subsection (4) below, make a determination as to (he suitability of the video work in question (in this section called a 'new determination') as if no previous determination had been made in respect of it.
(4) Where a new determination would not result in the issue of a classification certificate of the same description as

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that of an existing certificate, the latter certificate shall continue in force for a period of three months following the date of the new determination, and shall then cease to have effect.
(5) In this section—
"specified date" means such date as the Secretary of State may by order appoint.
"suitability" has the same meaning as it has for the purposes of section 4A of this Act.
(6) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, in Committee my noble friend did a great service in bringing forward a group of amendments of which the first was Amendment No. 142C. The effect of the group was to raise considerably the penalties for breaches of the legislation controlling video recordings and to raise the criteria against which the board makes its considerations when granting or refusing certificates.
In introducing that group of amendments my noble friend referred to the effect of violent videos on the behaviour of children, who are impressionable, and also to their effect as regards providing models of bad behaviour for adults. He referred to the judgment of Mr. Justice Morland which also suggested that exposure to unsuitable videos might have accounted, at least in part, for the behaviour of the two boys, Thompson and Venables, who murdered James Bulger.
The video which may have prompted that murder is one of the horses that bolted some time ago from the stable. It is ironical that the coming into effect of the resulting legislation will have no effect on that video and others like it. In the course of the debate on that group of amendments I raised the question of retrospective application for certificates with my noble friend, and said that I believed that the public would expect to be protected from the effects of "Child's Play 3" after our work today, since that is what precipitated the amendments in the first place. My noble friend's reference to that suggestion in his closing speech was that his right honourable friend had considerable sympathy with that point of view. He said that he had considered the matter very carefully and took the view that a system involving retrospection simply could not be made to work very well.
I am not sure that noble Lords should be content with that view. This is a grave matter. There is a very large amount of material already in circulation which is certainly not acceptable under the new criteria and which causes a great deal of anxiety to members of the public, and indeed to Members of both Houses.
The Care Trust is an organisation that has given careful thought to this particular issue. It has come forward with a drafting amendment which I have seen and tabled, and which I put before your Lordships now. It is an approach to the problem which I understand is under consideration by the Select Committee on Home Affairs in another place. The indications are that the committee is favourably impressed by it, although we shall not know for certain until its report is published the day after tomorrow.
The difficulty is to discover a mechanism by which it may be possible to select from the enormous number of videos now in proper circulation those which deserve to be reviewed and to ensure that there is not a flood of irrelevant material put before the board. I understand that the board itself is content to face such work if it is in reasonable quantity.
The model that suggested itself is quite a good one. It is the model of the Parliamentary Commissioner for Administration, otherwise known as the ombudsman, to whom the route is through Members of Parliament. It is suggested that the numbers should be limited by that being the only route whereby a proposal for reclassification or declassification can be made, and made only within a limited period of time. Amendment No. 126 sets that out in detail.
The proposal is that there should be a date by which, during a period of 18 months, that process could be completed and that any video whose certificate was removed or changed would, after a further period, be in the classification or be unclassified as the board may have decided; that during that interval the industry could re-label or withdraw a video from the shelves; and that thereafter the penalties described in the Bill should apply to the improper sale of that kind of material, as it would have done had it been given the new classification or refused classification from the beginning.
I commend the amendment to your Lordships. I feel that it would be absurd to go to the lengths of providing for the protection of young people and others from the kind of material that my noble friend described in Committee and to allow to escape scot-free the material which caused us to do that because it was so awful. I beg to move.
Lord McIntosh of Haringey: My Lords, no doubt this is a beautifully drafted amendment but it fills me with horror. The noble Baroness, Lady Gardner of Parkes, and I were members of the film viewing board on the Greater London Council. The noble Lord, Lord Birkett, as the director of the arts and recreation, was the chief officer (I am not sure whether or not it was in his time) responsible for these matters.
Members of the other place presumably would have to watch such videos. Otherwise they could hardly pass on to the British Board of Film Classification the observations of a constituent or anybody else. There is no restriction on who it is because any member of the public can ask any Member of the other place to require a reclassification by the British Board of Film Classification. The mind boggles at the implications of the amendment. It would be totally irresponsible for Members of another place to pass on such a view from any member of the public without having himself viewed the video. In the interests of comity between the two Houses, I suggest that the amendment should be rejected.
Lord Ashbourne: My Lords, I put my name to the amendment and I am grateful to the House for permitting me to say a few words in support of my noble friend. At Second Reading of the Bill I said that I had always had a particular concern about the impact of the

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media, especially on children. I believe that a diet of violent material can encourage children to imitate violence or participate early in criminal activity. Therefore I was delighted to see that the Government have tackled the issue of stricter classification of videos.
However, it perplexes me that the Government seem happy to allow videos such as "Child's Play 3" to continue to circulate unimpeded. I believe that there are many members of the public who expect videos such as "Child's Play 3" to be removed from the shelves of video outlets once this legislation comes into force. They will be shocked and confused if they find that those videos are still there. That is why I totally support the amendment moved by my noble friend Lord Elton.
I am sure that your Lordships will agree that for the Government to take such strong action on videos—I welcome such action—suggests to the public that there are in existence works which are having a serious negative effect on our society and especially on our children. If such works do not exist, why have we acted? If such works are currently on sale in the high street and available for hire from local video shops, why do the Government propose to let them continue to circulate without their classification even being reviewed when they propose to restrict similar new material? It would be neither practical nor profitable to view every single video classified. But it seems paradoxical and somewhat irresponsible not to tackle the worst of the material already commercially available. Clearly we cannot have any impact on those videos already in the home; but we can stop more being purchased or hired and remind parents of the dangers of some of those works.
Perhaps I can remind your Lordships that I proposed this matter over 10 years ago when I made my maiden speech on the Video Recordings Bill (as it was) later to become the Video Recordings Act 1984. I quote myself rarely in your Lordships' House because normally I do not feel that I am worth quoting. But on this occasion I shall make an exception because it is not often that I have had the savvy to be able to look with amazing accuracy more than 10 years ahead. Your Lordships may like to consider that point and see whether the Government have similar vision. I asked, "What are the shortcomings?"—referring to the Video Recordings Bill. I continued,
"First, inadequate controls. The Bill provides a category system to regulate the supply of video material but it fails to provide any teeth after the initial point of supply. Indeed, after sale or hire any material may be viewed by or exhibited to persons of any age with impunity. The claim that the Bill provides effective protection for children from corrupting video material is regrettably not true".—[Official Report, 2/4/84; col. 525.]
A time limited, selective, retrospective scheme seems to be the most efficient way of reviewing the videos that have caused such public anxiety. I urge your Lordships to support Amendment No. 126.
9.15 p.m.
Lord Birkett: My Lords, I regard with the greatest suspicion any amendment designed to make retrospec-tion in the matter effective. Before I start on the main amendment it is worth saying something in relation to "Child's Play 3". That is a video frequently referred to. I take it from the fact that it was referred to by the noble
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Lords, Lord Elton and Lord Ashbourne, that they have both seen it. If not, then their references are probably a little irresponsible.
I have seen the video; I have taken the greatest care to see it. Let me say at once that the connection the film is supposed to have with the James Bulger case is absolutely not shown to be true. That is a connection provided by the press and not by the police who took some evidence on the matter. In the Committee stage of the Bill the noble Earl, Lord Ferrers, referred to the police reports on three different cases and three different films that were involved. There is no evidence that there was any connection.
I can well understand the anxiety in relation to the film. Although I hold no brief for it, it is quite a scary film. But it is in no way an example to anybody. It is a film about a mechanical doll which is inhabited by the malevolent spirit of some creature from the past, and it creates mayhem. It is a working model, a little doll. I shall not bore your Lordships with the plot in detail. The action takes place in an American military academy. The malevolent little doll changes blank ammunition to live ammunition with the results that your Lordships can predict. I doubt that it can be used as an example of a really evil film which should be removed from the shelves. Its reputation was entirely misplaced through the press.
However, one film is obviously not the point of the amendment. Nevertheless, with around 30,000 videos not merely on the shelves and available for hire but in many cases bought and in the libraries of people at home, any attempt at a retrospective re-examination of certificates, even if it is channelled by Members of another place, seems to me to be unworkable and I cannot welcome it.
Lord Merlyn-Rees: My Lords, the case against the new clause was made clearly by the noble Lord, Lord Birkett. That also would be the view of the Video Standards Council, not only in relation to the overall aspect of retrospection, but also the point that has just been made that should any cassette be reclassified, those existing copies in private homes would be retrospective-ly illegal. The whole concept is misconceived and I hope that the Government will not accept it.
One point about which I feel I have a right to say something as it is not so long since I was there, is the idea that Members of Parliament should play a part in the matter; that the House of Commons should play a part. Of all the things that I have missed in the past two years, apart from the joy of being here, my work as a Member of Parliament ranks highly. My loyalty was of course to the political party which I first joined in 1937. But my loyalty was to my constituency, not just to the constituency party once a month, but to the doctors, teachers and people I met in the clubs and churches. The job of a Member of Parliament is a real one. The independence of Members of Parliament arises out of that.
I was once asked to advise the Israeli Government. They always wanted to change their one-constituency proportional representation system whereby you were elected by all the electors in the area and there is no

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constituency representation. They would dearly love to get out of that situation. I understand it. A Member of Parliament does not have a loyalty to his constituency, but the right, in the best relationship, to use his own judgment.
How does a Member of Parliament use his judgment about a video that comes along? He has to look at it. He says, "No", I am not prepared to do this. There are many different views down the other end of the corridor".
I learnt one thing in Northern Ireland. I found that, with seven Assembly members for each constituency under proportional representation, on an issue they all wrote to the Secretary of State. When that ended I found, through the system in Northern Ireland, that Catholics would not write to a Protestant Member of Parliament. Very foolishly, I said that if the person had written from outside the constituency, they had to write to the Member who legally represented them. I soon found that was not tenable. On both sides they all agreed that Catholic Members would take from Catholics from whatever part of the Province and Protestant Members would take from Protestants from any part of the Province. There is not the same constituency representation as there is here. I only offer that example to show that it is not a straightforward situation.
This new clause is flawed basically because the noble Lord does not understand the nature of a Member of Parliament. To ask a Member of Parliament to carry out this task is misconceived and for that reason alone I hope that the Government will reject it.
Earl Ferrers: My Lords, I was grateful to my noble friend Lord Elton for explaining his amendment and how it would apply the new classification criteria retrospectively to selected videos. I know that many people will share my noble friend's anxieties. Indeed, my right honourable friend the Home Secretary has already written to my noble friend expressing his own instinctive sympathy with the idea that we should now enable the British Board of Film Classification to look again at some of the works which have already been classified in order to try to apply the new classification criteria to them.
However, as my right honourable friend also explained, he has concluded that a system of retrospection—even of partial retrospection—could not be made to work in practice, and that it would tend to undermine the classification system. My noble friend's amendment prescribes a mechanism by which works might be selected for review. Members of the public would have a period of six months, from a date to be specified by order, during which they could refer works to Members of another place. That has received scant shrift from the noble Lord, Lord Merlyn-Rees. According to my noble friend Lord Elton, they would then have a further three months in which to decide whether themselves to refer the video works in question back to the British Board of Film Classification for reconsideration.
The British Board of Film Classification would have to reconsider all the works which were referred back to it within 12 months of the original specified date. If a
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work were reclassified, or if it were refused classification, the old classification would stand for a transitional period of three months.
This procedure would deal with some of the problems which are posed by a system of retrospection. It would mean that the British Board of Film Classification did not have to review each of the 25,000 or so works which it has already classified. The noble Lord, Lord Birkett, said that there were 30,000. Whether the figure is 25,000 or 30,000, there are several of them. It would allow retrospection only for a limited period, and it would place some limit on the numbers of works to be re-examined by using Members of Parliament as a sort of filtering mechanism. Of course, we have no idea how many works would be referred back, so there could still be a very considerable burden on the British Board of Film Classification.
I have some doubts also about the proposal to involve Members of Parliament directly in the censorship process in that way. The noble Lord, Lord Merlyn-Rees, considered that they would be wholly inappropriate and I can understand the reasons why. My noble friend will be a brave fellow if he follows that hare down that route.
However, while the amendment provides a mechan-ism for dealing with some of the practical aspects of re-examining classified works, it seems to me that it does not address the fundamental difficulties, which are the uncertainty which retrospection would introduce into the classification system and the impossibility, in practice, of removing from circulation copies of a work which has been reclassified or which has been technically withdrawn.
Once a video work has been classified and once copies are in circulation there is, in practice, no way of recalling them. The most which could be done would be to withdraw copies from the shelves of the larger and more responsible shops and to prevent unauthorised new copies from reaching the market. Copies which are already in people's homes would stay there, while copies which were circulating in private hands or through small corner shops, car boot sales and so forth would continue to circulate.
In the vast majority of cases it would not be possible successfully to prosecute those who are supplying copies of a withdrawn, reclassified or re-cut work, because they would rightly say that they were supplying a work which had every appearance of being a legally classified work and which had indeed been legally classified; and that they had therefore supplied it in good faith, having no reason to suppose that the classification had been withdrawn. This would be a complete defence to any prosecution. Selective retrospection would in fact mean that no one could be sure from day to day whether a given work still retained its legal classification, or whether it had been the subject of a complaint and was being reconsidered.
The period of three months during which the old classification would still be valid under the amendment might at best defer the problem for three months, but it could also add to the confusion as it would mean that the same work could simultaneously be supplied under two different legal classifications. Once it was decided that a work should be reclassified, the amendment allows for

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it to continue to be sold for three months. This would mean that the same work could legally be sold under two different categories: the old one, which would be considered wrong, and the new one. This would reduce the entire classification system to chaos, making past BBFC classifications unreliable as a guide to the actual legal status of the videos concerned.
As a total aside, I well remember some 25 years ago the terrible hoo-ha about Lady Chatterley's Lover. It was supposed to be a most improper book and I wondered what on earth it contained, so I looked around and found a copy. I am bound to say that I read it from cover to cover and could not see what was wrong with it. I thought that that was a testimony to my broad-mindedness. It was only when I had read it that I looked at the front cover and saw that it was the expurgated version. I was enthused to find the unexpurgated version and to discover what it was that had been left out. That shows that there are complications when there are two versions of the same thing—
Lord McIntosh of Haringey: My Lords, the Minister must finish the story, please.
Earl Ferrers; My Lords, I shall finish it. I never got the unexpurgated version and so, in my naivety, I am still at a loss to know what all the fuss was about.
The only point of that little story was to show that there are complications when two versions of the same thing are in circulation at one time. Much of the impetus behind the calls for a retrospective application of the new classification criteria is prompted by the concerns about the video to which the noble Lord, Lord Birkett, and my noble friend Lord Elton referred. The noble Lord asked penetratingly who had seen Child's Play 3 —he did not receive an answer. I have not seen it, so the noble Lord, Lord Birkett, has the advantage of me on that. That video has been cited in the press as having contributed to the horrific murder of James Bulger. As I explained when we last debated this part of the Bill, the police found no evidence that that video was in any way responsible for that terrible crime, or that either of the two murderers had ever seen it. Many of the reports of alleged similarities between the murder and the video bore little or no relation to its actual contents. There is no guarantee that if it were re-examined it would be banned. It is already in the 18 category which is the highest ordinary classification awarded to videos.
It is notorious that hard cases make bad law. We should not be justified in undermining the classification system and incurring all the other difficulties that I have tried to describe just to try to ban one video, especially when there can be no guarantee that the video concerned would be banned and, if it were banned, that we could guarantee that it would be removed from circulation.
My noble friend might say that he was not putting forward the amendment because of one terrible video. I am sure that that is the reason, but for all the reasons that I have given I believe that it would not be appropriate to include the amendment in the Bill, although I have great sympathy with my noble friend's anxieties which stimulated him to put down the amendment. I believe that it would be impossible to go down the retrospection route.
9.30 p.m.
Lord Elton: My Lords, I am much obliged to my noble friend and to those noble Lords who have taken part in this short debate. I hasten to say that the amendment is not an attack upon a particular video work. I readily confess that I have not seen 'Child's Play 3". I have seen many worse things shown to me by the Metropolitan Police, but I have not seen that one. It is the whole category of violent and unsuitable material upon which I believe that it is the function of the board and not your Lordships' House to make a decision.
I see that my position is inconsistent, because in the amendment I am inviting Members of another place to perform that function. The noble Lord, Lord Merlyn-Rees, rightly took me to task for allocating a disagreeable and burdensome duty to Members which, he said, could be foisted on them by people from another constituency. He pointed out that there were circumstances in which that was a good thing, and the noble Lord, Lord McIntosh, equally pointed out that it could be from another constituency, and that that could be a bad thing.
The one thing that the amendment has done is to boggle the mind of the noble Lord, Lord McIntosh, more successfully than any amendment that I have yet moved. We boggled him onto the Treasury Bench here, then onto the Cross Benches, briefly out of the Chamber, and then back to his place. I regard that as a significant achievement. More seriously, I turn to what my noble friend said. He said that the amendment was unacceptable because it was uncertain in its effects; it was incomplete; it was ineffective; and it would lead to a period of confusion.
Those are serious charges. In no way do I hold this up as a model amendment, beautifully, as the noble Lord, Lord McIntosh, said, though it may have been drafted. I hold it up merely to encourage my noble friend and his right honourable friend not to let go entirely of the idea of some retrospective control, however limited, until the report of the Select Committee of another place is available in two days' time. By withdrawing the amendment now, I shall maintain the opportunity for the Government, or others, to put down on Third Reading an amendment which is in tune with whatever that committee may recommend. I am grateful to your Lordships, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gisborough Lord Gisborough moved Amendment No. 126A:
After Clause 84, insert the following new clause:
("Offence of supplying sexually explicit still images on computer disc

. —(1) Any person who supplies to a child under the age of 16 data stored on a computer disc, or by other electronic means, which contains a sexually explicit image which is not a moving image shall be guilty of an offence.

(2) Any person who supplies; in the course of a trade or business a computer disc, or data stored by other electronic means, which—

(a) contains a sexually explicit image which is not a moving image, and

(b) is not indelibly and legibly marked with the words "contains sexually explicit material", and

(c) does not incorporate an effective form of copy protection,

shall be guilty of an offence.

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(3) An image is sexually explicit for the purposes of this section if it depicts—

(a) human sexual activity or acts of force or restraint associated with such activity;

(b) human genital organs or human urinary or excretory functions;

or is designed to any significant extent to stimulate or encourage anything falling within paragraph (a) above.

(4) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,

(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both.").

The noble Lord said: My Lords, there is no doubt that new technologies which have the power to enrich our lives have also a darker side. The incredible access they give us to art, music, information and communication has also the potential to bring pornography into our very homes. New technology increases the number of ways in which pornography can be produced. Digitised images can be created by linking a video camera to a computer or even by merely playing a video tape. Modems enable images to be sent through telephone lines, even across national boundaries, and bulletin boards and electronic libraries can provide a vast source of pornographic images. Existing sex magazines can easily be scanned, creating digitised copies. Indeed, one magazine has already released a compilation on CD ROM, a medium similar to the normal compact disc.
While those increases in the source of pornography are of immense anxiety, there is another equally worrying feature of the technologies. I refer to the potential for a tremendous increase in the distribution of material, with our children particularly vulnerable because of their close association with computers. Perhaps grudgingly, we accept that youngsters obtain access to adult magazines—the so-called "top shelf pornography. However, several factors limit the extent of that. Retailers are usually most responsible and rarely do they knowlingly supply such magazines to youngsters. The nature of such magazines is obvious to see and few youngsters would risk taking one to school. Parents are likely to discover a magazine kept at home, thereby enabling them to exercise some degree of control.
However, computer discs have few such constraints; they are small, cheap and innocuous and parents are unlikely to know how to unlock their secrets. In addition, they can be easily copied and distributed to friends who can then continue the process. Collecting pornographic pictures on disc could easily become a modern-day equivalent of cigarette card collections as images are swapped among school friends.
Top-shelf porn is unlikely to be obscene in a legal sense and the proposed amendment to the Video Recordings Act, while most welcome in enhancing the protection of children, will not apply to still pictures. There is currently no control over the supplying of digitalised top-shelf magazine pictures to youngsters. My amendment seeks to create a sanction for any adult who supplies a sexually-explicit image to a youngster primarily because of the distribution cascade which
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could be created. That should restrict the access of youngsters, in particular in the short term, while modems and scanners are outside their likely budgets.
There is precedence for specific protection in relation to another medium of particular interest to children; that is, comics. Statute prohibits the sale of comics containing scenes of an objectionable nature if they are likely to be read by children. In addition, specific protection is given to children in relation to the sale of videos. As a result, amendments are proposed to the Video Recordings Act in relation to computer games; that is, to a series of digitalised images. I believe that the same protection is necessary in relation to computer discs and my amendment seeks to achieve that.
The amendment also seeks to support parental control by making the contents of discs much more apparent. There is no doubt that parental awareness of such issues is crucially important in tackling the problem. The amendment should result in a raised awareness of the problem and a greater ability to supervise youngsters whose parents lack the technical knowledge to access discs directly. The schoolyard scenario is not merely likely but inevitable. While I believe that the threat is so overwhelming and that we cannot prevent it materialising, we can, and indeed we must, create an environment where access is reduced and parental control can exercise some restraint on distribution. I beg to move.
Lord Elton: My Lords, I support my noble friend most strongly. Perhaps I may remind your Lordships that we are seeing only the beginning of a considerable revolution in the transmission of information. It will move very fast and the next Bill into which such a measure can be inserted is a long way away. It would be a great pity if we did not take such steps as we can at this early stage.
I speak with hesitation because I realise that the children most at risk from this material are likely to be far more computer literate than I shall ever be. I hope that this House will control material so as to protect them. That is something as regards which we can have an ambition but no certainty. My noble friend Lord Gisborough has seen and is trying to stem a great danger. I hope that my noble friend Lord Ferrers and the Government will try to find a proper way—perhaps this way or perhaps another—of stemming it.
Earl Ferrers: My Lords, I am grateful to my noble friend Lord Gisborough for explaining his anxiety about the possible exposure of children to unsuitable material on computer discs. I am sure that we share that anxiety. Many of your Lordships will have seen the recent surveys estimating that an alarming proportion of schools have problems with the circulation of computer pornography, and that alarming numbers of pupils have seen such material.
However, I am not convinced that my noble friend has set about this problem in the right way. In the first place, it is not the case that the law does not apply to computer discs; it does. Discs which contain moving images constitute video recordings and they are therefore subject to the controls in the Video Recordings Act 1984, which this Bill considerably strengthens. One

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of the changes made by the Bill will be to extend the definition of a video work to cover moving images which are stored electronically on devices other than discs or tapes, thereby ensuring that the law keeps pace with improving technology. Discs which contain still images are subject to the same controls as books, magazines and other publications—principally the Obscene Publications Act 1959—and are subject also to the Protection of Children Act 1978, which makes it an offence to publish or distribute child pornography.
The Bill also strengthens our controls on obscenity, and particularly on computer pornography by making clear that transmissions between computers are covered by the Obscene Publications Act; by extending the law to cover child pornography, which is manufactured by computer; by making it an imprisonable offence merely to possess child pornography; by increasing the penalties for obscenity offences in Scotland; and by making obscenity and child pornography offences in England and Wales serious arrestable offences.
As your Lordships will recall, Section 2 of the Obscene Publications Act makes it an offence to publish, or possess for publication for gain, any article which, taken as a whole, has a tendency to deprave and corrupt those likely to read, see or hear the matter contained or embodied in it. Because the potential audience is an important part of the offence, a sexually explicit image which might be harmful to children under the age of 16 and what is likely to be seen by them, may be caught by the Act even though the same article would be unlikely to deprave and corrupt adults.
In addition to the criminal offence, Section 3 of the Obscene Publications Act provides a forfeiture procedure under which articles which are believed to be obscene and which are kept for publication for gain may be seized by the police under a magistrates' warrant and brought before the magistrates for forfeiture. Figures on forfeiture are not kept centrally, but from inquiries which have been made of the Metropolitan Police and the Greater Manchester Police, I understand that in 1993 those two forces alone seized 2,619 computer discs.
It is quite clear, then, that computer discs are not outside the law, but there may of course be practical problems in catching those who break the law. That is especially so in cases when those who are circulating the material are schoolboys who are, as my noble friend said, swapping computer discs in the same way as some of your Lordships may have swapped conkers or cigarette cards.
However, I cannot see that my noble friend's amendment gets round that practical problem of enforcement. What it does is to prohibit the supply to children under 16 of sexually explicit still images either on computer disc or supplied by some other electronic means. It also prohibits the commercial supply of such material to adults, unless various requirements are complied with. Of course, what is sexually explicit is not necessarily obscene; what is sexually explicit is, at the same time, narrower than what is obscene, as something can be sexually explicit without being obscene; indeed, it sometimes can be obscene without being sexually explicit.
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My noble friend Lord Gisborough has taken the components of his definition of what is sexually explicit from the Video Recordings Act 1984 but, of course, that Act does not ban sexually explicit material. It merely requires it to be classified. The Video Recordings Act 1984 therefore applies to any depiction of human sexual activity or human genitalia. I do not think mat it is necessarily always wrong to provide those under the age of 16 with material which falls into that category. For example, that may be necessary in sex education lessons. Many schools now use computers as teaching aids in various subjects. I believe that it would be odd to provide that it was an offence for them to use illustrations on a computer disk which would have been perfectly legal in a textbook.
We need to consider the difference which is made by the fact that the Video Recordings Act 1984 is concerned with moving images, while my noble friend's amendment is concerned with still images. Moving images of human sexual activity or genitalia will obviously in most cases be film footage of real people. Why people should volunteer to be filmed in that way puts the imagination into overdrive—but they do, and it is clearly right that we should require the results to be classified and if necessary censored.
Still images of sexual activity or genitalia may be photographic images of real people, but they may not. My noble friend's definition is by no means limited to that. As far as I can see, his definition would catch all those paintings of "Leda and the Swan" or "The Rape of Lucrecia", which show sexual activity, and all the other works of art, from Michelangelo's statue of David and his paintings in the Sistine Chapel onwards, which happen to show human genitalia —provided, of course, that the image was on a computer disc or stored by other electronic means. I cannot see why computer discs should be especially singled out for censorship in that way.
I am also concerned by the fact that my noble friend's amendment provides no defence for those who supply computer discs innocently, not knowing the nature of their contents. Also, it is not apparent from looking at a computer disc what it contains. It would seem to be quite possible for someone in all ignorance to pass the wrong disc to a child —perhaps a disc which has been tampered with by someone else. In those cases it would be unjust to convict that person of an offence.
Finally, I notice that it would be an offence under the amendment to supply computer discs which contain still sexually explicit images to adults on a commercial basis, unless the discs were: indelibly marked with a warning and incorporated an effective form of copy protection. I am not an expert on the subject. However, I am not sure that there is really any effective form of copy protection. If there were, I am sure that manufacturers would be only too glad to use it, rather than asking for further protection under copyright legislation. Therefore, the amendment might result in an absolute ban on the provision of sexually explicit computer material which, as I explained, might go a long way further than I imagine my noble friend intended.

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I am afraid that I have given a rather lengthy answer to my noble friend's problem. I understand what he is seeking to achieve, but I hope that he will realise why I find it difficult to support his amendment.
9.45 p.m.
Lord Gisborough: My Lords, I am most grateful to my noble friend the Minister for that long explanation which will be most interesting to read in Hansard. I shall, perhaps, return to the matter on Third Reading if I can find a way to get around the traps to which he referred. My noble friend mentioned child pornography. However, it is pornography being supplied to children rather than actual child pornography. I do not think that my noble friend properly covered the question of the marking of discs; in other words, that discs containing pornography should be marked so that at least their contents are known.
Similarly, I do not believe that my noble friend appreciated the fact that such pornography can be passed over by telephone in a fraction of a second from the most unpleasant sources around the world. At any rate, I am most grateful for my noble friend's explanation. I shall take the matter away and reconsider it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 87 [Amendment of Sexual Offences Act 1956]:
Lord Ponsonby Lord Ponsonby moved Amendment No.l26B:
Leave out Clause 87.
The noble Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 137A, 186A to 186D, 197A, 206A and 209B. The amendments are counterparts of those that I tabled in Committee. They have exactly the same intention as the former amendments, but I have had the benefit of some consultation with the Minister's office. As a result, the amendments have been much improved. Perhaps I might take this opportunity to thank the noble Earl for his help. I say that without any prejudice to the comments he may wish to make with regard to these amendments.
The amendments make any case of non-consensual buggery, whether of a woman or of a man, rape. That is the definition which the amendments encompass. I believe this to be an extremely important reform of the law. Before explaining why, I would like to make one thing clear. These are not amendments principally concerned with homosexual sex, nor do they relate directly to the debates we have had about the age of consent. I say that because I believe it is important to be clear that rape is a crime of violence and has nothing to do with what the law on consensual sex should be. It can be committed by a man against a woman or against another man; and the publicly acknowledged sexuality of the perpetrator has no bearing at all on the crime, or on the seriousness with which it should be treated. I believe it is a matter of fact that a substantial number of those who commit rape against another man are in fact heterosexuals.
The original definition of rape was embodied in Section 1 of the Sexual Offences Act 1956 and covered only vaginal intercourse with a woman. This was then amended by the Sexual Offences (Amendment) Act 1976 which most notably gave better protection to the victim because, of course, part of the horror of rape is that victims suffer greatly after the event and the trial itself can exacerbate their suffering.
The amendment relating to marital rape, tabled by the noble Lord, Lord Lester of Herne Hill, at the Committee stage of this Bill, which was accepted by your Lordships, re-enacted the definition of rape in Section 1 of the Sexual Offences Act 1956 in the light of the 1976 Act, but also so as to include rape within marriage. The proposal is to substitute a proposed new Section 1 of the 1956 Act which is why the amendment involves leaving out Clause 87, which was the noble Lord's amendment. My amendment includes all the salient matters in his amendment; therefore, I am not asking your Lordships to go against your earlier decision in Committee. I understand that the noble Lord, Lord Lester, is supportive of my amendments.
The guts of my proposal are simply expressed in my Amendment No. 137A. The proposed new section states:
"It is an offence for a man to rape a woman or another man. A man commits rape if (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it."
The tests in paragraph (b) have been applied by the courts for some years and are well understood, although there have of course been some notorious cases. I suggest that they may be inevitable with crimes of this nature. I seek to extend those tests to other acts of non-consensual intercourse. The maximum penalty for all definitions of rape, whatever the gender of the victim, will therefore be life imprisonment. All the other amendments are consequential on Amendment No. 137A. I beg to move.
Baroness Mallalieu: My Lords, I support these amendments not only for the reasons given by the noble Lord, Lord Ponsonby, but in addition to support Amendment No. 137A which covers an aspect of the law in this area which was the subject of an amendment I tabled in Committee. At that time I sought to extend to the male complainant in a trial involving sexual complaint the same protection which the law currently affords to a woman complainant.
Under the current law in a rape case the complainant may not be cross-examined about her previous sexual history without leave of the judge. That leave in practice is given but when it is clear that the questions to be asked are relevant and necessary to the defence. In effect, that restriction bars questioning of that type which is intended either simply to discredit the witness or to render the witness more readily willing to agree to questioning. Under the present law that restriction only applies to a woman in limited cases of sexual offence involving rape.
The amendment which the noble Lord, Lord Ponsonby, is advancing tonight alters the definition of

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rape and would therefore extend that protection to male complainants in these circumstances. By extending that definition it consequentially extends that protection now afforded only to women and therefore renders unnecessary the tabling of my earlier amendment tonight. I hope, for that reason and the others that have been advanced, that the Minister will accept the amendments.
Earl Ferrers: My Lords, I undertook, in Committee, to reflect upon the case which the noble Lord, Lord Ponsonby, put then for a re-definition of the offence of rape. I sensed that there was a good deal of support for his amendments. In particular, it is strange that the penalty for non-consensual buggery of a man should be less than that for the rape of a woman. But the benefits of the noble Lord's proposal would extend beyond that; in particular, by giving both male and female victims of non-consensual buggery protection from cross-examination about their sexual history.
I pointed out in Committee that the Government's advice from learned committees which had examined the question in the past had been that the current definition of rape matched a public understanding of what the offence entailed. That is clearly a matter of opinion. The public's understanding may well have changed. Certainly, there has been substantial press coverage of an offence which appears now to be universally called "male rape"—that is, the non-consensual buggery of one man by another man. Other countries have different definitions of rape. It would probably always have surprised many people that non-consensual buggery of a woman was not "rape" in law.
From time to time the Court of Appeal has had to consider the offence of non-consensual buggery in relation both to male and to female victims. It is quite clear that the court has regarded non-consensual buggery of a woman as being at least as serious as rape. It is also clear that, on occasion, the maximum penalty of 10 years for non-consensual buggery of a man has inhibited the court.
I also said in Committee that the Government would not have chosen this Bill as a vehicle for sexual offences law reform. That remains the case as a statement of our preference, but I have some sympathy also with the view that the opportunities to improve the law in this area are few and far between. We should not let the best be the enemy of the good, and we might wait a considerable time to receive a Bill which is devoted entirely to this area of the law. In short, the Government would like to improve the lot of both the male and the female victims of these terrible crimes. On reflection, we see the force of the argument that it is worth doing what can be done quickly.
We have contemplated whether we ought simply to increase the penalty for non-consensual buggery of a male. However, that would confer a maximum penalty of life imprisonment on an offence which only requires, as a matter of fact, an absence of consent. Rape, quite properly, requires that the defendant knew that the victim did not consent but nevertheless went ahead anyway, or was reckless as to whether the victim
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consented. In any event, we are confident that the noble Lord, Lord Ponsonby, is not pre-empting public opinion in suggesting that rape should be re-defined in this way. It may be that, in fact, he is just giving us the opportunity to catch up with it.
The current law does a disservice to the victims of these very serious crimes. The noble Lord, Lord Ponsonby, has offered us a way of putting that right without diverting this Bill from its principal concerns. I am grateful to him and to the noble Baroness, Lady Mallalieu, for the trouble that they have taken. I am content to accept the amendments.
Lord Ponsonby of Shulbrede: My Lords, I can only say how grateful I am to the noble Earl for his words. He seems to have considered all aspects of my argument. I am very pleased that he has accepted my amendments.
I have one question for the noble Earl. Perhaps he will let me know his intentions for Scotland and Northern Ireland. The noble Earl has said that he is willing to accept my amendment. I commend the amendment to the House.
On Question, amendment agreed to.
10 p.m.
Clause 91 [Contracted out parts of prisons, etc.]:
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 127:
Page 78, line 5, leave out from ("the") to ("by") in line 6 and insert ("provision or running (or the provision and running) by him, or (if the contract so provides) for the running").
The noble and learned Lord said: My Lords, Amendment No. 127 makes explicit the power of the Secretary of State to enter into contracts not only for the running of a prison, but also for the provision of a prison, or for both the provision and its running. This will ensure that plans can be made for the design, construction, management and finance of new prisons.
Amendment No. 129, similar to that introduced in respect of secure training centres, is designed to ensure that after land is leased to a contractor for construction and management of a new prison, possession of the land may be regained where appropriate. This will enable the land, and any buildings on it, to be recovered at the expiry of the contract. That amendment also sets aside provisions concerning restrictions on forfeiture and covenants against assignment, and covers any agricultural land which may be used for prison purposes.
Amendments Nos. 128, 130 and 131 are consequen-tial to Amendments Nos. 127 and 129.
Amendments Nos. 131A to 131G make similar provisions in respect of Scotland.
Amendments Nos. 131B, 131D and 131E are consequential to Amendment No. 131A. Amendments Nos. 131F and 131G are consequential to Amendment No. 131E. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 128 to 130:
Page 78, line 7, leave out from second ("prison") to ("shall") in line 9 and insert:
("(1A) While a contract under this section for the running of a prison or part of a prison is in force—
(a) the prison or part").
Page 78, line 16, at end insert:

("(1B) Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a) Part II of the Landlord and Tenant Act 1954 (security of tenure);

(b) section 146 of the Law of Property Act 1925 (restrictions on and relief against forfeiture);

(c) section 19(1), (2) and (3) of the Landlord and Tenant Act 1927 and the Landlord and Tenant Act 1988 (covenants not to assign etc.); and

(d) the Agricultural Holdings Act 1986.

In this subsection 'lease or tenancy' includes an underlease or sub-tenancy.").

Page 78, line 19, leave out ("as respects which such a contract") and insert ("for the running of which a contract under this section").
On Question, amendments agreed to.
Clause 96 [Minor and consequential amendments]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 131:
Page 81, line 7, leave out from beginning to ("there") in line 8 and insert:
("(b) in the definitions of "contracted out prison" and contractor", for the words "section 84(2)" there shall be substituted the words "section 84( )";
(bb) after those definitions").
On Question, amendment agreed to.
Clause 101 [Contracting out of prisons]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 131A to 131D:
Page 84, line 26, leave out from first ("the") to second ("by") and insert ("provision or running (or the provision and running) by him, or (if the contract so provides) for the running").
Page 84, line 27, leave out from ("Scotland,") to ("shall") in line 30 and insert:
("(1A) While a contract under this section for the running of a prison or part of a prison is in force—
(a) the prison or part").
Page 84, line 38, at end insert:

("(1B) Where the Secretary of State grants a lease for the purpose of any contract under this section, none of the following enactments shall apply to it—

(a) sections 4 to 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (irritancy clauses); and

(b) the Agricultural Holdings (Scotland) Act 1991.

In this subsection "lease" includes a sub-lease.").

Page 84, line 40, leave out ("as respects which such a contract") and insert ("for the running of which a contract under this section").
On Question, amendments agreed to.
Clause 108 [Provision of new prisons]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 131E to 131G:
Page 88, line 44, leave out subsection (1).
Page 89, line 8, leave out ("Subsections (1) and (2)") and insert ("Section 101(1) and subsection (2)").
Page 89, line 21, leave out from second ("in") to end of line 24 and insert:
("(a) any prison provided under a contract entered into under section 101(1) above;
(b) any prison declared to be such under subsection (2) above and not vested in the Secretary of State; or
(c) any heritable or moveable property belonging to any prison mentioned in paragraph (a) or (b) above, to be vested in the Secretary of State.").
On Question, amendments agreed to.
Clause 121 [Service in England and Wales and Northern Ireland]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 132:
Page 95, line 28, at end insert:
("(3A) For the purposes of this section, subsections (2) and (3) of section 146 of the Employment Protection (Consolidation) Act 1978 shall not be taken to include reference to any member of the prison service as defined in subsection (3) of this section").
The noble Baroness said: My Lords, this group of amendments is concerned with terms and conditions of employment for prison officers. Amendment No. 132 ensures that rights conferred by the Employment Protection (Consolidation) Act apply to prison officers.
Currently under Section 146 of that Act, those who are in the police service, or who hold powers and privileges of a constable, are excluded from Parts II, III and V and Sections 8, 9, 53 and 86 of that Act. Those sections among other things confer the right to return after maternity leave and the arrangements for maternity leave. They also include provisions for the failure of an employer to allow a woman to return to work after maternity leave to be treated as dismissal.
I understand that the Prison Officers' Association has had cases where the prison department has brought forward maternity leave to 11 weeks before the expected week of childbirth without informing the employee until the sixth week. Where a person is only eligible for 14 weeks' maternity leave, such a practice could leave that person with only three weeks' maternity leave after the child is born or even less if the birth were late. The authority for that action comes from paragraph 179 of the staff handbook of the Home Office which states,
"If you are still absent on sick leave at the start of the 1lth week before your expected date of confinement, your maternity leave will be brought forward".
This would appear to be contrary to the provisions of the Employment Protection (Consolidation) Act. But, of course, if prison officers are regarded as constables, the rights conferred by that Act do not apply to them. That, therefore, seems to be rather inequitable. Moreover, there is a whole range of employment rights contained in Parts II, III, V and VII which are ruled out for people in the police service. That is defined as:

"(a) as a member of any constabulary maintained by virtue of any enactment, or

(b) in any capacity by virtue of which a person has the powers or privileges of a constable".

This issue was recently brought sharply to the attention of everyone, including the Prison Officers' Association, as a result of the court action and resultant decision which relied heavily on prison officers being regarded as having the powers and privileges of constables.
It seems to me that this affected not only their right to belong to a union and to take industrial action but also the rights of other employees enshrined in the legislation to which I have just referred. I am not at all sure that this was ever the intention. The simple amendment that I propose would put that right and I invite the Minister to accept it.
I would say that we are plainly most concerned about the whole issue of maternity rights, but there are other employment rights involved as well. I would very much like to hear from the Minister that he is either prepared to accept the amendment or he can in some way or

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another assure me that there is no need for the amendment because those rights are covered anyway elsewhere. I beg to move.
Lord Rodger of Earlsferry: My Lords, the noble Baroness mentioned the recent court case where the status of prison officers was in issue. That case highlighted their role as constables. The effect of the case on their role as constables is that it was held that they were not given the protection of the employment legislation. That was within a particular context.
However, the whole purpose of Clause 121(1) is that the relevant employment legislation as defined in subsection (2) shall have effect as if an individual who was a member of the prison service and acted in a capacity as a constable were not to be regarded as being in the police service for the purposes of any provisions of that legislation. That is because the exemption from that legislation is an exemption of those who are in the police service. In other words, if you are in the police service you are not covered.
Clause 121(1) states that the legislation is to have effect as if the person is to be regarded as not being in the police service. In other words, that person is to be taken out of the exempt category. It follows that in that situation the person will have the protection of the relevant employment legislation. It is because that person is therefore put back into the general category of people who are regarded as being within the employment legislation that Clause 122 goes on to provide—and this is an area where I fully appreciate that the noble Baroness may disagree with the policy behind it but nonetheless it does provide—for matters relating to inducing such officers to withhold services and commit an act in breach of discipline.
The whole purpose of Clause 121, particularly subsection (1), is to give prison officers in England and Wales rights under the employment legislation. I say "England and Wales" because, as the noble Baroness will be aware, in Scotland since such people do not have the rights and privileges of constables, they are not taken out of the employment legislation. So Clause 121 does not give rights to officers in Scotland but it does to those in England and Wales. I therefore feel, with the greatest possible respect, that the amendment is unnecessary and that what the noble Baroness seeks to achieve is in effect achieved by the provisions of Clause 121(1).
Baroness Turner of Camden: My Lords, I thank the Minister for that explanation. It will go on to the record and will, I am sure, have the effect of setting at rest a number of the fears that have been expressed to me by the Prison Officers' Association. Certainly the assurance that the general purpose of Clause 121 is to ensure that people in the prison service receive the full coverage of the employment rights in the appropriate legislation is very welcome indeed. It was not my intention this evening to do other than to seek the views of the Government in relation to both the court action that had been taken and the position of prison officers in relation to the sections of the Employment Protection
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(Consolidation) Act 1978. However, having received those assurances, for which I thank the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 133:
Leave out Clause 122.
The noble Baroness said: My Lords, we now come to a matter that is rather more substantial. Noble Lords will be aware that in Committee we sought to make concessions to the view of the Government, who are opposed to possible collective industrial action by prison officers. In Committee we sought an amendment which would have adhered to the Government's view except in so far as, where health and safety issues were involved, prison officers should be able to have recourse to the ultimate sanction of the withdrawal of labour. The Government, however, refused to budge an inch over this issue. I have therefore tabled an amendment today to register our opposition to the dilution, as we see it, of the fundamental right of prison officers collectively to take industrial action.
That right, as noble Lords will be aware, is enshrined in many international conventions and declarations to which the Government are a signatory. I shall not go over them again. We went over them in some detail in Committee. Clause 122 effectively reduces to nil the right of prison officers to employ that sanction collectively. It is an ultimate sanction. We are not talking here about people who are normally extremely militant. Many of them were formerly in the Armed Forces, where discipline is almost a way of life. Industrial action of any kind is not undertaken lightly. But the nature of the Prison Service is such that when there is any kind of industrial action it immediately attracts media attention.
Nor are we dealing here with normal working conditions. If we look at the state of the prison system at present we can see why it is important for prison officers to retain their right to this ultimate sanction. The prison population has risen sharply in the past few years. Sixteen months ago the prison population was around 40,000. It is now nearly 49,000. In the first four months of this year the population of prisons in England and Wales went up by 3,500, an average increase of 300 a week. The remand population has gone up by nearly 50 per cent. in the past 15 months. The number of juvenile offenders in custody has increased markedly. Fine defaulters given gaol sentences have doubled in the past 18 months. The population increase leads to knock-on effects that make prisoners much more difficult to handle and more volatile. There is a shortage of suitable accommodation. Prisoners are kept in prisons a long way from families and that increases tension.
Moreover, between 1981 and 1991 the number of prisoners serving between five and 10 years increased by 300 per cent. During the same period the proportion of prisoners serving a sentence of life imprisonment increased by 76 per cent., and those convicted of violence against the person by 21 per cent. The supply of accommodation has not kept pace. Prisoners are being kept in accommodation that is not secure enough

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for their needs. That is reflected in the increase in assaults in prisons. The Government's own figures show that between May 1990 and May 1992 assaults on prison staff increased by 56 per cent. Last year alone they increased by 33 per cent. Last year, on average, one prison officer in eight was assaulted by a prisoner.
There have been 13,000 drug finds in the past five years. Drugs are another cause of prisoner violence. The opportunities for violence against staff and prisoners and for bullying and drug taking have also increased. It is a laudable objective to keep prisoners out of cells but the reality is that there are no more resources to keep prisoners busy for the extra time that they are out of their cells. The additional boredom combined with increased access to other prisoners leads to gangland cultures and no-go areas within prisons as there are not enough staff to run those parts of the prison.
Prison officers and staff have to deal with those conditions. The removal of the right to take industrial action and the right to negotiate pay and conditions will lead to a breakdown of morale and discipline within the prison service, as the only safety valve for prison officers to highlight dangerous and degrading con-ditions will disappear. It will lead to more wildcat strikes by individuals who, by not acting collectively —that is the point—will not break the law. The Bill only makes it illegal to induce a prison officer to contravene Clause 122. In other words, there is a direct prohibition on collective union action and that will make managing the prison more difficult.
Lord Justice Woolf acknowledged that poor industrial relations lead to poor staff-prisoner relation-ships. Therefore it is necessary that industrial relations are normalised in so far as they reasonably can be. That will not be done by removing rights which exist for other employees in other situations. As I said in Committee, prison officers do a necessary job, which many of us would not relish doing. Since they act on our behalf, it is up to us through Parliament to see that their conditions are normalised so far as possible. That is what the amendment seeks to do. I beg to move.
10.15 p.m.
Lord Rodger of Earlsferry; My Lords, as I explained when I spoke to the previous amendment, the purpose of Clause 121 is to improve the position of prison officers in England and Wales. The present position, as has been held by the courts, is that prison officers do not have the right to strike or indeed any of the other rights under employment legislation. Clause 121 improves their position.
The three clauses—Clauses 121 to 123—have to be seen in some sense as a unit. They are designed to give an overall, coherent policy to improve the position of prison officers in England and Wales by giving them protection which they do not have. Nonetheless they make clear that prison officers do not have the right to strike and that if a person contravenes the subsection by inducing a prison officer to withhold his services or commit a breach of discipline, he falls within the provisions of Clause 122.
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The purpose of that clause is to make sure that prison officers do not withdraw their services. Therefore they are in a position analogous to those in the police and the army, who are in a similar position. That is because of the importance of the kind of services which are rendered by members of those services. We recognise that.
The noble Baroness referred to various problems in relation to prisons and prison populations. That only underlines the importance of the work done by prison officers, which we fully acknowledge. It is also all the clearer that, if they were permitted to withdraw their services, it could lead to acute and indeed grave positions. There was a burst of industrial action in 1986 and at that time there were serious disturbances among inmates, including disturbances leading in one prison to destruction of property valued at millions of pounds. We are therefore dealing with a different and specific kind of situation. We believe that in that situation the provisions of Clause 122 are fully justified. They are balanced by the provisions of Clause 123 which provides for the Secretary of State to make regulation providing for the establishment, maintenance and operation of procedures for determining rates of pay and so forth relating to prison officers. For that reason we see all the clauses as being interrelated; as forming an important package which will put employment for prison officers on a proper footing. For those reasons I resist the amendment of the noble Baroness.
Baroness Turner of Camden: My Lords, I am sorry to learn from the Minister that the Government are not prepared to move on the issue. It will be recalled—in fact, I mentioned it in my opening remarks —that we attempted to meet the Government's position to some degree by limiting the industrial action that we proposed to matters concerned with the health and safety of prison officers. But the Minister at that stage was not prepared to accept it. For that reason I came back at Report stage with an attempt to put on record at least our view that prison officers were entitled to the same rights as other employees; that is, the ultimate sanction if need be to withdraw labour. As I indicated earlier, these are not people who are normally militant. However, they are occasionally put under great pressure, as I am sure your Lordships will appreciate. Therefore, to have a situation in which at least it is known that the ultimate sanction is available is much more of a safety valve than perhaps it would be in other situations.
I note that the Minister believes that there is a coherent whole in the clauses. I shall say something about that when speaking to the next amendment. He said also that it is not felt that with this kind of service it is appropriate that there should be a right of collective action. I am sure that the prison officers will not see it that way and I can only hope that when the clauses are in operation they work effectively. Perhaps they will if there is a real attempt to deal with overcrowding and with some of the conditions in prisons that are responsible for the kinds of tension to which I referred in my opening remarks. I have some doubt about that, but there is no point in attempting to divide the House at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 123 [Pay and related conditions]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 134:
Page 97, line 12, at end insert:
("(1A) Procedures established under subsection (1) above shall include the establishment of a Prison Service Arbitration Board, which shall make binding decisions on matters falling within paragraphs (a) and (b) of subsection (1) above in the event of a failure to agree between representatives of persons working in the prison service and the Secretary of State on those matters.").
The noble Baroness said: My Lords, in moving Amendment No. 134 I shall speak also to Amendment No. 135 with which it is grouped, although they are not all that similar. We discussed the right of prison officers to take industrial action. Not surprisingly I was unable to change the Government's mind. However, Amendment No. 134 seeks to introduce a system of arbitration for the pay and conditions negotiations established under the clause. It attempts to provide some recompense for the loss of the right of industrial action.
The Government say that Clause 123 is designed in part to compensate for the removal of the right to collective industrial action by recognising that the bargaining power of the employees' representatives has been greatly reduced. But as the clause now stands it gives the Secretary of State virtually complete power in determining the establishment of any pay and conditions procedures. The Bill only provides that the unions are consulted. That implies a more passive role than if the Bill had required negotiation with the representatives of those working in the prison service.
The Bill seeks to replace a system of negotiation with one of consultation. But of course the Secretary of State does not have to take any notice of the advice he receives in the consultation process. Negotiation, however, gives the employee representatives a more active role. It is vital that the views of the employees —in this case prison officers—are taken seriously. This Bill does not do that.
The pressure from the private sector that has been introduced by the Home Secretary will possibly tempt him to try to drive down the wages of prison staff. An independent arbitration system would provide some restraint. The Edmund-Davies Report into the police pay and negotiating machinery recognised that point when it examined the question of pay in relation to the police and not having the right of industrial action. The Committee said:
"In common with all those who submitted evidence for our consideration, this Committee is satisfied that the absence of the right to strike is a serious deprivation for any worker. It is essential that the police should not suffer in pay because they are deprived of the right to strike, and it should be put beyond doubt that they are being paid fairly".
If that is true for the police it is surely true also for the prison staff. It is a dangerous occupation. Prisoners are among the most dangerous people in our society. For the sake of the safety of the rest of us, they are locked up and prison staff appointed to ensure that that is so. The safety of prison staff is constantly at risk. My earlier amendment opposed the removal of the right to collective action because, among other things, the threat to prison staff has increased. This clause in no way
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replaces the loss, nor does it provide real compensation for it. That is why I am proposing in this amendment an independent form of arbitration. Without such a provision the Secretary of State would have absolute power in regard to wages and conditions.
The Bill does not even guarantee a form of machinery that would allow negotiations at a later stage. We believe that there is considerable merit in having am independent body to which either side can refer a matter in dispute. That body can listen to the representations made by the organisations involved. Both the unions and the prison department could present their case. All sides would believe that they were getting a fair hearing. The result of the arbitration would receive much greater acceptance on all sides.
The experience of arbitration in pay and conditions negotiations in other sectors has been positive. Arbitration is a well-established system that has been used for the police since it was introduced by the Police Act 1964. Why have the Government not sought to include similar provisions in this Bill fot prison staff? The use of arbitration within the police pay and negotiations system has worked for 30 years and was confirmed by this Government more recently in Section 2 of the Police Negotiating Board Act. These measures are enshrined in primary legislation.
I myself have some experience of arbitration although not for the police service. I was for many years a member of the Central Arbitration Committee (CAC). I believe that arbitration as a system has a great deal of merit. In my experience the parties concerned invariably accept with a very good grace the decisions which are reached. I am sure that on the CAC we were often instrumental in defusing some difficult situations.
Prison officers are already feeling disoriented and upset by this Bill. They are worried about what the future may hold for them. If the Government were to accept this amendment —perhaps not this wording but at least in principle—it would do a great deal to allay the fears that have been expressed.
I turn now to Amendment No. 135 with which Amendment No. 134 is grouped. Amendment No. 135 is a small amendment. Again, it is introduced to try to allay the fears and suspicions of prison staff as represented by the Prison Officers' Association. The clause in the Bill as it stands reads,
"Before making any regulations … the Secretary of Suite shall consult with such organisations appearing to him"—
I emphasise that—
"to be representative of persons working in the prison service and with such other persons as he thinks fit".
I do not quarrel with the latter part of the clause. Plainly, he should,
"consult with … such other persons as he thinks fit".
But the words "appearing to him" in the part of the clause referring to,
"organisations … representative of persons working in the prison service"
made me in particular feel slightly suspicious. Organisations are either representative of people working in the prison service or they are not.
The clause as it stands would appear to give the Secretary of State the right to consult organisations that appeared to him to be representative. But supposing that

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he had a row with the Prison Officers' Association and supposing that another organisation was formed -perhaps a breakaway; such things have happened -could he then decide to consult only the breakaway and not the main organisation on the grounds that it appeared to him that the breakaway was more "representative"? I am not saying that that would happen immediately or even with the present Secretary of State. I do not think that it would. But we are creating legislation here that may be on the statute book for a long time. It seems to me that it would be more appropriate simply to say in the Bill, "The Secretary of State shall consult with organisations representative of persons working in the prison service". That is clearer and it is unequivocal. Everybody knows what it means. I beg to move.
10.30 p.m.
Lord Harris of Greenwich: My Lords, I agree with much of what the noble Baroness, Lady Turner, has just said. I have spoken in this House on many occasions in the past 10 years on the subject of industrial relations in the Prison Service. The one point on which I differ from the noble Baroness is her account of what industrial relations in the Prison Service were really like. Frankly, they were appalling. That was indicated in the report of Sir John May, and the report of Lord Justice Woolf indicated that there had been a further deterioration. I am not trying to apportion blame here; I am merely stating a fact. At a lecture that I was invited to give at the prison service staff college, I said that I did not believe that that situation could continue because no government would accept it in the long term. We have therefore reached the sad situation that we are debating today.
Having said that, the point on which I wholly agree with the noble Baroness is that it is essential to have some form of independent arbitration system. There is an analogy with the police—largely because it is unlawful for a police officer to take industrial action, as will now be the case for a prison officer. However, the police are essentially a local government service whereas we are now talking about people who are directly employed by the Crown. Nevertheless, although it will be unlawful for a prison officer to take industrial action, I very much hope that the Government recognise that there is a real danger of a festering sense of injustice developing if the Government misuse the power that they now possess. You cannot possibly run a sensible, civilised prison service unless that is recognised.
As I have argued privately in the past, it is highly desirable to have some form of independent tribunal making judgments or recommendations on prison service pay. I do not think that we can have the very unattractive combination of absolute power for Ministers with the same Ministers determining the pay and conditions of their staff. There has to be an independent system. I very much hope that the Minister will say that the Government's mind is still open on this issue.
Lord Rodger of Earlsferry: My Lords, as the noble Baroness said, the second of these two amendments is perhaps relatively minor by comparison. Its purpose is to state that it it is ultimately for the Secretary of State to consult people who appear to him, in his judgment, to be representative of persons working in the Prison Service. If that judgment were reached on grounds which were perverse—using the word in its broad sense and not giving it its full legal context—it could nowadays be subject to judicial review. Therefore there is not, as there may have been a decade or more ago, a fear that that could be used in an uncontrolled way. It means that he has to make a judgment and consult the people who appear to him to be representative of the prison service. Provided that that is a genuine judgment, that is all right.
The other point of course goes wider. The amendment seeks, in one sense, to pre-empt in part the result of the very process of consultation for which the clause makes provision. The clause provides that,
'The Secretary of State may by regulations provide for the establishment … of procedures".
Subsection (4) states what the regulations may provide.
Subsection (2) provides that before making the regulations the Secretary of State is to consult. There would be no sense in having a consultation process if the outcome of that consultation process and the process of considering the procedures were pre-determined. Therefore I reject the idea that a procedure of the kind envisaged here is one at which the consultation process and the Secretary of State's consideration would inevitably arrive.
It is of course appropriate for the Secretary of State, having consulted, to consider what should be the appropriate mechanisms. Your Lordships will appre-ciate that the provision will cover different kinds of people who are officers within the meaning of the provision. It does not necessarily follow that the mechanism will be the same for all the kinds of people concerned. Some grades may prefer one mechanism and others another.
As I say, we cannot predict what will be the outcome of the procedure. I observe merely that, contrary to what I think was indicated by the noble Baroness, although there is an arbitration system for the police there is no system of binding arbitration, which is what the amendment would provide. Some people criticise the system in the case of the police because it does not provide for binding arbitration. The amendment would go further than what is available for the police at the moment. I accept that it is important that the procedures arrived at here are ones which command a good measure of consent. We hope obviously that to a large extent they can be arrived at by agreement. The whole point of the clause is that it envisages a process of consultation before the appropriate procedures are put in place. We cannot accept that that should be pre-empted in the way envisaged by the amendment.
Baroness Turner of Camden: My Lords, before the noble and learned Lord sits down, will he confirm that the Government's mind is not closed on the subject of

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arbitration, and that they are willing to consider a form of arbitration should that emerge as a result of the consultation process?
Lord Rodger of Earlsferry: My Lords, as I have said, it would be wrong for the Secretary of State to have made up his mind about what would be appropriate even before the legislation is enacted. All I say is that what the noble Baroness was suggesting was a form of arbitration which went further than is the position for the police at the moment. I cannot go any further than that.
Lord Harris of Greenwich: My Lords, the noble and learned Lord has not answered the question. Whatever may in law be right or wrong, we all know perfectly well that the Secretary of State has of course decided how he will approach the legislation. Having served in the Home Office, I am well aware of how Ministers respond. What the noble Baroness asked was whether the Government had decided finally not to accept any form of independent arbitration. I should be extremely grateful if we could have an answer to that question.
Lord Rodger of Earlsferry: My Lords, I adhere to the position that it would be wrong to anticipate Parliament's view on these matters. I am sure that that would have been wrong even in the noble Lord's time at the Home Office. However, we have not finalised a view and it follows that we have not ruled out a form of arbitration. That is one of the possibilities which will enter the final outcome of any consultation. At the end of the day, the consultation takes place and then the Secretary of State makes up his mind.
Baroness Turner of Camden: My Lords, I note what the Minister said and I am grateful for his final comments. At least prison officers will be aware that their request for an independent form of assessment of wages and conditions will be taken seriously by the Government.
In response to Amendment No. 135, the Minister indicated that a perverse decision by the Secretary of State as to the organisations which he did or did not consult would be open to judicial review. Of course, I am aware of that. However, it is a somewhat lengthy process and a rather expensive one. I believe that it would have been more sensible to have accepted my amendments and included a clause providing that the Secretary of State shall consult organisations which are representative of people working in the prison service.
I note the views that have been expressed tonight. I am grateful for the acceptance that independent arbitration has not been ruled out and that there will be consultation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 135 not moved.]
Clause 131 [Execution of warrants]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 135A:
Page 103, leave out lines 33 to 45 and insert: ("( ) A person arrested in pursuance of a warrant shall be taken, as soon as reasonably practicable, to any place to which he is committed by, or may be conveyed under, the warrant.").
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 135B, 136 and 137. These are technical amendments. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 135B:
Page 104, line 17, leave out ("of detention and return of sentence") and insert ("to imprison (or to apprehend and imprison)").
On Question, amendment agreed to.
Clause 136 [Aid of one police force by another]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 136 and 137:
Page 110, line 15, leave out ("demands") and insert ("demand").
Page 110, line 25, leave out ("demands") and insert ("demand").
On Question, amendments agreed to.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 137A:
After Clause 136, insert the following new clause:
("Sexual offences: rape Rape of women and men
. For section 1 of the Sexual Offences Act 1956 (rape of a woman) there shall be substituted the following section—
"Rape of woman or man.
1.—(1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if—

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it

(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.
(4) Subsection (2) applies for the purpose of any enactment." ").
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 126B. I beg to move.
On Question, amendment agreed to.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 137B:
After Clause 136, insert the following new clause:
("Sexual offences: revised penalties
Sexual offences: revised penalties

.—(1) The following paragraphs of the Second Schedule to the Sexual Offences Act 1956 (which prescribe the punishments for offences of buggery and of indecency between men) shall be amended as follows.

(2) In paragraph 3—

(a) in sub-paragraph (a) (buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years."; and

(b) in sub-paragraph (b) (attempted buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years.".

(3) In paragraph 16—

(a) in sub-paragraph (a) (indecency between men), for the entry in the third column there shall be substituted 'Two years."; and

(b) in sub-paragraph (b) (attempted procurement of commission by a man of an act of gross indecency with another man), for the entry in the third column there shall be substituted 'Two years.".").

The noble Lord said: My Lords, Amendment No. 193A is consequential on this amendment. My second sequence of amendments is broadly consequential on the amendments in respect of rape, which we discussed earlier. The purpose is to tidy up the law relating to penalties where buggery would remain an offence but would not be rape.
This sequence of amendments also relates to Amendment No. 137C in the name of my noble friend Lady Mallalieu, on heterosexual buggery. If that amendment is agreed to by your Lordships there will need to be a penalty for those instances of heterosexual buggery which remain an offence. At the same time, I seek in these amendments to reform the scale of penalties for gross indecency and to bring them into line.
I do not wish to weary your Lordships by going through a complex situation in too much detail. However, I am afraid that some detail is unavoidable. First, I deal with the law as it is. These amendments do not seek to change that. They do not seek to change any penalty involving sex with either a boy or a girl under the age of 16. That age is the most significant watershed in relation to the offences. Buggery with someone under that age carries a sentence of life imprisonment. I remind your Lordships of the offence of indecent assault which carries a maximum of 10 years where unwelcome sexual advances short of rape have been made on either a woman or a man or where a boy or a girl under 16 cannot in law have been held to have consented to the act in question.
However, the offence of unlawful sexual intercourse with a girl aged between 13 and 16 carries a maximum sentence of two years. All that being so, my amendments deal in practice with instances of consensual sex in one of two classes of case: either— and this is clearly the most serious case—where one or both of the parties are under age but over 16; or else, where the sex takes place in unlawful circumstances. That would most notably be in public. Therefore, in the latter case, we are dealing as much with a public decency offence as with a sexual offence.
At present, consensual gross indecency or buggery between a man over 21 and a young man under 21 but over 16 carries a penalty of five years. Where both men are under 21, the penalty is two years. Where both men are over 21, the penalty is also two years.
My approach is simple. I seek merely to impose a penalty of two years across the board. That would apply in the case of consensual buggery with a girl aged between 16 and 18, if my noble friend's amendment is accepted. I suggest to your Lordships that that is not much of a change. I considered making the five year penalty apply where there is consensual sex between someone over 18 and someone under 18 but that would have the curious effect of actually increasing the present penalty in the case of some homosexual men, where someone between the ages of 18 and 21 has sex with someone aged 16 or 17. My standard has been the penalty for unlawful sexual intercourse with a girl aged between 13 and 16. I cannot see that a higher penalty should apply to an older age group. I beg to move.
10.45 p.m.
Lord Kilmarnock: My Lords, I feel that the noble Lord, Lord Ponsonby of Shulbrede, has steered us extremely lucidly through this labyrinth, as he did in Committee. Again, as on the previous amendment in relation to male rape, he has all the arguments on his side.
I understand that some help has been given with drafting the amendment. I hope that the Government will look upon it with the same munificence with which they regarded the noble Lord's previous amendments.
Earl Ferrers: My Lords, in Committee I said that we should hesitate to do away altogether with the current five-year maximum penalty for consensual homosexual acts between an older and a younger man; for example, where the younger man was still under the new age of consent. However, I do not dispute that the change in the age of consent for homosexuals makes desirable some change in the penalties.
I believe that we should consider circumstances in which the consent of the younger person may, in some sense, be tainted. For example, I am thinking of a case in which an older man may abuse a position of authority to obtain sexual favours from an adolescent in his care. That can be especially dangerous and wicked in a residential setting where a disadvantaged or inadequate young man may find himself to be the prey of an older man who has sought employment there only to indulge his sexual preferences.
In those circumstances, it may be impossible to prove an absence of consent but Parliament has decided in the course of the Bill that young men of 16 and 17 years of age need a special protection from homosexual advances. Thankfully, that sort of thing does not happen very often in those circumstances; but a maximum penalty of two years may not be sufficient where it does happen.
Therefore, I should be hesitant to accept the amendment but I should like to consider the matter further before Third Reading in the hope that it may be possible to produce another proposal for your Lordships to consider. I hope on that basis the noble Lord will agree to withdraw the amendment, at least for the time being.
Lord Kilmarnock: My Lords, I have a question to put to the Minister before he sits down and before the noble Lord, Lord Ponsonby, responds. In the light of his final remarks, will the noble Earl consider looking at some of the continental arrangements whereby the sort of undesirable consequences about which he talked are taken care of by a differential age where people are in a position of special responsibility or trust vis-a-vis a younger person?
Earl Ferrers: My Lords, I am not too familiar with what happens on the Continent; indeed, I am not all that familiar with what happens here in that respect. However, I shall certainly see that the point is considered along with the main substance of the noble Lord's amendment.
Lord Ponsonby of Shulbrede: My Lords, I am sure that the noble Earl will forgive me if I say that I am slightly surprised by his response. He will know that I received the greatest co-operation from his office in the drafting of the amendments. However, I believe that I understand the noble Earl's anxiety. There may be a small number of cases where a young man under 18 but over 16 may be inveigled into having a sexual relationship with an older man by undue influence, but where neither rape nor indecent assault can be charged because the younger man could be held to have consented. As I understand it, that is the Minister's argument. Indeed, he mentioned the instance of young men who are held in care. It seems to me that there should be a substantial penalty in that respect.
However, by and large, we are dealing with a category of offences which are public order offences —that is, offences that are serious but which are not the terrible breach of trust suggested by the Minister. It is the peculiar structure of the law on homosexual acts which lumps those in with the cases of under-age sex across age barriers.
To see the real problem, I believe that we need to look at the actual offences. I have with me some figures regarding convictions for gross indecency which have been taken from Home Office replies to Questions. In the years 1990–92, there were 577 convictions for gross indecency, 154 of which involved a male over 21 with a male under 21. However, there were only eight sentences of immediate custody for them, six of which related to a case of a man over 21 with a man under 21 —and one was himself under 21. But—and this is the significant point—only 12 of the those 154 offences related to age-of-consent offences as such; that is, where the act was in private.
In short, I suggest that this is overwhelmingly a public order offence. At the risk of giving a hostage to fortune, I see no real reason why a 16-year old should be treated more leniently in the context of public order than a 21-year old. I certainly see no instance where a maximum penalty of more than two years would be appropriate.
I hope that the noble Earl will be able to find a way of separating the very few hard cases to which he referred from the generality. I should be interested to hear of a case where a higher sentence than two years has in fact been imposed under the present law. I believe that that would prove that there is a real evil to remedy.
I repeat my earlier point. I cannot see why we have to protect young men of 16 and 17 by a higher penalty than the one with which we protect young girls of 13 to If the amendment tabled in the name of my noble friend Lady Mallalieu is passed, we will need to decide on a penalty for consensual buggery with a girl of 16 or I can see no need for a different penalty in that respect. I also see no need for a different penalty from that which applies in Scotland where I believe there is a two-year sentence across the board. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 137C:
After Clause 136, insert the following new clause:
("Sexual offences: male rape and buggery
Male rape and buggery

(1) Section 12 of the Sexual Offences Act 1956 (offence of buggery) shall be amended as follows.

(2) In subsection (1), after the words "another person" there shall be inserted the words "otherwise than in lawful circumstances".

(3) After subsection (1), there shall be inserted the following subsections—

"(1A) An act of buggery takes place in lawful circumstances if it takes place in private and both parties have attained the age of eighteen.

(1B) An act of buggery by a man with another shall not be treated as taking place in private if it takes place—

(a) when more than two persons take part or are present; or

(b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise."").

The noble Baroness said: My Lords, in Committee I tabled an amendment to decriminalise buggery when it takes place between an adult man and an adult woman in private and when both consent. That amendment drew support from noble Lords on all sides of the Chamber for which I was most grateful Many others who did not speak in the debate have expressed their support to me in the interim period. On that occasion, the noble Earl said that he wished to consider what had been said, so I withdrew the amendment and said that I would return to the matter on Report.
The amendment which I move this evening looks rather different. I should explain that I have received the helpful advice of the noble Earl's office and of the parliamentary draftsman for which I am also grateful. But its effect is intended to be the same as the original. I hope the House will permit me briefly to explain the provisions and the effect of this amendment.
Under the law at present, anal sexual intercourse between an adult man and an adult woman conducted in private, even where both consent, is illegal. That this far from uncommon activity is a crime astonishes many members of the general public and further dumbfounds them when they learn, additionally, that the offence presently carries a maximum penalty of life imprison-ment. In most cases, of course, no one complains. No one outside the couple concerned knows so the law is not involved, but there are exceptions.
A complaint is sometimes made by a woman following the breakdown of a relationship or a marriage that she has been the victim of violence, or rape or sometimes buggery. It is in those circumstances that a trial sometimes follows at which the man admits buggery but claims that the woman consented. If he goes on to fight the case, the jury are told by the judge that they have no alternative but to find him guilty because consent is no defence. If he is found guilty, or pleads guilty to buggery, the question of whether or not the woman consented is for the judge alone to decide, not the jury. It is purely a question of mitigation.
Where the judge decides the woman did not consent, a sentence—as the noble Earl has already said in answer to one of the amendments of the noble Lord, Lord Ponsonby—of some years imprisonment is imposed, akin to a sentence in a rape case. But where the judge decides the woman consented, or may have consented, the Encyclopaedia of Sentencing, which supplies precedents to judges and contains the guideline cases to

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which judges must have regard, indicates that for consensual buggery between an adult man and an adult woman in private the appropriate sentence is an immediate custodial sentence of three months. From experience as a barrister I know that such sentences are indeed imposed.
A great deal has been said in this House during the passage of this Bill, and elsewhere too, about the need for equality between the sexes. It cannot, I believe, be right for a form of private sexual behaviour to which both parties consent to be legitimate when it takes place between two men but to attract an immediate prison sentence when it concerns a man and a woman. The idea of anal sexual intercourse is, I suspect, repugnant to many people, perhaps a majority, and if this amendment is accepted people who feel that way will no doubt continue to feel just the same. The health risks of this type of intercourse are well known and are likely to be a deterrent in themselves, and that too would not change. But I hope that the proposed change in the law would have a number of real benefits. It would remove a bar to those who may be in need of medical advice or treatment but who are afraid to seek it and thus admit to a serious criminal offence and risk the possible prosecution as a result. It would remove an almost wholly unenforceable, anachronistic and inequitable piece of legislation with draconian penalties from the overloaded statute book.
The reasons why Parliament failed to alter the law in this respect back in 1967 when similar activity for adult men was legalised are unclear. Embarrassment and unwillingness to accept that such behaviour can be consensual, distaste and even perhaps indifference, I suspect all played a part. So people have continued to be sent to prison for heterosexual consensual buggery for nearly 30 years after consensual homosexual buggery was legalised.
I hope that the Minister will feel, after reflection, that he can accept this amendment. For far too long the long arm of the law has been allowed to reach behind the bedroom door to wave the finger of disapproval at adult men and women engaged in private sexual activity of this kind and indeed to lock some of them up. It is about time that not only adult men but adult women too should be able to close the bedroom door firmly in the face of the law in these circumstances and tell it to mind its own business. I beg to move.
11 p.m.
Lord Harris of Greenwich: My Lords, the noble Baroness has made an unanswerable case. I hope very much that on the basis of what she said the Government will accept the amendment. It would be an absurdity to say that if two men become involved in activities of this sort it is not a crime but if a man and a woman indulge in precisely the same conduct it is a crime. I hope that the noble Earl will accept the amendment.
Earl Ferrers: My Lords, the noble Lord, Lord Harris of Greenwich, invariably invites me to accept an amendment. I do not always do so. I said in Committee that I would consider carefully the arguments put
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forward by the noble Baroness, Lady Mallalieu. Indeed, I have spent a good deal of my time since Committee considering her arguments on one matter or another with regard to the Bill.
I have already explained how our reluctance to see the Bill diverted into a sexual offences Bill has caused us to approach matters of this kind with some caution. However, there is no doubt that many people are surprised to discover that the law forbids any consensual heterosexual buggery, whatever the circumstances. I would not wish to suggest that this practice is common, although the noble Baroness says that it is a good deal more common than one might suspect. I have no idea, thank heavens, and no way of knowing whether it is a common practice. However, it seems obvious that this offence is unenforceable.
The Criminal Law Revision Committee called for a change in the law in 1984, and it has been a lack of opportunity to debate the issue rather than any objection of principle which has prevented Parliament doing anything about it earlier. This is a matter relating to the private sexual activity of consenting adults. Although the noble Lord, Lord Harris, says he hopes that the Government will accept the amendment, I should tell your Lordships that for that reason it is a matter which should be the subject of noble Lords' individual opinions. In the Government's view it is a matter which should be the subject of a free vote of your Lordships.
For my part, I believe that the noble Baroness, Lady Mallalieu, has tabled a sensible amendment to which I should be happy to give my approval.
Baroness Mallalieu: My Lords, I am most grateful both to the noble Earl and to the noble Lord, Lord Harris of Greenwich, for what they have said. I am also particularly grateful for the assistance that I have had with the amendment from the staff in the noble Earl's office. In the light of what has been said by those who have chosen to speak I urge the House to accept that this is a small but important amendment and a step in a sensible direction. I commend the amendment to the House.
On Question, amendment agreed to.
[Amendments Nos. 138 to 141 had been withdrawn from the Marshalled List.]
Earl Ferrers Earl Ferrers moved Amendment No. 142:
After Clause 137, insert the following new clause:
("The Parole Board
Incorporation of the Parole Board
. In section 32 of the Criminal Justice Act 1991 (which provides the constitution and basic functions of the Parole Board), for subsection (1), there shall be substituted the following subsection—
"(1) The Parole Board shall be, by that name, a body corporate and as such shall be constituted in accordance with, and have the functions conferred by, this Part."").
The noble Earl said: My Lords, in moving Amendment No. 142 I shall speak also to Amendment No. 188. These amendments are intended to give the Parole Board full non-departmental public body status. Similar amendments tabled in Committee by my noble friend Lord Windlesham were agreed to in principle by

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the Government, and I offered to bring forward the appropriate amendments at Report stage. These are they.
Lord Belstead: My Lords, in the absence of my noble friend Lord Windlesham, who is unavoidably away from your Lordships' House this evening, I thank my noble friend the Minister for the positive response to his amendments at the previous stage of the Bill.
I declare an interest as chairman of the Parole Board. I am most grateful to the Government for their positive response to what, in effect, were probing amendments by my noble friend. The amendments which my noble friend Lord Ferrers proposes are in line with the additional responsibilities placed on the Parole Board by the Criminal Justice Act 1991.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 143:
After Clause 137, insert the following new clause:
Powers to recall prisoners released on licence
(". In section 50 of the Criminal Justice Act 1991 (power by order to transfer certain functions to the Parole Board) subsection (4) shall cease to have effect and, in subsection (1), for the words "(2) to (4)" there shall be substituted the words "(2) or (3)".
The noble Earl said: My Lords, I beg to move Amendment No. 143 and speak to Amendments Nos. 176, 203, 205 and 211.
These amendments make changes to the Criminal Justice Act 1991 concerning the recall to custody of those persons on parole. Similar amendments were tabled at the Committee stage by my noble friend Lord Windlesham which the Government agreed to in principle and I offered to table appropriate amendments at the Report stage. This we have now done.
Where offenders misbehave while on parole, there is a discretion to revoke their licence and to recall them to prison. Sometimes this can happen in an emergency and it is therefore essential, in order to protect the safety of the public, that the procedures should be straightforward.
Until recently, outside office hours, decisions to recall those on parole were taken by officials on behalf of the Home Secretary. But because of the construction of the Criminal Justice Act 1991, two systems of recall are now running in parallel: one by the Parole Board and the other by the Home Secretary.
This causes confusion to the police and probation service and, in an emergency, valuable time can be lost. This can jeopardise the safety of the public and therefore must be changed.
To simplify procedures, only one system of recall should operate and it has been agreed with the Parole Board that it should rest with the Home Secretary. But the board will continue to review decisions to recall those on parole. I beg to move.
Lord Belstead: My Lords, I thank the Minister for the amendment. It does not remove any power or responsibility from the Parole Board but puts the procedures for the recall of prisoners, in particular emergency recalls, on to a good footing.
I do not ask the noble Earl a question, but express the hope that when the commencement provisions are brought into effect by Clause 159 of the Bill, this

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government amendment —it is most welcome so far as concerns the Parole Board—will be brought into effect immediately.
On Question, amendment agreed to.
[Amendment No. 144 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 144A:
After Clause 137, insert the following new clause:
( "Body to investigate miscarriages of justice
(1) The Secretary of State shall within one month of the date of Royal Assent of this Act lay before both Houses of Parliament a report describing what plans he has to set up an independent body to investigate alleged miscarriages of criminal justice in England, Wales, Scotland and Northern Ireland and the timetable within which he proposes to do so.").
The noble Lord said: My Lords, at Second Reading of the Bill, I spoke in a spirit of congratulation to the Government about the consultation document which they issued in April of this year about the criminal cases review authority. It is well known that on these Benches we regret the extent to which the Bill—it had been heralded as a Bill to deal with miscarriages of justice —failed to deal with what to us was one of the central recommendations of the Runciman Royal Commission: that there should be established an independent criminal cases review authority. We had contemplated tabling amendments to the Bill to provide for the introduction of such an authority, if necessary on a non-statutory basis. We were disarmed by the consultation document, the White Paper published in April of this year. It seemed to us an excellent statement of the issues which the Runciman Royal Commission had brought forward and to cover the quite complicated issues. We recognise the difficulty of bringing forward legislation on matters such as those raised by the establishment of an independent criminal cases review authority. Our hopes were buoyed up by the thought that, the Government having published this White Paper, and having set a reasonable period—it was reasonably short and reasonably long—for consultation, they might proceed to legislation in the 1994-95 Session.
At the time I discussed the matter with the noble Viscount, Lord Runciman. He was so pleased with the White Paper—as I was—that he said he would not be submitting formal evidence to the Government about the White Paper because he felt the issues had been adequately canvassed. Imagine our disappointment, then, when we had press reports—and they are bound to be only press reports because no one will commit the Government to any particular item of legislation in the next Session—that the setting up of the criminal cases review authority, or rather legislation to provide for its setting up, could not be introduced in the Session of 1994–95; it would be delayed until the following Session.
It was not only we who felt this sense of disappointment. The Lord Chief Justice made a speech to the Lord Mayor's dinner for judges on Wednesday 6th July, last week. I do not need his authority to quote it because it is a public matter, but I have talked to him about it. He said:
"I have supported the Government's view that solving the practical problems and working out the details of these proposals"—
that is the Royal Commission's detailed package of recommendations—
"made it impossible for them to be included in the Criminal Justice Bill presently before Parliament. The same applies to the Commission's proposal of a new Review Authority to examine alleged miscarriages of justice. But I regard it as of the greatest importance that these provisions be enacted in the next session of Parliament. They should not be further postponed and I trust the Government will give them high priority in their programme for legislation".
We ask no more than that. The device of asking for a report from the Secretary of State within a month of Royal Assent is not intended as an amendment on which we would seek to divide the House. It is intended first to express our support for the Lord Chief Justice's view of how important it is that the criminal cases review authority should be included in legislation in the next Session.
Having consulted my honourable friends in another place, I am authorised to say to the Government, if it is any help to them in making final decisions about what legislation shall be brought forward, that provided, of course, that the legislation follows the thrust of the consultation document and subject to the fact that there are different options proposed in that consultation document—and we may not always agree about each of the options that the Government finally choose—it certainly is the Opposition's view that in both Houses we will give a fair wind to legislation to achieve that objective.
I hope that that will be helpful as a public statement of the position of the Labour Party in support of the criminal cases review authority which we consider to be central to the implementation of the report of the Royal Commission. We very much hope that time will be found for it in the Session of 1994–95. I beg to move.
Lord Harris of Greenwich: My Lords, I agree with everything that the noble Lord, Lord McIntosh said. I find it mildly surprising that we are having to say it at all. Just as the Lord Chief Justice indicated his concern in the matter only last week, it is right that we should register our concern today. After all, why was the recent Royal Commission set up? It was set up because of alleged miscarriages of justice, and it became clear that they were miscarriages of justice.
The recommendation of the Royal Commission was that such an authority should be set up. The Government have published their consultation paper and we welcome it. But it would, in my view, be quite deplorable were we not to have such a Bill introduced in the next Session of Parliament. I hope that the noble Earl will not say: "I cannot anticipate the contents of the Queen's Speech"—that favourite line which one has heard from different governments over many years. The fact is that there is now a serious expectation in Parliament that this legislation will receive priority. The amount of legislation put before this House at the beginning of a Session of Parliament tends to be rather limited in its scope. There was a substantial exception in the present Session, but normally the situation is that most significant Bills are introduced in the House of Commons rather than here. Given that fact, this seems to me to be just the sort of legislation that could be
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introduced in this House after the Queen's Speech. I very much hope that that will be done. The noble Earl should have no doubt, if in fact that is not done, that the Government will, in my view deservedly, come in for the most severe criticism.
11.15 p.m.
Earl Ferrers: My Lords, the amendment contem-plates a single review authority to examine alleged miscarriages throughout the United Kingdom and to refer appropriate cases to the court. I suggest that the amendment is unnecessary whichever jurisdiction one considers, although I realise that it is merely a device to enable us to discuss the subject matter.
Perhaps I may take first the position that the Government propose in England and Wales, where we have already made clear what we intend to do. My right honourable friend the Home Secretary announced last October that the Government had accepted the Royal Commission's recommendation that his powers to investigate alleged miscarriages of justice and to refer appropriate cases to the Court of Appeal should be removed and a new authority—a criminal cases review authority—which would be independent of both government and the courts should be set up to undertake those functions in his place.
A discussion paper setting out the Government's proposals in detail was issued last March. That paper invited comments on what was proposed. I know that many noble Lords have seen the paper; indeed, some noble Lords have responded to it either individually or through an organisation with which they are connected. We have received a lot of very helpful and constructive responses to the discussion paper. Those are currently being considered with a view to decisions being made on the final shape of the new arrangements.
I fully understand the desire that has been expressed this evening in this House and which has been expressed in another place, as well as those views that have been expressed outside Parliament, that the new authority should be set up as quickly as possible. However, what we envisage amounts to quite a major constitutional change. Whatever new arrangements are put in place, we must fully think them out and ensure that they are soundly based. They must command the confidence of those who look to the new authority for assistance. They must command the confidence of practitioners in this area of the criminal justice system; and they must command the confidence of the public. It is vital that we should get matters right. That is why we have not attempted to include provisions to establish the proposed authority in this Bill but have consulted instead on the detailed proposals.
I know that there have been some recent speculative press articles. But your Lordships will know—even though the noble Lord, Lord Harris, does not like me to remind him—that I cannot speculate on the content of the legislative programme for next Session. What I can say, though, is that the Government remain fully committed to setting up the proposed authority for England and Wales and that we hope to bring forward legislation to establish it as soon as practicable.

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With regard to Scotland, although the remit of the Royal Commission did not extend to Scotland noble Lords will recall that my right honourable friend the Secretary of State for Scotland undertook to consider the implications of its recommendations for the Scottish criminal justice system. In a consultation paper of February this year the Secretary of State for Scotland sought views on options for change to the procedures and the jurisdiction for considering alleged miscarriages of justice. Those procedures are broadly the same as those which apply at present in England and Wales.
I understand that the consultation exercise did not produce any widespread support for any change to the present arrangements in Scotland, notwithstanding the Government's intention to establish a criminal cases review authority in England and Wales. As a result, my right honourable friend the Secretary of State for Scotland indicated in his White Paper, published on 27th June, that for the time being he will continue to exercise his powers to refer cases to the Appeal Court in Scotland in considering petitions which allege miscarriages of justice.
The Government do not rule out the possibility of change in this area in Scotland. The White Paper also announced that further consideration of the issues was required and that the Government intended to appoint an independent committee to look at them and the related issue of the consideration of appeals by the Appeal Court in Scotland in detail. An announcement will be made shortly on the membership and the remit of the committee. But we intend that it should include a member of the senior judiciary and others with knowledge and experience of the Scottish criminal justice law.
With regard to the position in Northern Ireland, many noble Lords will know that my right honourable friend the Secretary of State for Northern Ireland has also considered the implications of the Royal Commission's recommendations for the criminal justice system there. My right honourable friend issued at the beginning of June his own discussion paper Criminal Appeals and Arrangements for dealing with Alleged Miscarriages of Justice in Northern Ireland. The paper seeks public comments by 15th July. It canvasses a range of possible new arrangements for Northern Ireland. I understand that my right honourable friend intends to decide what future arrangements should be made in Northern Ireland in the light of the responses to the paper.
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I hope that what I have said tonight will reassure noble Lords that we are firmly committed to establishing the new criminal cases review authority for England and Wales. But of course I cannot anticipate what will be in the Queen's Speech.
Lord McIntosh of Haringey: My Lords, I could not have expected the Minister to go further than he hats done so far as concerns England and Wales. I am disappointed—and it shows my ignorance, for which I am culpable—as to his responses for Scotland and Northern Ireland. I should have known of those consultation documents and that it was the position of the Secretaries of State concerned that there was not perhaps the same urgency as there is thought to be in England and Wales.
I am particularly disappointed in what I heard about the thinking of the Secretary of State for Scotland. As my amendment makes clear, it is important that similar bodies should be set up for the whole of the United Kingdom. In the end it would be an absurdity if the Home Office were to divest itself of this onerous and not always very well conducted task to an independent body, as has been accepted by the Home Secretary, only to find that the Secretary of State for Scotland retained the same powers.
I believe that the Minister understands very well what we are trying to do with the amendment. We did not expect a commitment. We are saying to the Minister, "Here he is. With admirable fortitude he has dealt with three heavily contested Bills this Session. Next Session, would he not like a Bill on which we are all working together with the same objective?" I hope that he will be tempted by that prospect. In the meantime, 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.
Moved accordingly, and, on Question, Motion agreed to.

Land Drainage Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at twenty-three minutes past eleven o'clock.