Lords Sitting of 12 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.
Lord Freyberg —Sat first in Parliament after the death of his father.
Lord Parmoor —Took the Oath.

Youth Training: Records
Earl Russell Earl Russell asked Her Majesty's Government:
Which government record is capable of recording any failure to deliver the guarantee of a youth training place for every 16 and 17 year-old who wants one.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): My Lords, it is the responsibility of training and enterprise councils to deliver the youth training guarantee. According to information supplied by local careers services, on 31st May there were only 213 young people in England waiting for the offer of a YT place for eight or more weeks.
Earl Russell: My Lords, the Question asks for any government record from which it is possible to discover whether the guarantee is being delivered. Am I to understand that the Minister is not able to quote such a source? If so, is he saying, like Belloc's Lord Hippo, that he knows because someone who was in the know had confidently told him so?
Lord Henley: My Lords, I could have simply answered, no. I thought that I would give a more helpful answer to the noble Earl. I was making clear that there is no central government record and that we do not believe it necessary to have such a record. However, from information supplied by the local careers services in every LEA or wherever, we are informed that there were only 213 such people.
Lord Rochester: My Lords, how can the Government ensure the delivery of a government guarantee through a non-governmental body? Do the Government have any record of their own which would enable them to establish whether any 16 or 17 year-olds have been excluded from the guarantee group, and if so, for what reason?
Lord Henley: My Lords, again I have to make clear that we base our evidence on that provided by the careers service. That indicates that there are 213 people who have not been covered by the guarantee. Perhaps I should make it clear that delivery of the guarantee is a matter for the TECs. I can given an assurance to the noble Lord that no TEC will be prevented, through lack of resources, from meeting that YT guarantee.
Lord Stallard: My Lords, does the Minister recall that the noble Viscount, Lord Goschen, in reply to a Question earlier this year about the careers service, intimated that the Government do not use its statistics in their calculations? Can the Minister now confirm that the reply given by the noble Viscount that the Government do not use the careers service statistics in checking whether the guarantee is being delivered is because they are not government records? Can the Minister confirm that?
Lord Henley: My Lords, my noble friend was referring to the position which applied some time earlier. As from the end of last year the careers service has provided us with the appropriate information. I make clear to the noble Lord that the number of people not covered by the guarantee fell from 4,000 to 3,000 a year ago and is now a mere 213 in England.
Lord Dean of Beswick: My Lords, can the Minister say what percentage of these young people, on completion of a course, obtain real jobs? If it is not a substantial percentage, does the Minister agree that it is an appalling disappointment for those who complete a training scheme only to find that there is no job at the end of it?
Lord Henley: My Lords, I cannot answer the noble Lord's question, but I assure him that unemployment among young people, whether measured for 16 or 17 year-olds or under-25 year-olds, is far lower than that experienced by most of our European colleagues, It is certainly lower than the European average. The employment rate among young people, at 55.9 per cent., is the second highest in the EC while staying on rates in education have increased from about 42 per cent. of 16 year-olds in 1979-80 to about 70 per cent. in 1992–93.
Lord Campbell of Alloway: My Lords, is my noble friend aware that the answers he has given to this Question appear wholly sensible, straightforward and satisfactory? Does he agree that the concept of keeping records of records involves tremendous expense? When they are produced they are all challenged as being fudged anyway.
Lord Henley: My Lords, I am very grateful for my noble friend's question. Of course I believe that my answers have been wholly satisfactory. As I made clear, I do not believe that it is necessary to keep central records in this matter. It would be unnecessarily bureaucratic, burdensome and costly. We have perfectly adequate records provided by the local careers services.
Baroness Seear: My Lords, we understand that the Government are using the careers service records. If those records are accurate and the Minister is satisfied that they are, that is satisfactory. However, my recollection is that very frequently the careers service admitted that it was unable to trace quite a number of people who had left school. Have the Government a record of how many people have been "lost" because those are likely to be the people in whom we are particularly interested? Is the careers service certain that it is tracing everybody, because it never used to?
Lord Henley: My Lords, it is always possible that one or two people have been missed. If so, and the noble Baroness brings them to my attention, I would be prepared to take up their case.
Baroness Seear: My Lords, how does the noble Lord think I am going to find them if they have been lost?
Lord Henley: My Lords, I am sure that the noble Baroness would be very good at it. I am trying to make clear that I believe the careers service, which is there on the ground and locally based, is the best organisation to provide such records. Those records indicate a very dramatic fall-off in the number of those for whom the guarantee is failing. The noble Baroness should be pleased that I am able to tell the House that there are now only about 213 people in England who are not covered. That figure used to be of the order of 4,000.
Lord Hailsham of Saint Marylebone: My Lords, does not the original Question ask for the records of someone who wants a place? How can there possibly be a record of what they want as distinct from what they have applied for?
Lord Henley: My Lords, I am most grateful to my noble and learned friend for bringing to the attention of the House the precise wording of the Question put down by the noble Earl. I answered it as best I could. I think that my noble and learned friend will be glad that the figure has fallen to 213.
Baroness Turner of Camden: My Lords, will the Minister let the House know how many 16 and 17 year-olds awarded hardship payments in 1993–94 were registered for youth training? What is the average length of time they had been waiting for a placement? Will he tell the House also how it is possible to monitor the success of government policies in that area unless proper records are kept?
Lord Henley: My Lords, proper records are kept, and proper research is undertaken to ensure that we have the appropriate details. I can answer part of the noble Baroness's question. There were, I believe, 137,870 applications for severe hardship payments in 1993 of which 118,528 were successful.
Baroness David: My Lords, have the Government yet discovered a means of eliminating double counting from their figures to show how many 16 and 17 year-olds are in education, employment or youth training?
Lord Henley: My Lords, these matters are difficult. As the noble Baroness will be aware, according to the labour force survey conducted under ILO methodology there are some 122,000 unemployed 16 and 17 year-olds, but that figure includes 52,000 people who are in full-time education. That is because the method by which the ILO decrees that unemployment should be calculated includes those who say they are looking for jobs or will be available for jobs in two weeks' time. That job can be a part-time or Saturday job.
Earl Russell: My Lords, is the Minister aware that people on the ground such as Centrepoint constantly
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find 16 and 17 year-olds with no visible legal means of support, and that many of us believe that if government records are creating "unpersons" with no visible legal means of support that is a very serious matter?
Lord Henley: My Lords, in cases of no visible legal means of support, it is open to that individual or those who advise that individual to apply for severe hardship payments. Severe hardship claims are dealt with on the basis that the guarantee is not being met but that the claimant is also prepared to look for a job or various forms of training. We do not believe that it is right to provide income support, as the noble Earl desires, for all those who claim it merely because they feel that it is unnecessary to take up a YT place.

New Cars: "On The Road" Charges
2.47 p.m.
Lord Ewing of Kirkford Lord Ewing of Kirkford asked Her Majesty's Government:
Whether they will conduct an inquiry into the "on the road" charges included in the purchase cost of a new car.
Viscount Goschen: My Lords, the Government see no need for any inquiry on this matter.
Lord Ewing of Kirkford: My Lords, to say the least, I am disappointed. Is the Minister aware that over the past two years the on-the-road charges to which I refer in my Question have in some cases doubled and in most cases more than trebled? We are now seeing a situation where someone purchasing a new vehicle, as millions of people will do in two weeks' time, are being asked for sums ranging from £600 to £1,000 for on-the-road charges. How can the Minister say that there is no need for an inquiry when vehicle excise duty is only £130 and a pair of plates will come to no more than £30? The Government removed the car tax to help the car industry but all that has happened since is that the dealers have added it in to inflate their profits. In a fortnight's time, millions of motorists in this country will be ripped off by the on-the-road charges.
Viscount Goschen: My Lords, the view of the Retail Motor Industry Federation is that typical "on-the-road" charges have stabilised at about £300 to £450. The important point is that the consumer is already protected under existing legislation. The Price Marking Order 1991 requires that where a purchase is subject to payment for ancillary goods or services such as a delivery charge, the extra charge should be included in the price quoted, or, if quoted separately, shown with equal prominence to that of the stated price.
Lord Palmer: My Lords, will the noble Viscount explain why it is usually cheaper to buy a British made car abroad?
Viscount Goschen: My Lords, the important consideration is that direct comparisons are often difficult to make. Cross-border list price comparisons

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are frequently misleading and the situation is complicated by differences in model specifications, marketing support and credit terms.
Lord Peston: My Lords, I hear what the Minister says, but is he not puzzled by the prevalence of this phenomenon? It is extraordinarily irritating that compared with almost every other product one buys the price of a car is not quoted in terms of what it costs to buy. Does not the Minister believe that there is a degree of restrictive practice? Are not too many dealers doing this kind of thing, which suggests that, covertly at least, it is something they are doing in order to exploit the consumer?
Viscount Goschen: My Lords, these are long-established practices in the motor retail trade. The important point is that cars are subject to the same legislation on price indication as any other goods.
Lord Peston: My Lords, that is exactly my point. I was hoping that the Minister would say that the Government will réflect upon it. Car dealers are subject to the same legislation as everyone else but no one else quotes delivery charges. Perhaps I may take as an obvious example Sainsbury's. One is not told, "In addition to the prices you see, each item has three or four pence added to it for delivery charges". In respect of almost everything else we buy, the price is quoted clearly and markets depend on that in order that the consumer can behave rationally. Would not the Minister at least reflect upon what is a peculiar phenomenon and agree with my noble friend that there should be an inquiry into the matter?
Viscount Goschen: My Lords, the important point is that where a retailer chooses to show a basic price plus on-the-road charges, as long as the consumer is made properly aware of the extra charges and hence the final selling price of the car it is a commercial decision for the retailer as to how he arrives at that final price.
Lord Boardman: My Lords, are not motor dealers subject to the same rules of competition that apply elsewhere? Should not that, together with government controls, provide sufficient protection?
Viscount Goschen: My Lords, precisely. Where the consumer is already protected, as in this case, the retailer should be allowed to choose the way in which he carries out his business.
Lord Bonham-Carter: My Lords, is it not the case that during the course of these questions it has been made abundantly clear that the consumer is not sufficiently protected? Will the noble Viscount please address himself to that point?
Viscount Goschen: My Lords, no, I take issue with the noble Lord. The Government take the issue of consumer protection very seriously indeed. But neither the Government nor the Director General of Fair Trading are aware of any particular public concern about the inclusion of on-the-road charges in new car pricing.
Lord Molloy: My Lords, while acknowledging and being grateful for the points the Minister makes, ask him whether he will be kind enough to read in Hansard tomorrow the detailed submission made by my noble friend Lord Ewing. Will he ensure that British motorists get the square deal they deserve and respond to my noble friend's call for an examination of the matter?
Viscount Goschen: My Lords, we shall consider most carefully what has been said on this issue. However, the view of the Government is that the consumer is already adequately protected and that the retailer must be given the opportunity to operate his business in the way he chooses within the constraints of the consumer protection legislation.
Lord Richard: My Lords, I do not share my noble friend's view of the quality of the answers that the Minister has given. I have found them profoundly disappointing and consider that they do not give a great deal of information—
Noble Lords: Oh!
Lord Richard: Will the Minister help the House to this extent: what are on-the-road charges, what are they meant to be charges for, and who assesses what the charges are?
Viscount Goschen: My Lords, the short answer to the noble Lord's question is the market. But the position exactly is that the law—
Noble Lords: What?
Viscount Goschen: My Lords, yes. The law requires buyers to be given in writing the selling price, which indicates the basic cost of the car, and all charges for other goods and services that must be paid for in order to obtain the car. The price must include VAT but not road tax, which is not part of the purchase price.
Lord Richard: My Lords, what are on-the-road charges, please?
Viscount Goschen: My Lords, I believe that I have already fully explained what on-the-road charges are. It is, within the constraints of the consumer protection legislation, for the dealer to charge as he sees fit—
Noble Lords: For what?
Viscount Goschen: My Lords, for the car and for the additional services. Delivery charges and number plates are two of the most commonly quoted. I believe that the noble Lord the Leader of the Opposition is having a problem differentiating between the charges that must be paid to obtain the car, which, if shown separately, must be shown with equal prominence to the basic price, and optional extras such as an extended warranty.
Lord Orr-Ewing: My Lords, is the Minister aware that before the war friends of mine travelled to Dagenham and collected a baby Ford for nothing? It could be bought for £97 if one went to Dagenham to collect it; it cost £100 if delivered to your home. Is there not something wrong with the huge escalation in delivery charges that has taken place since that time?
Viscount Goschen: My Lords, essentially, two questions are at issue. The first is whether the consumer has been misled and the second is the total price to be paid in the end. If the trader has acted properly, the outstanding question is what the final bill will be and not, in those circumstances, how it is arrived at.

Sudan
2.56 p.m.
Baroness Cox Baroness Cox asked Her Majesty's Government:
What is their policy towards recent developments in Sudan.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, our prime concerns remain the civil war, the delivery of humanitarian relief supplies and human rights abuses. We shall continue to do whatever we can to help. In particular, we are supporting the peace initiative launched by the IGADD countries which has led to talks between the Government of Sudan and the SPLA factions in Nairobi.
Baroness Cox: My Lords, I thank my noble friend for that sympathetic Answer. Is she aware that in the south, despite massive humanitarian aid pouring in to Sudan, many tens of thousands of people are still dying of hunger and disease and that many areas, such as parts of the Nuba mountains, are entirely cut off from any aid as a result of the policies of the government in Khartoum? Does my noble friend agree, therefore, that the most urgent priority is to prevail upon that government in Khartoum to stop their military offensives against the people of the south and, if necessary, to raise these matters with the UN Security Council with a view to imposing arms and oil embargoes and air protection zones to protect civilians from continuing air attacks?
Baroness Chalker of Wallasey: My Lords, I share my noble friend's dismay at the number of people dying from hunger and disease. I agree that all nations must prevail upon the government in Khartoum to cease their military action. But it is also critical that the UN plan of action, for which the United Kingdom was the initiator, is allowed to provide humanitarian assistance in all parts of Sudan. There must be active measures to counter looting and a special role for the United Nations Department of Humanitarian Affairs as relief co-ordinator. We are working to achieve that. I hope that one good sign on 1st July, with a government of Sudan unified commercially-linked exchange rate, may help towards these ends.
Lord Avebury: My Lords, do the Government agree that in the draft Declaration of Principles, which was agreed at the IGADD meeting on 20th May 1994, the parties committed themselves to the proposition that a military solution to the conflict would not lead to a stable or lasting peace? In view of the fact that the government have continued to mount their military offences in the south, in some cases cutting off the humanitarian corridors which until recently allowed aid
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to be delivered to the starving people in those regions, does the Minister believe that additional pressure is required to be put on the government of Sudan? In particular, will she consider with our partners in the European Union the possibility of an arms embargo and in the meantime methods of persuading China and Iran, which are the principal arms suppliers and are fuelling this conflict, to stop the delivery of weapons?
Baroness Chalker of Wallasey: My Lords, this is a very complicated problem. It is not possible just to impose an arms or oil embargo. We have not ruled out the option of action at the Security Council. We must have unanimity in the Security Council because a failed resolution would only be to Khartoum's benefit. I assure the noble Lord that we are doing all that we can to bring about the kind of outcome that he wishes.
Lord Renton: My Lords, bearing in mind that the Sudan used to be an Anglo-Egyptian responsibility, will my noble friend say what co-operation we are now receiving from the Egyptian Government?
Baroness Chalker of Wallasey: My Lords, through-out we have received excellent co-operation from the Egyptian Government, but it would be fair to say that the Egyptians are listened to less in Khartoum than are Members of the European Union.
Lord Glenamara: My Lords, will the Minister say anything specifically about the persecution of Christians in the Sudan and in particular about the horrific reports of the crucifying of Christians?
Baroness Chalker of Wallasey: My Lords, we are deeply concerned about the persistent reports of grave human rights abuses, including those mentioned by the noble Lord. While we make it clear all the time to the Sudanese Government that those systematic abuses must cease, I believe that it is only through the United Nations Special Rapporteur that shall we gain any real progress.
Baroness Strange: My Lords, is my noble friend the Minister aware that many Sudanese still regard Britain as their protector and look up to her and that they love us? Could we not therefore give them a higher moral support internationally?
Baroness Chalker of Wallasey: My Lords, I am very well aware that we give the Sudanese high moral support. We have also given them more than £20 million worth of aid help since January. But love will not cure this problem.
Baroness Blacks tone: My Lords, will the Minister put a little more flesh on her Answer to the noble Baroness, Lady Cox, with reference to the IGADD talks which I understand will begin next week, on 18th July? What practical support are the UK Government, and, indeed, our partners in the European Union, giving to those talks? What is the current level of UK emergency aid to the people of southern Sudan, and does she consider the level of aid to be adequate in the circumstances?
Baroness Chalker of Wallasey: My Lords, I have just said that bilateral aid commitments exceeded £20 million in the first six months of the year. We shall give aid provided that we can get it to the people who desperately need it. With our European Union partners, we have provided practical support for the IGADD secretariat in Nairobi, and we shall give it all the political assistance that we can to help it to complete its task.

Land Acquisition: Department of Transport
3.2 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
On what basis the Department of Transport has spent more than £1.1 billion since 1986 on acquiring land and property purportedly for road building purposes, most of which is unlikely to be required.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, the department seeks to acquire the minimum amount of land and property consistent with the known requirements of the road programme. It is obliged under the statutory compensation code to buy property if certain criteria are met. That results in some land and property being acquired which is not ultimately needed.
Lord Stoddart of Swindon: My Lords, I thank the Minister for that Answer. But does he accept that the National Audit Office found a history of unnecessary acquisitions, waste and mismanagement by the department? Does he recognise that, as well as the losses incurred by the taxpayer, there has been much heartache, stress and, indeed, financial loss on the part of house owners whose properties have been acquired unnecessarily? Finally, why did it cost the Minister's department £4.3 million in 1992–93 to collect only £7.5 million in rental income? The most inefficient local housing authority would be a paragon of financial and managerial rectitude by those standards.
Lord Mackay of Ardbrecknish: My Lords, perhaps I should preface my answer by saying that, as the noble Lord will know, the report by the National Audit Office was published a fortnight ago and we are currently considering its recommendations. By convention, substantive comments on the findings of the National Audit Office are not made before the Public Accounts Committee has had an opportunity to take evidence from the department on that report. That evidence will be taken later in the year.
The National Audit Office's report conceded that the statutory compensation code places an obligation on the department to compensate owners by buying blighted properties regardless of the need for them. Indeed, many people wished their properties to be purchased because they did not wish to remain under the blight. It is a
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difficult problem but, as I say, we shall give our response to the Public Accounts Committee when it takes evidence on the issue later in the year.
Lord Clinton-Davis: My Lords, does the Minister not recognise the power of the indictment delivered by the National Audit Office in terms of wasteful management? Property records are incomplete. Rent arrears have burgeoned. Vacancy levels are far too high. Sales of surplus property are taking too long. And 60 per cent. of properties acquired compulsorily were found ultimately not to be needed. Why are the Minister and his colleagues so swift to condemn local authorities for offences that are far less grave and yet so slow and mealy-mouthed when it comes to recognising the ineptitude of the department?
Lord Mackay of Ardbrecknish: My Lords, the problem has been that when road schemes are being considered often a number of options are put in the frame. The NAO accepted that the department is under an obligation to deal with statutory blight and eligibility for blight claims. And yet at the end of the day of course the department will choose only one route for the road. Therefore, property will have been purchased on other routes which is not then needed.
In fact, as my right honourable friend the Secretary of State for Transport said earlier this year, we have taken steps to attempt to speed up the road programme and reach decisions more quickly as to which route should be chosen. That is what we intend to do in the future and that should mean a reduction in the number of properties covered by blight.
Lord Clinton-Davis: My Lords, but does the Minister not accept that 60 per cent. of the properties acquired were not needed? Is that not almost a record of which his department should be thoroughly ashamed? Is not an apology due?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord will know, as I explained to the noble Lord, Lord Stoddart, that the convention is that substantive comments on the findings of the NAO are not made until the Public Accounts Committee has had an opportunity to hear evidence. I do not wish to breach that convention but nor do I wish to appear unwilling to answer the noble Lord's question. Therefore, I am in something of a dilemma. However, as I said a few moments ago, we hope that our new approach to the road building programme and concentration on category 1 and category 2 projects will reduce the number of plans which at initial stages cause blight and lead to large property holdings. But it must be said also that there is an obligation on my department to minimise the distress, hardship and uncertainty of property owners affected by trunk roads. Noble Lords opposite would be critical of the department if that were not done.

Criminal Justice and Public Order Bill
3.7 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.
The Earl of Longford The Earl of Longford moved Amendment No. 145:
After Clause 140, insert the following new clause:
("Duty to provide resettlement assistance to released prisoners

.—(1) Where a released prisoner is subject to a licence, it shall be the duty of the Secretary of State to ensure that the supervision received as a condition of that licence includes advice and assistance to further the resettlement of that released prisoner.

(2) Where a short-term prisoner (within the meaning of section 33(1) (a) of the Criminal Justice Act 1993) is released unconditionally, it shall be the duty of the Secretary of State to ensure that that released prisoner receives advice and assistance to further his resettlement.

(3) In subsections (1) and (2) above, "advice and assistance" to further the resettlement of released prisoners shall include, in particular, advice and assistance in connection with finding—

(a) accommodation; and

(b) employment.").

The noble Earl said: My Lords, my amendment would have the effect of placing a statutory responsibility on the Government for the welfare of all ex-prisoners, especially in regard to employment and housing. I have spoken twice on the subject recently. I expressed my views at each stage and they were supported in principle by my noble friend Lord McIntosh and the acting leader of the Liberal Party. Indeed, the latter made some important points which may or may not be repeated today.
I have admitted that if my proposal were put into effect some considerable increase in the number of probation officers would be required. My noble friend Lord McIntosh pointed out that it would come to that in the long run because there would be a big reduction in crime if there was not only an imaginative policy for ex-prisoners but also one for resettlement as advocated by myself in the past and also by the noble Baroness, Lady Seear, on the last occasion.
However, one has to face the fact that some considerable increase in probation staff would be necessary in the immediate future. I am not expecting the noble Earl to say that the necessary money will be forthcoming and that all will be well. All I can ask of the noble Earl today—and this is not my last word on the matter because, if I am spared, I shall return to it again and again—is to give us an idea about the guidelines being issued to the probation service.
Noble Lords may or may not have it in their minds, but under the 1991 Act the probation service has a responsibility for supervising—and I repeat the word "supervising"—those ex-prisoners who have served more than a year in prison since the end of 1992. Of course, that is not a large proportion of prisoners, but it is obviously a large number of them. The question is whether the Government are ready to give some guidance to those people. Whatever the Government do
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in the way of guidance, I am bound to say that not an awful lot can be achieved if that very overworked service is not given more resources.
When I raised the matter on previous occasions, the Government were very forthcoming in describing the wonderful things that they believe are being done. However, I am afraid that they are living in a fool's paradise if they believe that is so. I know that the noble Earl is a very busy man, but if I had a few moments with him I could introduce him to a few ex-prisoners who would tell him a very different story. But, leaving that aside, I am only asking today whether the Government can throw any light on the guidelines which they are now issuing to the probation service as regards not only supervision but also the help that is being given to ex-prisoners who are seeking employment or accommodation. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I should like to support in a few words the amendment of my old noble friend Lord Longford. With high levels of unemployment, the re-employment of people who have paid a penalty, so to speak, becomes increasingly difficult whether or not they have reformed. Much work is being done in that connection. For example, I am president of an organisation called NACRO which undertakes a good deal of that work, and there are two or three other organisations carrying out similar tasks.
I should like to feel absolutely certain that the new economies which the Government are finding in almost every direction—and about which we are complaining day after day—will not extend to reducing the limited amount of help which exists at present for ex-prisoners. Some of those people will never be better; but many of them are much like us and badly need help.
The Marquess of Hertford: My Lords, I should like briefly to support the noble Earl's amendment with the simple thought that it can sometimes be very much cheaper to keep someone out of prison than to keep them incarcerated. That is putting the matter at its lowest level, which is purely financial.
Earl Ferrers: My Lords, the noble Earl's interest in the resettlement of prisoners is well known. He recently tabled an Unstarred Question on the subject and moved the same amendment last month in Committee. At that stage, my noble and learned friend Lord Fraser explained why we could not accept the amendment. I am bound to give the noble Earl the same answer today. However, I know that he did not expect me to say that it would be acceptable.
The prison and probation services already give high priority to resettlement. Preparation for release starts from the beginning of imprisonment through initiatives such as sentence planning, personal officer schemes and a range of specific programmes, including inmate development courses, pre-release courses and job clubs.
The noble Earl has often spoken highly of the resettlement establishments. I can assure him that the prison service is committed to extending the resettlement concept and is proposing to establish small units in establishments which are best placed to allow maximum advantage of work placement and closeness

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to home. After release, advice and assistance are provided by the probation service to offenders whom it supervises in the community.
Bach probation service is required to establish a local offender accommodation forum. That forum is expected to produce an area strategy for offender accommodation, to assess demand for such accommodation and the extent to which it is being met, and to arrange for homeless offenders to be referred to voluntary sector accommodation schemes in the area.
The noble Earl asked about guidance for the probation service. I can tell him that the Home Office and the Association of Chief Officers of Probation recently issued joint guidance aimed at improving the employment prospects of offenders under probation supervision. Each probation service is expected to develop an area employment policy, to identify the extent of local unemployment, how it can be addressed and the ways in which co-operation with other probation areas and other organisations should take place in order to improve the employment prospects of offenders. I shall ensure that a copy of that guidance is placed in the Library of the House.
The noble Earl may also be aware that the national standards for the probation service are currently being revised and will be circulated to a wide range of organisations for comment in the near future. A copy of that revised draft will also be placed in the Library.
As the noble Earl knows, the probation service works closely with the voluntary sector on both accommodation and employment issues through two schemes. The Home Office's probation accommodation grant scheme helps to provide supported accommodation for homeless offenders and the supervision grants scheme provides grants to support non-residential projects for those on bail and convicted offenders: many of those projects provide training and employment skills.
I hope I have made it clear that the Government share the noble Earl's anxiety about resettlement. However, I do not believe that the statutory requirement proposed is necessary or indeed appropriate.
Supervision in the community following release from custody has three main objectives. It is intended to protect the public, to prevent re-offending and to help offenders to resettle successfully in the community. Supervision needs to be adapted carefully to the individual circumstances of the offender and probation officers must be allowed to exercise their professional judgment in planning what that supervision should contain.
The amendment also seeks to impose advice and assistance on offenders who are not subject to statutory supervision. The probation rules in England and Wales already provide for advice and assistance to be given to such offenders if they so wish. In practice, voluntary supervision often means advice and assistance, again with practical difficulties, including accommodation and employment.
I hope that the noble Earl will accept that we are not poles apart on the issue. We agree about the importance of accommodation and employment. That is why both the prison and probation services are already devoting so much attention to them. But flexibility must exist to
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enable a programme of supervision in the community to be adapted to fit the individual circumstances; of the particular offender. By giving undue emphasis to one element of supervision, the amendment may well inhibit that flexibility.
The Earl of Longford: My Lords, it is only fair to say that the noble Earl made many encouraging remarks in the course of his reply. As time goes on, I can only hope, whether it be with this Government—or indeed, as is more likely, under another one—that advances will be made. At present, such fine words are not in fact mirrored by deeds, as any prisoner will tell you if you happen to have time to meet him.
However, the Minister made one comment of great importance which I am bound to say I have not fully appreciated. He said that under the idea of supervision is the idea of trying to help the offender. I do not believe that that is generally understood, but it is a most important point. I believe that I may be able to make use of that in the future. But, at the present time, I am bound to say that the probation service only receives £40 million by way of resources to assist it in helping prisoners, while the total prison service budget is. £1,400 million. All the fine words in the world, I am afraid, will not cure this problem or deal with it effectively until more resources are available. But at the moment I am grateful to the noble Earl for his concern. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 146:
After Clause 140, insert the following new clause:
("Creation of an offence of racially motivated violence
.—(1) A person shall be guilty of an offence of—

(a) racially motivated manslaughter,

(b) racially motivated grievous bodily harm,

(c) racially motivated wounding with intent,

(d) racially motivated common assault occasioning actual bodily harm, or

(e) racially motivated common assault

if, with racial motivation he commits manslaughter, grievous bodily harm, wounding with intent, assault occasioning actual bodily harm, or common assault respectively.
(2) In this section "racial motivation" shall mean motivation on the grounds of colour, race, nationality (including citizenship) or ethnic or national origins.
(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding five years in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault, assault occasioning actual bodily harm, or assault occasioning grievous bodily harm respectively.").
The noble Lord said: My Lords, I made the case for this amendment in Committee. There is a rising tide of racism in Europe. In Britain racially motivated violence is prevalent. I can do no better on Report than quote paragraph 75 of the recent report of the Home Affairs Committee on racial attacks and harassment, which states:
"In recent months there have been a number of widely-reported incidents of racially-motivated violence. In September 1993, a 17 year-old Asian youth, Quaddus Ali, was 'nearly beaten to death' in east London, and remained in a coma for a number of weeks. In June 1993 a black man was assaulted by ten white men who broke into his flat in Birmingham The Observer has reported an upsurge of racial violence in east London during the past six months, culminating in an attack in February 1994 on a 19 year-old Asian youth by 20 to 30 white men which is being treated by the police as attempted murder. There have also been racially-motivated murders, such as those of

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Stephen Lawrence and Fiaz Mirza. These violent assaults are tragic and sickening; they also fuel an atmosphere of fear and anger amongst the ethnic minority community as a whole".
The noble Earl will not dispute—I recognise that he did not do so in Committee—that racial violence is prevalent. Nor did he, or would he, dispute that it is a great evil. I paid respect yesterday, in the context of the amendments put forward concerning gypsies, to the liberal intellect and instincts of the noble Earl. The issue, however, as it emerged in our discussions in Committee, was whether society, through the law, should signal its abhorrence of racial violence by creating distinct offences of violence committed on racial grounds. The Government, through the noble Earl, argued—if I may summarise—that all violence is to be abhorred, so racially motivated violence should not constitute a distinct offence as that would be offensive to the victims of non-racially motivated violence.
I respectfully suggest that that does not begin to measure up to the gravity of the social evil we face. We are a multiracial society. We aspire to be an open and tolerant society. The justification for distinct offences is that the victim of violence is selected on grounds of race or colour. The attack is on a member, or members, of a group precisely because they belong to that group. The attack is, and must be, intended to have effects far beyond the immediate victim. It is intended to terrorise the group of which the victim of the attack is a member.
Attacks within the general community are made on the weak, on the vulnerable, on old ladies and on the disabled. There is no issue about that. Such attacks are evil and deplorable. We all agree on that. Let us therefore put that to one side. All crime is likely to be aimed at those who, to a greater or lesser extent, are perceived to be unlikely successfully to defend themselves. However, the burden of the argument in support of the amendment is that racially motivated violence is characteristically distinct. It involves a deliberate selection of victims on the basis of the accident of their birth or their colour. These offences must be gravely socially divisive. The rationale of their commission is that the victims are not entitled to equal rights or to equal citizenship; that they deserve lesser, violent treatment; that they should be pushed to the margins of society.
The point of principle with which I am happy to engage is that racially motivated violence is distinctly identifiable and socially corrosive. It is in a class of its own. The noble Earl, in Committee, said:
"If, for example, a black person and a white person were to be victims of similar assaults I would question whether it would be right or even equitable for the assailant of the white person to get a lesser sentence simply because his victim was a white person and not a black person".
The noble Earl will forgive me if, having paid tribute to his liberal instincts, I say that I was disappointed when I heard him say that and disappointed when I read it set out for all to read hereafter in Hansard. With respect I would suggest to him that he misses the key point. A white man may attack a black man, or a black man may attack a white man, without any racial motivation whatever in either case. The courts will then
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impose whatever penalty fits the crime in the circumstances of either case. But if both attacks were racially motivated, then the offences are characteristic-ally different because the victim in each case became a target for the reason of his race or colour. Nothing could be more destructive of the principles of a multiracial, plural society and the values of a liberal democracy.
The whole of our law on discrimination is based on a recognition that particular groups require special protection because of their race, their colour or their gender. The purpose of our anti-discrimination laws, which no one calls in question, is not to confer special privileges on particular groups but to ensure that those groups most in need of protection by the law receive that protection. The purpose is to ensure that they enjoy equality of legal protection. In setting themselves against these amendments—I invite the noble Earl to think again —the Government reject the advice of the Home Affairs Select Committee, the Council of Churches, the Board of Deputies of British Jews, the Commission for Racial Equality, the Law Society, the Bar Council and other bodies. Their voices have been powerfully reinforced by the recent observations, reported in The Voice, of the Metropolitan Police Commissioner Sir Paul Condon. It is really difficult to think of a more eminent and authoritative voice which the Government should heed.
The Metropolitan Police Commissioner said that the introduction of new laws to make racial violence and harassment specific criminal offences would "help rather than hinder". He added:
"It is a very important symbolic thing to do. It is society saying we will not tolerate racial harassment. We condemn it to the point that we have created a new piece of legislation".
I have to say, would that the Government were equally aware. Will the noble Earl not listen to the most senior police officer in our country?
Finally, I move from the issue of principle to the one other practical objection to the constitution of such new offences: the alleged difficulties of proving racial motivation. The law is perfectly familiar with the task of ascertaining intention or motivation. All offences in our law, other than offences of strict responsibility, require the court or the jury to determine whether the necessary mental element is present. That is what many, and probably most, criminal trials are ultimately concerned with.
These new offences would be charged only when the prosecuting authorities thought that there was a better than evens prospect of conviction, namely, where the evidence of racial motivation is cogent. I have no doubt that a jury is well capable of convicting of ordinary manslaughter and acquitting of racially motivated manslaughter if the racial motivation is not proved beyond reasonable doubt to the satisfaction of the jury. To argue the contrary betrays a lack of confidence in the jury system and a lack of confidence in the sound common sense of the British jury which serves our country so well.
I said yesterday, as I have already said, that in many areas I respect the noble Earl's liberalism. But I desire

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now to call the attention of the House to the recent report of the Home Affairs Select Committee, and in particular to paragraphs 82 and 83. Paragraph 82 reads:
"Believing as we do that racially motivated violence is growing, that more positive action must be taken to stop it and that such motivation, provided that it is properly proved, should lead to an increased sentence, we recommend the creation of a new offence of racially motivated violence. We further recommend:

(i) that whenever there is a count or charge of violent assault and there is sufficient evidence that the violence was occasioned on the grounds of colour, race, nationality, or ethnic or national origins, a separate count should be added to the indictment and the jury or magistrates should be invited to decide on the alternative: which offence, common assault, actual bodily harm, wounding with intent, grievous bodily harm or manslaughter, or racially motivated common assault, actual bodily harm, wounding with intent, grievous bodily harm or manslaughter, if any, has been made out;

(ii) that if the offence of racial violence is proved an additional and consecutive sentence should be imposed on the offender of up to five years' imprisonment for the racial element in that offence".

Paragraph 83 reads:
"In order to effect this recommendation a majority of us tabled a new clause to the Criminal Justice and Public Order Bill during its Report stage. In debate the Minister, Mr. Lloyd, deployed the same arguments against a new offence of racial violence as he had during his earlier oral evidence. On a Division the new clause was defeated by 283 votes to 254".
In the other place that was obviously a tight vote. The paragraph continues:
"Nevertheless we recommend that the Government should reconsider its opposition to an offence of racially motivated violence. We further recommend that such an offence be introduced as an amendment to the Criminal Justice and Public Order Bill".
I, for my part, would endorse that recommendation. I respectfully submit that this is an issue on which, having regard to the tight vote in the other place, this House could properly resolve to give a lead. Many other people and many organisations are of that view. I beg to move.
3.30 p.m.
Noble Lords: My Lords—
Noble Lords: Lord Boyd-Carpenter!
Earl Ferrers: My Lords, perhaps I may intervene. It may be easier if we hear one noble Lord at a time. I am sure that there will be time for all three noble Lords to speak, but if all three stand their ground vociferously saying "My Lords" we shall never get anywhere. I propose, at your Lordships' suggestion, that my noble friend Lord Boyd-Carpenter should speak and then my noble friend Lord Campbell. Perhaps we could then move on.
Lord Boyd-Carpenter: My Lords, I am obliged to my noble friend. I shall not detain your Lordships for more than a few moments.
I believe that all Members of the House understand the feelings which lie behind the amendment and sympathise with the sentiments of the noble Lord who has just spoken. However, it does not follow that it is conclusive that this House should, as he recommends, reverse the decision of another place. Nor does the amendment necessarily deal with the full merits of the matter.
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This is a rather peculiar proposal. It is proposed that where racial motivation is demonstrated in a particular case in which there are other, perhaps several other, serious charges, an additional sentence over and above that earned for the basic offence shall be imposed. That would introduce a complicated provision into our sentencing system.
Suppose that the court dealing with the matter feels that a sentence of x years is appropriate. Then, if it finds separately that there is racial motivation, as I understand the amendment, a maximum of five years is automatically added to what was otherwise thought to be the appropriate sentence. That seems to undermine to a considerable extent the discretionary position of the court which is dealing with the matter. Those of us who have had some experience of these matters know how difficult it is to decide on an appropriate sentence. There are a great many different factors which the judge has to take into account and it is far from easy to decide on an appropriate sentence. If one then introduces an automatic addition for a separate aspect of the matter one will make the job of sentencing one of great difficulty.
Lord Irvine of Lairg: My Lords, I am grateful to the noble Lord for giving way so that I may clarify the position. The noble Lord assumes that the maximum sentence available to the court under the amendment would reflect the sentence imposed by the court. I invite him to look at the proposed new clause, and in particular subsection (3), which reads:
"A person guilty of an offence under this section is liable"— I emphasise the word "liable"—
"on conviction on indictment to imprisonment for a term not exceeding five years"—
what he receives up to that maximum is entirely a matter for the judge—
"in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault",
and so on.
Therefore, there is a liability to a maximum sentence. The judge has discretion and the additional sentence could be as little as a day. Does the noble Lord not appreciate that?
Lord Boyd-Carpenter: My Lords, I do not think that the noble Lord and I differ greatly on this issue. I believe that he accepts, as I indicated to the House, that a judge trying a case where there is an allegation of racism will first have to decide on the appropriate penalty for that particular offence, and would then find that there was imposed the possibility of automatically adding up to five years to that sentence. That appears to introduce awkwardness and difficulty into the whole sentencing procedure. Obviously, when a judge tries such a case, if there is a racial element the judge will undoubtedly bear that in mind as he will all the circumstances of the case including the degree of violence, the degree of provocation and all the other factors. But to impose this additional factor, having decided on a sentence which is appropriate for the offence, surely is to make a nonsense of our sentencing system. It was no doubt for that reason that another place, in my view very properly, rejected the proposal.
Lord Campbell of Alloway: My Lords, I accept, of course, without qualification the interpretation of the amendment by the noble Lord, Lord Irvine of Lairg. I disagree with my noble friend Lord Boyd-Carpenter that it is wrong for an additional sentence to be imposed. However, the amendment, although well intended and in a sense well supported by bodies outside your Lordships' House, is not well conceived. I oppose it.
I do not believe that any emotive speech on such a serious situation, with deplorable examples, serves any purpose in helping your Lordships to find the appropriate resolution. I wish to be brief and to speak in terms of principle. First, as I see it—it is only a personal opinion—I believe that it is wrong in principle to create a racially motivated offence. As I see it, that is a matter to be taken into account in sentencing, an aggravation giving rise to an additional sentence, and, according to extant practice, specified as such certainly by the recorders and, I think, by the judges. If the extant practice stemmed from the sentencing of Mr. Justice Salmon (as he then was) in the Notting Hill case at the Old Bailey, in which he imposed deterrent sentences, so be it. That is the right way in which to approach the problem. I accept that there are two ways. But that, I suggest, is the right way. Those sentences and the precedent which arose from them had a most salutary effect.
Considering the amendment—I do not deal with details—one does not surely have to reach for a dictionary or fumble through a statute to define racial motivation. Every magistrate, every judge, every one of your Lordships, everybody in the country knows what it is. We all know what it is. It is utterly abhorrent. And surely there is no need to define a limit to the duration of the additional sentence in aggravation of the offence. It is a matter for the judiciary.
Surely, in a multiracial society, where we are all subjects of the Queen, it is wholly inappropriate to create two classes of offences: one, the offence on the statute book; the other, where it is racially motivated. Let us be practical for a moment and not idealistic. That could well have a most undesirable backlash consequence, envisaged by the right reverend Prelate the Bishop of St. Albans, albeit in another context some time ago. If the racially motivated offence were charged, and if the accused, as he may, is prepared formally to admit that he committed the offence but not with racial motivation, what happens? He pleads not guilty. The trial then proceeds on the issue of racial motivation in our country. May the good Lord preserve us from such an unacceptable and potentially volatile situation. Surely, that is no way in which to signal our abhorrence of racially motivated violence.
Lord Avebury: My Lords, in cases where there is doubt as to whether racial motivation is involved, both charges would be preferred against the defendant. If the proof is not forthcoming that racial motivation was involved, the prosecution would fall back on the ordinary charge of murder or manslaughter as the case may be.
Lord Campbell of Alloway: My Lords, with respect to the noble Lord I am afraid that my experience leads
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me to differ from him. I do not wish to take up the time of the House. The noble Lord may be right, but I do not believe that he is.
Finally, perhaps I may say this. The analogy with racial discrimination is far too far fetched to be credible. For those reasons, I oppose the amendment.
3.45 p.m.
Lord Beloff: My Lords, although a non-lawyer, I venture to enter on this dangerous field to explain why, with some reluctance, I have come round to the view that the creation of this new offence, as proposed by the noble Lord, Lord Irvine, is desirable.
In the course of the past few days I have been attending an international academic conference on the rise of racial violence, and its accompanying propaganda, not merely in this country but in the United States and in much of Europe. It is, I think, clear that we cannot dissociate the local circumstances, referred to in the report of the committee of another place, and, alas, well known to us from the press, from what is going on in other countries. A great deal of propaganda is being fed to our young, partly from American sources where the expression of such sentiments is protected by the first amendment to the American constitution, but also from Europe. Our young people are being asked to repudiate views which most of us held at the end of the last war: that the defeat of Nazism had put an end to one form of human depravity, and for good. We can no longer take that for granted. Therefore, whatever the technical problems that lawyers may find in respect of sentencing, the mere absence of such a provision from the statute book could be regarded as acquiescence in the normality (I put it no higher) of the expression of views which lead to, and indeed encourage, racial violence.
I regret that it does not include violence against minorities singled out for religious reasons, although I understand that an amendment which will be before your Lordships later deals with that point. But we members of the Jewish community realise that in this our faith is bound up with that of other minorities, even if they are referred to as "ethnic" rather than religious.
One of the moving stories which came from a member of the conference, who represents an important ethnic minority in the borough of Hackney, related to an attack by three youths upon a Jewish schoolboy in Stoke Newington. He was, no doubt, easily recognisable by his dress. He was rescued from serious bodily harm by the fortunate presence of a rather large young black man from whom the three white thugs rapidly retreated.
It should not be necessary for that to happen on our streets and I and, I am sure, the noble Lord, Lord Irvine, would not pretend that merely putting something on the statute book will be enough to prevent it. Nevertheless, a committee of another place looked into the matter in great detail. If it believes—as some of us also believe —that there would at any rate now be a marker, a declaration, that in this country the repudiation of racial prejudice leading to physical violence is a part of our statute law as well as of our national ethos, it will have been well worth the House accepting the noble Lord's amendment, as I dearly hope it will.
Baroness Seear: My Lords, like the noble Lord, Lord Beloff, I had doubts about the racially motivated attack some months ago. In fact, on a television programme I said that I had my doubts because I thought that it might lead to cases being lost on the grounds that one could not prove the racial motivation and therefore the whole case would fall.
However, like the noble Lord, Lord Beloff, I have changed my mind. It was made clear to me—I know that the noble Lord, Lord Campbell, questions this—that if a racially motivated attack were being tried and there were doubts about the racial motivation, nevertheless the case could be won for the bodily harm or whatever it was which was associated with the racial discrimination. So one avoids the obviously undesirable situation in which what was a racially motivated attack led to harm but the offender got off because the racial motivation had not been proved. I understand that that is how the law stands at present but one can get a conviction. That is why I am doubtful about the amendment.
However, as the noble Lord, Lord Beloff, said, we have to put down a marker. The increase in racial attacks over the past year is well documented and extremely alarming, in view of what is going on in continental Europe. We are a part of continental Europe, whether or not some Members of the House like it. The evil doctrines which are spreading fast in other countries are also evident here.
I make a special plea that the amendment should be passed today. Since it has reached the Marshalled List and is before the House, it would be sad if it went out that the House of Lords had voted against making a special offence of racially motivated violence. It would be a marker that I am sure none of us would want to put up. And it would be put up if the amendment were defeated. Even if the amendment would be difficult to implement, as many of us recognise, it is important symbolically at this time, when the dangers are becoming more and more apparent, that we show where we stand on this vital matter.
Lord Ackner: My Lords, I respectfully submit that it would be wrong for your Lordships to think that the amendment proposed will make the life of the sentencer any more difficult than it is at the moment. The judge has to decide what is the right sentence for the crime or crimes which have been committed. It is proposed that the judge reaches his decision on the basis of the particular act of violence or crime of violence without taking into account, if it can be established, the racial motivation. For example, let that sentence be 18 months. The judge is then satisfied that the serious aggravating factor of racial motivation has been established. He adds to that sentence of 18 months such further sentence as he thinks appropriate, up to a maximum of five years. Having had considerable experience in sentencing from recordership upwards and having presided over sentencing conferences for many years, I should have thought that this was one of the least of the problems.
Without the amendment, and given racial harassment, the judge has to go through that process anyhow.
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The only difference is that the accused has a better right of appeal, if he is minded to exercise it, because he can point out to the Court of Appeal, Criminal Division, "My seven years was made up of two years for the ordinary assault and five years for the racial motivation. The five years is excessive and therefore it should be reduced". The division, in my respectful submission, causes no complication at all.
Taking up a point made by the noble Lord, Lord Campbell, if the accused says that he is prepared to plead guilty to an assault but not to a racially motivated assault, then there is a trial. Again, then; is no complication about that. The issue will be the motive with which he committed the crime of violence. At present, if he pleads guilty to the crime of violence and the prosecution says, "A major aggravating factor in this crime was the racial motivation", and the defence says, "Nonsense. We don't accept that for one moment", that issue has to be determined not by a judge and jury, which is the most satisfactory process but, since he has pleaded guilty, by the judge alone. It proceeds just like any other trial on the basis of the prosecution calling the witnesses to support the allegation of racial motivation. The defence has to produce its evidence, no doubt in particular the evidence of the accused person. Then the judge has to determine the point.
So there is no sentencing problem at: all. That seems to me to enable your Lordships to proceed on the basis of the extent to which noble Lords are persuaded by what appears to be a strong body of outside opinion wishing to emphasise that this type of behaviour must be highlighted and treated as being particularly evil.
4 p.m.
Lord Renton: My Lords, so far I do not think that we have fully addressed ourselves to the present burden of proof upon the prosecution. In our criminal law the prosecution has to prove that the offence was committed with a criminal intent. It does not have to prove motive, although those of us who have been involved in the administration of the criminal law know that there nearly always is a motive of one kind or another. In Northern Ireland, alas, there is very often a political motive—
Lord Hailsham of Saint Marylebone: Or a religious one.
Lord Renton: Or a religious one, as my noble and learned friend says. Alas, sometimes there is; a commercial motive.
To introduce a requirement that the prosecution, in addition to proving the fact of the offence and the intent of it, also has to prove motive adds to the burden upon the prosecution. And paradoxically, as the noble Lord, Lord Irvine of Lairg, may notice, that would lead to a number of acquittals which you would not expect.
The noble and learned Lord, Lord Ackner, confined his remarks to the question of sentence. We do not need the creation of the new offence in order to enable the court to consider the motive when sentencing the accused. Indeed, there is another amendment on the Marshalled List, Amendment No. 146B. I do not wish to prejudice any noble Lord's mind in advance of

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consideration of that amendment, much less my own, but if we are to have that written into the law it would be done much better in my opinion by Amendment No. 146B. With deep respect to the purpose of the noble Lord, Lord Irvine, with which I believe all noble Lords agree, by the agreement of all parties we have our anti-discrimination legislation. With the help of the law we have tried to protect the various races who are now part of our country. But I really do fear that if the noble Lord's amendment were to be passed it would be self-defeating.
Lord Monson: My Lords, the noble Earl, Lord Ferrers, was quite right to resist this amendment the last time round. I hope that he will stick to his guns on this occasion. The noble Lord, Lord Irvine of Lairg, cited some terrible examples of attacks upon individuals who happen to be members of racial minorities. But if and when the perpetrators are caught, very severe sentences are already available to the courts, and quite rightly so. So far as I am aware, no member of the judiciary has complained that the present maximum penalties are inadequate. Surely the important thing is to catch the perpetrators. Unless they are caught, no sentence of any sort can be imposed. If the tightly knit communities, from which the perpetrators tend to come, feel, rightly or wrongly, that the law has been slanted in favour of the incomers, as it were, they will be much less likely to shop the perpetrators to the police than would otherwise be the case.
The Earl of Onslow: My Lords, the noble Baroness, Lady Seear, has brought me to my feet, and not for the first time. I suddenly imagine myself rather drunk in a public house, aged 20.I come out of that public house; I see the noble Baroness, Lady Seear; and I suddenly have a passionate hatred of Liberal Peeresses. So I go and thump the noble Baroness, Lady Seear. I believe that everyone would regard that as a crime of the utmost heinousness for which I should be dealt the most serious possible sentence. Alternatively, I come out and I thump (this is 20 years ago) an 18 year-old black man and I say: "I hate black men". That would be rightly regarded as heinous. But I suggest to noble Lords that it is no less and no more heinous, and is if anything less heinous, than thumping the noble Baroness, Lady Seear. Surely it is whom you thump and under what circumstances, irrespective of the colour of their skin, that matters. That is what should motivate the issue.
I do not in any way stand in protection of anyone who wants to thump someone else. It is an unattractive habit. It is especially unattractive to thump people because of their colour or religion, or if it is the noble Baroness, Lady Seear. But it is better to leave out that extra motivation, because I want the noble Baroness, Lady Seear, to be treated with greater respect than 18 year-olds, whatever the colour of their skin.
Baroness Seear: My Lords, I know that this is Report stage and I am therefore not supposed to reply. I think, however, that I would have been able to deal with that matter myself. Perhaps I may make a more serious point. In attacking me or any woman Peer, you
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would not be attacking—at least, I think not—a whole community. When you attack a black person you are seen as attacking the whole black community. That is a very important difference.
Lord Renfrew of Kaimsthorn: My Lords, I support the noble Lord, Lord Irvine, in this matter. In earlier discussions my noble friend the Minister made the point —he made it very effectively in introducing Clause 141 on harassment, alarm or distress—that in an ideal world we would not be highlighting racial distinctions. Violence is violence; it is to be abhorred in any circumstances. To some extent that was the point my noble friend Lord Onslow was making. Indeed, it was a point made by the most reverend Primate the Archbishop of York on Thursday, 16th June when he said:
"What we want is a society in which race does not matter, a racially blind society".—[Official Report, 16/6/94; col. 1923.]
The society we have is a very long way from the one to which the most reverend Primate would aspire. In my own view—and I take the point the noble Baroness, Lady Seear, made a moment ago—it is the circumstance that matters. There is a whole series of racial offences that are committed, and many of them are committed in what can only be described as an organised way.
It would be unusual indeed if there were a conspiracy of Peers to assault Liberal Baronesses, just as in the same way —and I do not want to be frivolous about these matters—it would be unusual if there were a conspiracy to assault persons in wheelchairs because they are in wheelchairs; or even a conspiracy to assault old ladies and rob them of their handbags because they are old ladies. Such offences of violence occur because they are easy to pull off, easy to perpetrate. The unpleasant offences of racial motivation that we are now discussing are of a different nature. The point was made by the noble Lord, Lord Irvine, but it is one that I do not believe was fully taken by my noble friend or by the most reverend Primate. We are talking about offences which arise from a coherent philosophy—an obnoxious philosophy—directed towards a group of people in our society, not just towards vulnerable individuals who happen to pass by.
My noble friend Lord Renton mentioned—I should like to draw attention to this procedural point—that following this amendment there will be Amendment No. 146B✶, which is on the offence of selling confidential financial information. Then we shall return to Amendment No. 146B with its rubric,
"Racial motivation to be an aggravating factor in sentencing".
That is the point the noble Lord, Lord Renton, was making. I do not wish to speak to that amendment now. We shall have the opportunity of doing so later. I simply want to draw your Lordships' attention to the fact that our debate on this series of matters will be interrupted, for procedural reasons of some complication, by a very different matter. I would not want noble Lords to feel that, in the unfortunate circumstance that the present amendment should be lost on Division, the entire issue has gone by the board for the day. However, I am happy to support this amendment. It relates to a matter of

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paramount importance and shows that we in this House and in this Parliament recognise the serious state to which we have come. I support the amendment warmly.
Lord Hailsham of Saint Marylebone: My Lords, I wonder if I may say a fairly brief word. I believe that the amendment is fatally flawed intellectually. I do not think that there is any difference among Members of the House about the vile nature of inter-communal hatred and motivation. But the definition of crimes is normally, should usually be, and might universally be, confined to two different elements. There is what you do and there is the intention with which you do it. Intention is not the same as motive. It is very important to realise how different the two are. The intention is part of the definition of the crime. The motive is usually something outside the definition which is uniquely relevant to sentence when it has been discovered.
I deplore racial or communal motivation of any kind as much as any Member of this House. But I do not think that it is uniquely horrible. I believe that there are other crimes which are every bit as bad as racially motivated ones. For instance, there are religiously motivated crimes. I can remember very clearly when I was a Member of another place and one of the discrimination Bills was under discussion that I tried to add discrimination on grounds of religion to the racial discrimination which was then under discussion. I was ruled out of order by the chairman, who said that it was outside the scope of the Bill. I pointed out that, if I wanted to discriminate against members of the Jewish religion, one could very easily do something about bacon without attacking the race at all.
The fact is that all forms of cultural discrimination are equally bad. This morning's paper carried the news of a Protestant who had been murdered by a Catholic in Northern Ireland. The crime was not racially motivated because they were members of the same ethnic community and the same national community. Equally, it was committed in revenge for an earlier murder of a Roman Catholic by a Protestant. I have known cases of people convicted of wounding with intent—for instance, in the course of a rape of a very small child by a sexually motivated man, or in the course of violence against a young woman for refusing her sexual favours. I regard that as every bit as bad as doing violence because the perpetrators hate people of a particular colour. It may be less or more rational, whichever way one looks at it. On the other hand, the crimes are serious.
I agree with an observation that came from my noble friend Lord Renton, who said that if this amendment were to be passed, it would erect an extra barrier against conviction because the motivation has to be proved beyond reasonable doubt to be one of the motives described in subsection (2) of the proposed amendment; and that would lead to a number of unjustified acquittals. You may say, as was said by the noble Lord, Lord Irvine of Lairg, that you do not trust the jury system. I do not trust juries always to convict when they ought to do so. I have known too many perverse acquittals in my life. If the House passes this amendment, it will in fact erect another barrier against conviction for racially motivated crime.
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The truth is that motivation is a relevant factor in sentence. That was recognised by my noble and learned friend Lord Ackner, although I thought that thereafter he addressed the wrong point. During the course of a prosecution, words would be used to describe the motivation of the crime, which might be a more or less serious physical assault—a wounding with intent or manslaughter at the top of the scale and common assault at the bottom of the scale. There would be the evidence which the prosecution would be bound to lead and it would be in the mind of any right-minded judge whom I have ever known an aggravating offence which would add to the sentence employed after the jury had given the inevitable verdict. No chance would be given to cop out. There would be a number of disagreements and perverse acquittals, no doubt. There always are in such cases. But the judge would have in front of him the evidence on which to assess the gravity of a particular offence and, if he were a right-minded judge, it would be an aggravating factor that the offence had in it an element of motivation on racial or communal grounds.
I cannot forget the words, of the Pope when he went to Drogheda in the Republic of Ireland. He administered the Eucharist to over 1 million persons and in the course of that service he said: "Murder is murder is murder". That was meant to condemn murders of Protestants by Catholics or of Catholics by Protestants or of Jews by Christians or of Moslems by Jews or vice versa. It was meant to condemn murder as such. In my book, wounding with intent is wounding with intent and the motivation is a matter for sentence and degree in which the function of the judiciary is involved, as distinct from the function of the jury.
That is a fault which is absolutely fundamental to the amendment. It confuses definition with culpability.
4.15 p.m.
Lord Jakobovits: My Lords, after the last contribution to our debate I rise with particular reluctance because I hate to cross swords with so esteemed a friend, and in many ways a mentor, as the noble and learned Lord, Lord Hailsham. But I am afraid that I am far from agreeing that the arguments are flawed, as he claimed. One of the arguments which have not so far been emphasised sufficiently is that not only is the heinousness of the offence in a special category and not only has the offence perhaps wreaked more havoc in human history, especially modem human history, than any other single offence, but over and above the difference in degree, it is different in kind from other offences of violence.
First, it is based on a denial of human equality. Murder is not normally based on that. To say that there are human beings who are not created in the image of God and who are no longer entitled equally with ourselves because they have been born with a different label, is a kind of offence that drives a wedge into humanity that cannot be tolerated.
Moreover, we know from recent experience that racially motivated violence has effects different from those of any other form of violence. I lived in Germany when Hitler came to power and was among those who suffered racial discrimination and the constant threat of

1659
violence. Hitler used racial discrimination to climb to power. It was the basest instincts to which he appealed. He could not have done it through any other crime. As a result, millions of Germans—a decent people, an intelligent and highly civilised people—were turned into mass murderers, either perpetrating or conniving in mass murder. No other crime could have achieved that. No other offence could have caught on and infected an entire nation with such indescribable consequences; only the offence of degrading human beings by arguing that some are worth more than others could do that. Some, such as the Teutonic race, have to be protected at all costs; others, such as Jews and gypsies, can be shoved into the oven.
Lord Hailsham of Saint Marylebone: My Lords, perhaps I may say, if the noble Lord will allow me, that for political reasons Stalin did the same thing against classes of people.
Lord Jakobovits: My Lords, that is quite true and I can use the same argument to condemn him. However, he did not do it because people were born under a certain star or under a certain label; he did it because they had ideas that he opposed and he was frightened that if those ideas caught on it would mean his downfall. Therefore he had some rational argument, whereas racial discrimination and violence has no reason whatever. It is a prejudice that is implanted by propaganda and can lead to the most dangerous consequences.
I am therefore delighted that the amendment was moved with such force and supported with such irrepressible logic as we witnessed here this afternoon. If we strike a blow at one of the major evils of modern society, which is the evil of degrading whole groups of human beings because they are born differently from others, then we shall forever be looked up to as having contributed to a better society and a safer world.
Lord Lowry: My Lords, no one could challenge the purity of the motive behind the amendment. Nearly everybody must feel a temptation to be associated with a mark of strong disapprobation of racialism. Cogent points have been made on either side. My real difficulty with the amendment is this. The amendment contains a list of offences and the proposal is that a certain motivation should make those offences more serious in a formal way by proposing an addition to the sentence. I ask myself what other motivations there may be. There are many in number that one could add to racialism.
Let us say that racism or several other motivations are the trigger of a crime. There must be several other offences besides those listed in the amendment that we should like to include under the same principle. Because I foresee the most enormous difficulty in drawing up the list of offences and the motivations which should be matched to some of them, I revert to what has been the tradition. An offence is committed; guilt is either admitted or proved; the judge must then take into account the circumstances of the offence —including, in many cases, the motivation—and impose an appropriate sentence. If there are offences—they have been discovered from time to time—where the statutory
1660
punishment is considered too light, then a proposal is made and sometimes adopted to increase the maximum penalty. I am not talking about that now; that is an extension of the subject. But that explains my difficulty in accepting an otherwise laudable proposal.
Earl Ferrers: My Lords, we all listened with considerable interest to the intervention of the noble Lord, Lord Jakobovits, when he drew attention to the terrible problems that racial discrimination and motivation can bring. We all know what the noble Lord, Lord Irvine of Lairg, intends by the amendment, and we all respect it. I agree with my noble and learned friend Lord Hailsham that there is no difference between any of us in the House in relation to the vileness of racially motivated offences. It is that matter which the amendment tries to address.
This is the third time on which this amendment has been debated. It was debated in another place and then in Committee in your Lordships' House and now again. The noble Lord, Lord Irvine of Lairg, is persistent if nothing else—and he is a lot else. The Government's position on the amendment has been made clear and I can assure the noble Lord, Lord Monson, that I shall not change my view on that. The noble Lord, Lord Irvine, repeated his amendment and I hope therefore that your Lordships will forgive me if I repeat some of the arguments I put forward at Committee.
Racial motivation can be and often is taken into account by the judge as a seriously aggravating factor. That is the point which the noble and learned Lord, Lord Lowry, was making and indeed the noble and learned Lord, Lord Ackner. At Committee I cited the case of Fiaz Mirza, to which the noble Lord, Lord Irvine, today referred. He was an Asian taxi driver who was murdered by two white passengers. The two murderers received life with a recommendation to serve 22 years, which your Lordships will recognise as a very heavy punishment. The judge rightly recognised the appalling circumstances of that specific case in delivering his sentence.
All violent offences are deplorable and all should be severely punished. But I suggest that it would be inequitable to single out crimes where racial motivation is proved for a specific and greater penalty. I am sure that many victims of assaults which were not racial in nature would find it a difficult concept to accept. At Committee I gave an example which the noble Lord, Lord Irvine, said he found disappointing when I gave it and even more disappointing when he read it. As he reminded us, I gave the example of a black person and a white person who were both knifed. I questioned whether it would be right or even equitable for the assailant of the white person to receive a lesser sentence simply because his motivation was not racial even though the effect of the knifing on the victim was physically identical and just as traumatic. I agree with my noble friend Lord Onslow when he said that he felt that it was the offence which was perpetrated rather than the person against whom the offence was committed which was the important point.
The amendment refers to racially motivated manslaughter, racially motivated grievous bodily harm,

1661
racially motivated wounding with intent, and so forth. The amendment ascribes a mental element in all those cases, and I agree with my noble friend Lord Renton that if motivation in a case must be proved, the burden on the prosecution is increased. As my noble and learned friend Lord Hailsham said, it is putting up an extra barrier against conviction and might result in some acquittals where there should be convictions.
There is a world of difference between intent which relates to the desired outcome of the act and motivation which concerns why a person intended to produce that effect. Intent is a matter of daily concern in criminal trials. Motivation would be a new and entirely different element for a court to prove and of which courts have no experience. At Committee I remember saying that a woman may be found dead and her husband found with a knife. It may be proved that the husband murdered the wife. It may be obvious that he intended to kill the woman. Much more difficult to discover is what the motivation was for the killing—whether it was because they had had a row; because she had run off with his money; or because he wanted her insurance policies. The motivation is far more difficult to prove, and that is what the amendment asks the court to include.
The noble Lord also said that a separate offence would be needed because racial attacks are made on members of a group and are intended to affect all members of the group. The noble Baroness, Lady Seear, made the same point, as did my noble friend Lord Renfrew. He said that such attacks were the result of a coherent philosophy against a group of people. That may be so. But we do not need to restrict that to racial attacks. Attacks are made on other people who are being targeted, and groups of people are subject to those attacks putting all members of the group in fear. For example, attacks on women, attacks on homosexuals, attacks on people who are part of a protection racket and attacks on people who are part of a drug baron's empire.
The noble Lord, Lord Irvine, then said that the commissioner of the Metropolitan Police, Mr. Condon, supported this new offence and he asked why the Government do not listen to eminent policemen. The commissioner of the Metropolitan Police is a very eminent policeman and I respect his views; but those views are not shared by the Association of Chief Police Officers, which does not believe that a separate offence is either workable or desirable.
My noble friend Lord Beloff said that support for the amendment was misguided and that we already have an offence of incitement to racial hatred which deals with the expression of Nazi ideas. The amendment of the noble Lord, Lord Irvine, does not deal with propaganda. The Home Affairs Select Committee's report was not unanimous on the need for a racial violence offence. At least four members of the committee opposed it. I would merely stress what I said in Committee. The law provides for a range of penalties and it sets the maximum which can be allowed for any one type of crime. In this kind of case the maximum allowed could well be reached by the fact that the assailant had been racially motivated in his crime. But we do not need more than that.
1662
Not only do I suggest that the new clause would be wrong in principle but it would have curious results. In the case of common assault the offender would face a prison sentence which, if his offence were shown to be racially motivated, could be 10 times greater than is the current maximum penalty for any other form of motivation. For actual bodily harm the sentence could be doubled. I am sure that all noble Lords would agree that those who commit these vicious and abhorrent crimes should be properly punished. The way to achieve that is to make sure that at every stage of the process racial motivation is flagged up, evidence is collected and evidence is put before the courts so that it can then be taken into account as an aggravating factor for sentencing. I suggest to your Lordships that: it would be wrong in principle to legislate in such a way as to create a separate class of violent crime of racial motivation which is worse than all other types, as the clause attempts to do. All classes of violent crime, whatever the motivation, are wrong and are to be condemned. But I think it would be wrong to make it a worse offence to commit a crime just because of the person's race than it would be if the person was a homosexual, an elderly person or a disabled person.
I agree with the forceful argument of the noble and learned Lord, Lord Ackner, who said that he found the amendment unacceptable. He said that in his experience there was no sentencing difficulty over this matter. I agree with him and I hope that your Lordships will not agree to the inclusion of the amendment in the; Bill.
4.30 p.m.
Lord Irvine of Lairg: My Lords, I am encouraged in the strength of the case for the amendment by the support I have received for it from many quarters of the House and, if I may say so, by the weakness of the arguments which have been addressed against it. First, I welcome the support of those who have spoken specifically in its favour. I mention the noble Baroness, Lady Seear. The noble Earl, Lord Onslow, has indicated his enthusiasm on occasions over many years for thumping the noble Baroness. I would simply observe that if the noble Earl were to engage in such a contest it would be very unequal and one in which the thumping in the opposite direction would be likely to exceed that which the law of reasonable self-defence permits. I welcome in particular the informed and eloquent support of the noble Lord, Lord Beloff, the noble Lord, Lord Jakobovits, the noble Lord, Lord Renfrew, and the noble Baroness, Lady Seear.
An early contribution to the debate came from the noble Lord, Lord Boyd-Carpenter. We will not, if we give a signal to the other place by voting in favour of the amendment, be reversing the decision of the other place, as the noble Lord suggested. We will be making a proposal or a suggestion to the other place and we will be giving the moral support of the considered opinion of this House to that very large number of Members of the other place who, before the report of the Home Affairs Select Committee coming down in favour of this offence, were in favour of it. It is not the case, as I sought to demonstrate when intervening in his speech —the noble Lord permitted me to do so—that another

1663
automatic block of sentence will be added if the racially motivated offence is proved. That is to confuse the maximum available with the discretion of the judge. The racially motivated offence will have to be proved beyond reasonable doubt to the satisfaction of the jury.
Lord Boyd-Carpenter: My Lords, perhaps I may intervene as the noble Lord referred to me. I made the point—and I stick to it—that we should be reversing the considered decision of another place. We are perfectly entitled to do that but the noble Lord cannot get away from it by saying, "Oh well, there is just a slight difference of opinion". We should be reversing the considered decision of another place.
Lord Irvine of Lairg: My Lords, I do not desire to engage in semantics. It would be right, however, to say that we would be reversing it if our decision automatically bound the other place. We are not reversing it. We are expressing our own judgment. And as we well know, the other place will ultimately have its way. My proposition is that it was such a tight matter in the other place. We now have the report of the Home Affairs Select Committee. We now have the opportunity to influence the other place to think again in a matter in which its previous judgment was tight. I respectfully suggest that that is par excellence where we should feel no inhibition in expressing our own view and we certainly should not think—and it would be vain to think—that if we decided in a particular way that would reverse, in the sense of automatically changing for ever, the decision of the other place.
I was grateful for part of the observations of the noble Lord, Lord Campbell of Alloway, which were to the effect that there would be no difficulty, as he saw it, in identifying racial motivation when one saw it. I agree. There will be a high standard of proof—beyond reasonable doubt. But it is the jury that will have to resolve that.
I would make a separate point to noble Lords who have emphasised that under the current dispensation it is a discretionary factor in sentencing for the judge who sentences to take into account racial motivation. He may gain an appreciation of whether there was racial motivation from the conduct of the trial itself. He may form an impression from being the judge at trial. He may, in addition, form an impression or a judgment from material after the conclusion of the trial which the prosecution draws to the court's attention when the verdict of guilty has been brought in and the matter of sentence is under discussion before the judge. But the advantage of making racially motivated offences is that the defendant in a sense has a better protection because racial motivation will have to be determined beyond reasonable doubt by a jury. It is inconceivable that, if there is an acquittal on a charge of racially motivated manslaughter, the factor of racial motivation could be taken into account when the judge comes to sentence for manslaughter simpliciter, not racially motivated manslaughter.
The noble Lord, Lord Campbell of Alloway, said that one ought to be a realist and not an idealist. I would like to think that to some degree I am an idealist and also
1664
without illusions. Quite realistically, a jury is well capable of acquitting of racially motivated manslaughter and convicting of manslaughter simpliciter. I have far too much confidence in the jury to believe that an acquittal on the first would endanger a justifiable conviction on the second.
The noble Lord, Lord Renton, said that there was some difficulty in a jury distinguishing between the criminal intent which is necessary to be proved in all cases of which that is an ingredient and the commission of the offence on racial grounds. He said that that adds to the burden on the prosecution. I do not accept that. I have greater confidence in the jury. There is no difficulty whatever in a jury doing what it does daily in deciding whether the criminal intent is established beyond reasonable doubt and also of addressing the question of whether the offence as a matter of fact was committed for racial reasons. I have a high opinion of the jury. The noble Lord is raising difficulties which would not exist in practice.
Perhaps I may correct one other observation made by the noble Lord. He said that I acknowledged that the creation of these new offences would give rise to acquittals. I said no such thing and suggest to the noble Lord that when he looks at Hansard tomorrow he will look in vain for anything which I said to that effect.
Lord Renton: My Lords, I did not suggest that the noble Lord suggested that. It was my suggestion that that would be the result.
Lord Irvine of Lairg: My Lords, in that case the issue between us is plain. In my judgment there is no such risk. However, I noted that the noble Lord said that the correct vehicle for dealing with these matters was in the context of Amendment No. 146B in the name of the noble Baroness, Lady Flather. It is interesting. I do not know whether the noble Lord was saying that it was in that area that we shall find the natural context for debate on this subject or whether he was intending to intimate that he is minded to support that amendment when it is moved by the noble Baroness. We shall await that with interest.
The noble and learned Lord, Lord Hailsham, will forgive me if I say that he said, slightly grandiosely, that this amendment was fatally flawed intellectually: if the offence is committed on racial grounds then a jury is well able to resolve that issue as well as the issue of criminal intent. I believe that what the noble and learned Lord was saying was not that that intellectual exercise was beyond his own capacities but beyond those of the common jury.
The noble and learned Lord went on to say in terms —and I confess that I was surprised to hear it—that he for his part did not trust juries because of the perverse acquittals which come from them. I remind him of the many judges of the greatest eminence who across this century have said of acquittals to which their immediate reaction was to disagree but who on mature reflection have concluded and gone out of their way to say that the jury was right not to be satisfied beyond reasonable doubt. I hope that perhaps on reflection the noble and learned Lord will repent of his aspersion on juries when he said, "I for one do not trust juries".
Lord Hailsham of Saint Marylebone: My Lords, I said that in a particular context. I said that there would be a certain number of perverse acquittals, and that I stand by. It is not true to say that I was making a general proposition that I do not trust juries. I have just as much faith in the jury system as anybody else.
Lord Irvine of Lairg: My Lords, if that be right— and I readily accept the noble and learned Lord's explanation—he is doing no more than expressing the opinion that in the law in general in his judgment the jury sometimes returns perverse acquittals. There is no reason to suppose that in relation to this particular offence proposed by this amendment the jury would behave any differently. As a matter of logic it would not always get it right, but we can still trust it.
Lord Hailsham of Saint Marylebone: My Lords, the noble Lord is misrepresenting me. I do not want to continue this altercation, but he is misapprehending me. I was saying that if the amendment were passed it would be counterproductive because there would be fewer convictions for this offence.
Lord Irvine of Lairg: My Lords, there is an issue on that. I understood the noble and learned Lord—as Hansard will show tomorrow—to say that he did not for his part trust juries. I believe that that is an accurate quotation.
Finally, the noble and learned Lord, Lord Lowry, accepted that racial motivation was uniquely pernicious. What he really said was that, because other offences might have been comprehended within this amendment and because there might be other motivations in addition to racial ones which could be included within an appropriate amendment, this amendment was to be placed in the box marked "too difficult" and therefore we should do nothing about it. That is not a form of reasoning which appeals. The balance of the argument is all one way. I propose to test the opinion of the House.
4.46 p.m.
On Question, Whether the said amendment (No. 146) shall be agreed to?
Their Lordships divided: Contents, 110; Not-Contents, 198.

Division No.1

CONTENTS

Ackner, L.

Clinton-Davis, L.

Addington, L.

Cocks of Hartcliffe, L.

Airedale, L.

Dahrendorf, L.

Allen of Abbeydale, L.

Dainton, L.

Alport, L.

David, B.

Annan, L

Dean of Beswick, L.

Ardwick, L.

Desai, L.

Ashley of Stoke, L.

Donaldson of Kingsbridge, L.

Avebury, L.

Dormand of Easington, L.

Barnett, L.

Eatwell. L.

Beaumont of Whitley, L.

Ewing of Kirkford, L.

Beloff, L.

Fisher of Rednal, B.

Blackstone, B.

Fitt, L.

Boston of Faversham, L.

Flather, B.

Bottomley, L.

Gainford, L.

Brooks of Tremorfa, L.

Gallacher, L.

Campbell of Eskan, L.

Geraint, L.

Carmichael of Kelvingrove, L.

Gladwyn, L.

Carter, L.

Glasgow, E.

Chappie, L.

Glenamara, L.

Cledwyn of Penrhos, L.

Gould of Potternewton, B.

1666

Graham of Edmonton, L.

Nicol, B.

[Teller.]

O'Cathain, B.

Gregson, L.

Parmoor, L.

Hamwee, B.

Peston, L.

Harris of Greenwich, L.

Peterborough, Bp.

Hilton of Eggardon, B. [Teller.]

Pitt of Hampstead, L.

Hollis of Heigham, B.

Plant of Highfield, L.

Houghton of Sowerby, L.

Prys-Davies, L.

Howell, L.

Rea, L.

Hughes, L.

Renfrew of Kaimsthorn, L.

Irvine of Lairg, L.

Richard, L.

Jacques, L.

Ritchie of Dundee, L.

Jakobovits, L.

Robson of Kiddington, B.

Jay of Paddington, B.

Rochester, L.

Jeger, B.

Russell, E.

Jenkins of Hillhead, L.

Sainsbury, L.

Kilbracken, L.

Seear, B.

Kintore, E.

Sefton of Garslon, L.

Kirkhill, L.

Serota, B.

Lester of Herne Hill, L.

Shepherd, L.

Llewelyn-Davies of Hastoe, B.

Simon of Glaisdale, L.

Longford, E.

Strafford, E.

Mackie of Benshie, L.

Swinfen, L.

Mallalieu, B.

Taylor of Gryfe, L.

Mar and Kellie, E.

Turner of Camden, B.

Mason of Barnsley, L.

Warnock, B.

Mayhew, L.

Wedderburn of Charlton, L.

McGregor of Durris, L.

Whaddon, L.

McIntosh of Haringey, L.

Wharton, B.

McNair, L.

White, B.

Merlyn-Rees, L.

Williams of Crosby, B.

Monkswell, L.

Williams of Elvel, L.

Morris of Castle Morris, L.

Williams of Mostyn, L.

Morris of Kenwood, L.

Winchilsea and Nottingham, E.

Mulley, L.

NOT-CONTENTS

Aberdare, L.

Craigavon, V.

Ailesbury, M.

Cranborne, V.

Aldington, L.

Crickhowell, L

Annaly, L.

Cullen of Ashbourne, L.

Archer of Weston-Super-Mare, L.

Cumberlege, B.

Arran, E.

Davidson, V.

Ashbourne, L.

De L'Isle, V.

Astor, V.

Dean of Harptree, L.

Attlee, E.

Denham, L.

Balfour, E.

Denton of Wakefield, B.

Barber, L.

Dilhorne, V.

Bauer, L.

Donaldson of Lymington, L.

Belhaven and Stenton, L.

Dormer, L.

Blatch, B.

Downshire, M.

Blyth, L.

Dundonald, E.

Borthwick, L.

Effingham, E.

Boyd-Carpenter, L.

Elibank, L.

Brabazon of Tara, L.

Elles, B.

Bridgeman, V.

Elliott of Morpeth, L.

Bridges, L.

Elphinstone, L.

Brookeborough, V.

Erne, E.

Brougham and Vaux, L.

Faithfull, B.

Bruntisfield, L.

Ferrers, E.

Burnham, L.

Foot, L.

Butterworth, L.

Fraser of Carmyllie, L.

Cadman, L.

Fraser of Kilmorack L.

Caithness, E.

Gainsborough, E.

Campbell of Alloway, L.

Gardner of Parkes, B.

Campbell of Croy, L.

Gibson-Watt, L.

Carlisle of Bucklow, L.

Glenarthur, L.

Carnarvon, E.

Goschen, V.

Chalker of Wallasey, B.

Grafton, D.

Charteris of Amisfield, L.

Grantchester, L.

Chelmer, L.

Gray of Contin, L.

Chelmsford, V.

Greenway, L.

Chesham, L.

Gridley, L.

Clanwilliam, E.

Grimston of Weslbury, L.

Clark of Kempston, L.

Hailsham of Saint Marylebone, L.

Colnbrook, L.

Halsbury, E.

Constantine of Stanmore, L.

Hanworth, V.

Cork and Orrery, E.

Harding of Petherton, L.

Cornwallis, L.

Harmar-Nicholls, L.

Courtown, E.

Harmsworth, L.

1667

Hams of High Cross, L.

Oxfuird, V.

Harvington, L.

Palmer, L.

Hemphill, L.

Pearson of Rannoch, L.

Henley, L.

Peel, E.

Hertford, M.

Pender, L.

Hesketh, L.

Perth, E.

Hives, L.

Peyton of Yeovil, L.

Holderness, L.

Pike, B.

HolmPatrick, L.

Platt of Writtle, B.

Hood, V.

Plummer of St. Marylebone, L.

Hooper, B.

Pym, L.

Hothfield, L.

Rankeillour, L.

Howe, E.

Rawlinson of Ewell, L.

Hylton, L.

Reay, L.

Hylton-Foster, B.

Rees, L.

Inchyra, L.

Renton, L.

Ironside, L.

Rodger of Earlsferry, L.

Jenkin of Roding, L.

Salisbury, M.

Johnston of Rockport, L.

Saltoun of Abernethy, Ly.

Keyes, L.

Sanderson of Bowden, L.

Kimball, L.

Sandford, L.

Lane of Horsell, L.

Seccombe, B.

Lauderdale, E.

Selborne, E.

Leigh, L.

Sharpies, B.

Lindsay, E.

Simon, V.

Lindsey and Abingdon, E.

Skelmersdale, L.

Lloyd-George of Dwyfor, E.

Soulsby of Swaffham Prior, L.

Long, V.

St. Davids, V.

Lucas, L.

St. John of Bletso, L.

Lyell, L.

Stanley of Alderley, L.

Mackay of Ardbrecknish, L.

Stockton, E.

Mackay of Clashfern, L. [Lord

Strange, B.

Chancellor]

Strathclyde, L.

Macleod of Borve, B.

Strathcona and Mount Royal, L.

Manchester, D.

Strathmore and Kinghorne, E.

Mancroft, L.

[Teller.]

Manton, L.

Sudeley, L.

Marsh, L.

Swaythling, L.

McColl of Dulwich, L.

Terrington, L.

Merrivale, L.

Thomas of Gwydir, L.

Mersey, V.

Thurlow, L.

Monson, L.

Tollemache, L.

Montgomery of Alamein, V.

Torrington, V.

Mottistone, L.

Trefgarne, L.

Mountgarret, V.

Trevethin and Oaksey, L.

Mowbray and Stourton, L.

Tryon, L.

Munster, E.

Ullswater, V. [Teller.]

Nelson, E.

Vaux of Harrowden, L.

Newall, L.

Vivian, L.

Nickson, L.

Wade of Chorlton, L.

Norfolk, D.

Wakeham, L. [Lord Privy Seal.]

Norrie, L.

Walton of Detchant, L.

Northesk, E.

Westbury, L.

Onslow, E.

Wilberforce, L.

Oppenheim-Bames, B.

Wise, L.

Orkney, E.

Wyatt of Weeford, L.

Orr-Ewing, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.56 p.m.
[Amendment No. 146A had been withdrawn from the Marshalled List.]
Lord Brightman Lord Brightman moved Amendment No. 146B✶:
After Clause 140, Insert the following new clause:
( "Offence of selling confidential financial information

.—(1) It is an offence for a person ("the seller") to sell or offer to sell information as to the financial affairs of another person if—

(a) the seller knows that the information has been or will be obtained dishonestly or by deception; and

(b) the information is intended to be disclosed without the consent of such other person.

(2) An advertisement or circular indicating that information of that description is or may be for sale is an offer to sell within the meaning of subsection (1).

(3) A person guilty of an offence under this section is liable—

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

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(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.").

The noble and learned Lord said: My Lords, I shall be as brief as I can, because I know that there are many amendments still to come. There are agencies in this country which offer to sell, at a price, confidential information about other people's affairs. The prices range between £100 and £1,000—sometimes more. I have in my hand a circular distributed by one of those agencies. It is headed, "Price list 1993–94". It states:
"The agency will provide a person's bank balance for £245; a copy of his last bank statement for £1,000; his average bank balance over the past six months for £250; his overdraft facilities for £300; his salary £200; pension details £200; the balance on his last credit statement £750".
What is called a sweep search for other accounts and balances is £450, then:
"Overseas tax havens—price on application. Numbered banking accounts—price on application",
and so forth.
At the foot of the circular is stated:
"Absolute confidence and discretion assured. More sensitive areas of intelligence are available on request".
Last year a reporter on the staff of the Daily Telegraph interviewed a gentleman who called himself the operations controller of one of those agencies. The operations controller said to the reporter:
"There is no security system which cannot be circumvented. Details can be obtained for banks or building societies by using pretext or subterfuge. The other way is to pay insiders for contacts and services".
There are other similar circulars because the agency described itself as:
'The widely acknowledged market leaders in the specialist procurement of highly sensitive commercial and personal information".
That circular is a blatant offer to sell confidential information which will be obtained by pretext or subterfuge —that is, dishonesty.
The Director of Public Prosecutions stated unequi-vocally that such offers are not a criminal offence. My amendment will make them a criminal offence. It reads:
"It is an offence for a person ('the seller') to sell or offer to sell information as to the financial affairs of another person if… the seller knows that the information has been or will be obtained dishonestly or by deception".
In Committee two—and only two—objections were raised by the Minister. The first was:
'The biggest trouble … is that it would outlaw activities which are perfectly legitimate … credit reference agencies would be covered by the amendment".—[Official Report, 16/6/94; col. 1826.]
That objection is met by my amendment as now tabled because it applies only to information that has been or will be obtained dishonestly or by deception. A reputable credit agency does not acquire its information dishonestly or by deception, pretext or subterfuge.
The Minister's second objection was:
"The amendment might even make it an offence for a bank to charge a customer for sending him his own bank statement".— [Official Report, 16/6/94; col. 1827.]
If I may say so without giving offence, I cannot help feeling that that observation was rather scraping the barrel in the search for objections to my amendment. Be that as it may, the amendment that is tabled could not possibly be attacked on that score because my bank is not engaged in deception or dishonesty, pretext or

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subterfuge when it sends me my bank statement. Those were the only two objections that the Minister could find to my amendment tabled in Committee.
I turn to the Government's Amendment No. 169ZA, which is grouped with my amendment and has been tabled in response to my amendment. I am grateful to the Minister for tabling the amendment. It is an amendment to the Data Protection Act and makes the wrongful procurement of computer-held personal information an offence. The amendment is undoubtedly useful. It marries perfectly with my amendment and could well count as subsection (2) to a clause which contains my amendment.
However, it does not on its own go far enough in two respects. First, it is confined to computer-held information. It does not touch the wrongful procurement of information that is held, or happens at the stage of procurement to be held, outside the computer. Secondly, it does not stop these iniquitous offers to sell financial information which can be obtained only corruptly— rather like an advertisement, "Country houses robbed to order. Price £10,000".
I shall not detain your Lordships further on this busy day. I respectfully invite all noble Lords who wish to stop at source this incitement to corruption to support my amendment. I beg to move.
Lord Williams of Mostyn: My Lords, speaking personally, I recognise the vice that the noble and learned Lord is seeking to attack. However, I respectfully question whether he has procured the means to attain his objective. Perhaps I may give an illustration which is far from being presently current. Let us assume that it were to be suggested that one or two Members of your Lordships' House were in the habit of accepting money for tabling Questions. Of course, we should immediately reject such a proposition as being quite monstrous. Let us further suppose that an investigative journalist, pretending to be a businessman, approached a Member of your Lordships' House with this monstrous suggestion and obtained certain knowledge about financial affairs; namely, that a cheque for £ 1,000 or even a postal order in the same sum might be quite acceptable. If the freelance journalist then offered that story for sale, perhaps even to the Sunday Times, he would be committing a criminal offence because he would have obtained knowledge about the financial affairs of one of your Lordships by deception; namely, that he was a businessman genuinely interested in procuring information.
Of course, that is a relatively light-hearted illustration but there is a much more serious proposition which I put to see whether my thoughts are correct or whether I have mistaken entirely the effect of the noble and learned Lord's amendment. In our society there is a proper value for investigative journalism, whether undertaken by the newspapers or television. The late Captain Maxwell might usefully have been the recipient of more vigorous investigative journalism while he was alive rather than after he is dead. Many people would have benefited. Generally, the press carries out a useful service in examining the financial affairs not only of politicians or those who hold themselves out in public life but also of
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companies. Often, as the press ethics set out, it may be necessary to resort to a subterfuge or a deception. If the present amendment is accepted, there is a danger that all such investigative journalism carried out by freelancers, or freelancers working for television companies, will become a criminal offence. I very much doubt that that is the intention of the amendment. Speaking for myself, I should very much deprecate that such a consequence could be brought about.
There is a vice that we. need to deal with and the Government's amendment comes closer to doing that, though not perfectly. I should be most grateful to hear the noble and learned Lord's answers to my fears about an unnecessary cramping of proper investigative journalism. It is a useful component in our society, beset as it is with obsessive secrecy for no sensible purpose.
Earl Ferrers: My Lords, it may be for the convenience of the House if, in replying to the: amendment, I speak to my Amendment No. 169ZA because they are grouped together. Your Lordships might find it convenient to have both sides of the same argument at the beginning of the debate rather than at the end.
When the noble and learned Lord, Lord Brightman, moved his amendment on this subject in Committee, I indicated that I should like to reflect further on the arguments that had been put by your Lordships. The result of that deliberation is Amendment No. 169ZA. I should like to suggest that this is a more suitable way of approaching what we all agree to be an offensive and noxious practice—that is, the deliberate obtaining of private information by those who are not entitled to have it.
We have approached the problem through the medium of the Data Protection Act, as the information which is being sought is increasingly likely, these days, to be held on a computer, and because the Data Protection Act contains clear arrangements for determining who is entitled to receive data.
Under the Act, data may be disclosed only to categories of people who are described in the relevant entry in the register, which is held by the Data Protection Registrar. It is already an offence knowingly or recklessly to disclose data to someone who is not described in the register entry. Therefore, the employee of, for example, a bank, who disclosed data to someone whom he knows is not entitled to receive that data, would be liable to prosecution. If an outsider bribed him to do it, that person might also be guilty.
But there is no offence at the moment if the outsider deceives a bank employee into thinking that the person who is making the inquiry is a person who is covered by the relevant register entry; that is, by pretending to be the person to whom the data relate, or by pretending to be someone who is acting on that person's behalf.
That is what our amendment seeks to catch. It makes it an offence to procure the disclosure of data where that disclosure is in contravention of the relevant data protection register entry, and where the person, who is doing the procuring, knows or has reason to believe —in other words he ought to know—that the disclosure constitutes a contravention.

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I believe that that approach addresses the mischief where it is necessary—at the point of disclosure. If you can stop information from being improperly disclosed in the first place, it will not be available for subsequent misuse; for example, for selling. If I may say so, I see several advantages to our approach compared with the approach which is proposed by the noble and learned Lord, Lord Brightman, in his amendment. In the first place, the Government's amendment is not related to the subsequent use which is made of the information which has been improperly obtained. Our amendment applies wherever information is obtained in the way described, and even to any attempt to do so.
Under the noble and learned Lord's approach, the would-be procurer of the information has to be successful in his attempt to obtain this information, and has then to proceed to offer the information for sale before he can be caught by the amendment. In other words, he has to sell before the noble and learned Lord's amendment works. If the inquirer does not offer to sell the information—perhaps because his deception has been discovered before he has had an opportunity to sell the information or if he uses it for some other purpose —then no offence will have been committed.
Secondly, the noble and learned Lord's amendment is confined to financial information. The Government's amendment, though, applies to any information which is protected by the Data Protection Act, such as medical information; tax information; social security information; ex-directory telephone numbers and so on. I know that improper access to these other types of information was a cause of anxiety to some of your Lordships.
Thirdly, I do not think the noble and learned Lord's amendment will be very easy to prove. Establishing the fact of offering something for sale is obvious enough. But to prove that the seller has used, or had intended to use, deception to obtain the information in question, could be very difficult indeed. In the Government's amendment, it is only necessary to prove that a person has procured the disclosure of information when that disclosure contravenes the Data Protection Act. It is not necessary to prove deception.
I understand the outrage which many noble Lords felt on receiving advertising material which had blatantly offered for sale confidential information about other people. As a result of that anxiety, I have considered long and hard with my advisers how best to overcome the problem. But I am bound to tell your Lordships that there is no easy way of dealing with it and that I have, if I may say so, serious misgivings about the approach which the noble and learned Lord has proposed.
The noble and learned Lord's amendment is not confined to the Data Protection Act, but it applies to information of any kind which is obtained dishonestly or by deception, and where the person concerned does not consent to its disclosure.
5.15 p.m.
Lord Brightman: My Lords, my amendment does not refer to any information; it refers to "financial information".
Earl Ferrers: My Lords, I accept that, but the information to which the noble and learned Lord refers does not have to be restricted by the Data Protection Act. The Data Protection Act is a very specialised provision: it is concerned with personal data which is held on a computer, not with information more generally. It was deliberately drafted in that way because of the particular threat which computers entail, by reason of their ability to collate and disseminate lots of pieces of information very rapidly. Given the special direction of the Act, there was no need to include in it any separate provisions; for example, in respect of the activities of the press.
Had the Data Protection Act been concerned with the use of personal information in general, the position would have had to be very different. I have no doubt that Parliament would have felt it necessary to make provision to safeguard the legitimate activities of investigative journalists, to which the noble Lord, Lord Williams of Mostyn, referred. That is why I am particularly concerned about the noble and learned Lord's amendment, which is not confined (as is the Government's) to information which is obtained in contravention of the Data Protection Act but affects the sale of financial information in any form if it is obtained by deception.
I am not suggesting that we should approve of any and every sort of underhand means employed by journalists. But it is not difficult to envisage some circumstances where information ought to be in the public domain. Leaving aside the Data Protection Act, if it was discovered, for example, that a Minister had pocketed £1 million out of public funds —and I hope that your Lordships will agree that I am inviting your Lordships to extend your imagination to its extremities —it could be said that it would be in the public interest for that fact to be in the public domain, even if the information had been obtained by a questionable route. That is when personal privacy and public interest may come into conflict. And this is the area which the noble and learned Lord, Lord Brightman's amendment enters, and in a significant way.
These are difficult questions, and I am not suggesting to the House that the answers are straightforward. Where the line should be drawn between the individual's right to privacy on the one hand, and society's interest in a free press on the other, is a fairly fundamental, contentious and delicate subject. That is why Sir David Calcutt was asked to look into and advise upon the problem and it is one of the issues which the Government will be addressing in their forthcoming White Paper on the press and privacy.
I do not think that we can anticipate the White Paper in what we attempt to do in the course of this Bill, and I do not think that we would be sensible to enter those murky waters. I must advise the House that I think it would be unwise to make changes as the noble and learned Lord's amendment proposes which could have wide-ranging and perhaps unexpected implications for the operation of a free press in this country.
By contrast, I suggest, that the Government's amendment is a valuable step forward. I cannot claim to your Lordships that it will guarantee the end of all the

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practices in this area which many of your Lordships have found so distasteful. For one thing, the mere fact that we make an activity unlawful does not, regrettably, mean that it never happens. Plenty of people, unfortunately, continue to commit murder despite the law. Many people—although I am sure few of your Lordships are among them—go faster than 30 miles per hour when the law provides that they should not. But I do think that our amendment fills a significant loophole in the protection provided by the Data Protection Act. We have moved quickly in order to bring it before your Lordships, and I hope that it will send a clear signal that the Government view very seriously the misuse of personal information in the way in question.
Lord McIntosh of Haringey: My Lords, before the Minister sits down, perhaps I may ask a question simply for information, because I am still listening very carefully to the debate and trying to make up my mind what to do about it. The government amendment refers to "computer-held personal information". Would that include, for example, a bank statement which is produced electronically and printed out on to paper?
Earl Ferrers: My Lords, I may not have the wording quite right but I believe that the amendment refers to information which is held in a computer and which—I believe that I am correct in saying—is subsequently printed out.
Viscount Mountgarret: My Lords, I should say to the noble and learned Lord, Lord Brightman, how strongly I subscribe to his views and feelings on this matter. When the subject was raised in Committee, I noted that my noble friend Lord Ferrers said that he would take away the matter to consider it. To a great extent, I believe that the noble and learned Lord is to be congratulated on having raised the matter in such a way as to persuade my noble friend the Minister to go a long way towards agreeing the substance of the amendment.
The noble and learned Lord was kind enough to circulate a briefing to many noble Lords. I was interested to read that his amendment had been retabled for the Report stage in case —and I emphasise the words "in case"—a government amendment was not forthcoming. However, a government amendment has been put forward; indeed, it is now before the House. Having asked my noble friend the Minister to think again, and in view of the fact that he has produced an amendment, I feel that the matter should rest there. I hope the noble and learned Lord will feel that his concerns have been met to some extent. He deserves the congratulations of your Lordships' House, but my noble friend the Minister should also be congratulated on having been able to persuade his colleagues to go a long way towards meeting the requirements of the noble and learned Lord's amendment.
Elarl Baldwin of Bewdley: My Lords, perhaps I may just ask my noble and learned friend a point of clarification. In subsection (2) of the amendment should it not be "an offer to sell" rather than "an offer to well"?
Lord Brightman: My Lords, there is a mistake on the Marshalled List. Subsection (2) should indeed refer to "an offer to sell".
Lord Peyton of Yeovil: My Lords, I express my gratitude to my noble friend Lord Ferrers for the amendment he has produced. On the other hand, it seems to me that we shall be left in a very odd position; namely, if the information is "computer held" there will be no great magic about it. It will be protected. But if it is not computer held and is obtained by trickery and dishonest means there will be no sanctions against it. I believe that my noble friend is asking us to live with a rather anomalous situation. The real basis for the amendment is the boast that there is no security system that cannot be circumvented. Surely that must make all noble Lords feel uncomfortable and insecure. I am not suggesting for one moment that your Lordships have anything to hide. It is simply that there is a need for all of us to be protected against quite unwarranted intrusions.
A further matter worries me. Unfortunately, there is no shortage of easily corruptible people who will make use of their positions as regards access to private information to make a profit for themselves by selling such information to some kind of grubby organisation like the agencies to which the noble and learned Lord referred. I would be most disturbed if the Government were really asking your Lordships to be content with their amendment, valuable though it is; indeed, I certainly would not deny that fact.
However, I have a certain sympathy with my noble friend on the Front Bench in that he has to answer so powerful and lucid an advocate as the noble and learned Lord who moved the amendment. If I may say so without giving offence to anyone, the brevity with which the noble and learned Lord moved his amendment was matched by his clarity. I can only suggest that the noble and learned Lord offers a marvellous example. The noble and learned Lord put a proposition to my noble friend the Minister which I, for one, hope he will not think of rejecting.
Baroness Faithfull: My Lords, I may be wrong, but the list read out by the noble and learned Lord of items which could be obtained included, I believe, the circumstances of a person's private life. Presumably, such information would not be held on a computer; nevertheless, it might damage a person and his or her reputation irreparably if it was forwarded at the request of the person seeking the information from the agency.
Lord Burnham: My Lords, when my noble friend speaks further to the amendment, I should like him to clarify a point which confuses me. The noble and learned Lord spoke categorically and unequivocally of the "seller" as the man who is to be held guilty of such a crime. However, my noble friend's amendment refers to "a person who procures". I may have misunderstood, but I find the procurer to be the man who obtains the information and he may well not be the seller of such information. Will my noble friend's amendment deal equally with both the seller and the procurer of such information?
Lord Fraser of Kilmorack: My Lords, I strongly support the amendment moved so well and clearly by the noble and learned Lord, Lord Brightman. To me, it fulfils a very long felt need in our society and one that could not be more clearly and fully dealt with. As I said, I strongly support the amendment and I hope that my noble friends will also support it.
Lord Donaldson of Lymington: My Lords, I should very much like to support the amendment of my noble and learned friend Lord Brightman. In doing so, I want to make it clear that I equally support the Minister's amendment. I find nothing inconsistent between the two. One deals with the problem of leaking information which is held on computer but, of course, does nothing about information which is not held on computers. In many cases, there will be considerable difficulties in proving who it was who procured the leak, and so on. But the incentive to leak and to cover up the leakers, if I may put it that way, will exist so long as it is open to people to offer such information for sale. Therefore, in my view, the right way to tackle the problem is to accept both amendments and adopt a two-barrelled approach, bearing in mind the fact that it will be easier to get the man who is offering such information for sale than the man who procured the disclosure of the information.
It would be quite inappropriate for me—and, indeed, quite inappropriate for any Member of this House—to discuss the issue of payment for Questions. I certainly do not intend to do so. However, the Minister raised the question of what we should do upon discovering that a member of Her Majesty's Government had abstracted £1 million from the public till. I believe that the answer is quite clear. You tell the Leader of the Opposition, or, conceivably, and perhaps first, the police.
However, the one thing you do not do—or, at any rate, I see no reason why a special exception should be left to enable you to do so at the price of the very desirable reform of my noble and learned friend—is to offer it to the Sunday Times for a very large reward. I appreciate the force of the very proper tenderness of the noble Lord, Lord Williams, for the press in its investigative journalism role. But it may have escaped your Lordships' attention that the noble Lord started to say that the amendment would inhibit investigative journalism. As I know so well, an advocate listening to himself is sometimes surprised at what he is saying and corrects himself. Indeed, the noble Lord did correct himself. He said that he meant to refer to a freelance. An employee of the Sunday Times doing so would not be offering the information for sale and, therefore, would commit no offence under the Brightman amendment. It is only the freelancer who would be in difficulty and for my part I can live with that.
5.30 p.m.
Lord Williams of Mostyn: My Lords, before the noble and learned Lord sits down, I hope I may deal with that point. The Sunday Times itself would be offering to sell information, or would be selling information, as to the financial affairs of a particular person exposed in the City. Therefore it would not simply be a case of the freelancer. Would not the noble
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and learned Lord agree that someone who published a book exposing a City fraudster would similarly be offering to sell information?
Lord Alexander of Weedon: My Lords, I would like, if I may, to support the approach which has just been put forward by the noble and learned Lord, Lord Donaldson. The first thing I wish to do, if I may, is to thank the Minister for his genuine attempts to meet the mischief which your Lordships have been seized of not only in Committee but in Parliamentary Questions recently. I believe that we owe him a debt for doing so and I know it has demonstrated his personal interest in the issue. But I, too, see nothing inconsistent with the acceptance of that approach and the acceptance of the approach put forward by the noble and learned Lord, Lord Brightman. May I say why I am attracted to the approach of the noble and learned Lord, Lord Brightman? I believe that the amendment put forward on behalf of the Government is valuable, but the root of this mischief is that there are organisations which seek to obtain information in order to sell it. I believe that we ought to go to what is the vice of what we are seeking to deal with.
I know that your Lordships feel that confidentiality is immensely important to customers, and banks agree with that. It is also immensely important to the reputation of banks. These issues are by no means easy to deal with. There may be occasions, which may be difficult to trace, when organisations that seek to sell information procure that information by offering money to those who work within financial institutions. I have no direct evidence of that, but there may well be such cases. However, there are other occasions when such organisations deceive those who work within financial institutions by obtaining sufficient details of the customer's account to enable them to ring the institutions. I have listened in to those telephone calls at the receiving end. The person who is receiving literally hundreds of calls a day has at a moment in time to decide whether the information he is being given is genuine, because if it is genuine that person must, to a degree, be "user friendly"—as it would be put in the jargon—and give information to genuine customers.
This is a difficult tightrope to tread. I am not absolutely clear myself whether the Government's amendment would make it an offence if someone procured information from an employee of a financial services institution who unwittingly disclosed it with no mens rea and therefore might not himself have committed an offence under the Data Protection Act. I rather doubt that that would be the case but I would be grateful if in response my noble friend the Minister—if he does respond—could help on that. Whether that is the case or not, I believe that the essence of this matter is that we all know that the real mischief we want to strike at is those who seek to gain a profit from this information by selling it. I should have thought, having heard the constructive tones of this debate, it would not be impossible to put together the best of the Brightman amendment and the best of the government amendment and bring that back to us, on an agreed basis, at Third Reading.
Lord Hailsham of Saint Marylebone: My Lords, I was about to say almost what has fallen from the lips of my noble friend Lord Alexander of Weedon. I wish to endorse what he has said as a possible way out in the hope of proving helpful to both parties. I wish to thank my noble and learned friend Lord Brightman for having paid attention to the rather pedantic little point I made in Committee, to which I think he gave a somewhat inadequate reply. However, he has now dealt with it completely. But there is a hole in his amendment; namely, that it is confined to financial information. I thought that my noble friend Lord Ferrers made a good point when he said that medical information, for instance, could be equally sensitive.
My noble and learned friend Lord Donaldson and my noble friend Lord Alexander of Weedon made the point that the government amendment is defective in one respect; namely, that it is confined to computer held information. There must be information of a kind which one would like to protect which is not computer held. I do not even know whether my bank, which is a small one, holds my financial information on a computer, and there are certainly a lot of other details about me which are not held on computers which I certainly would like to protect. I am therefore in the position of the man in the "Beggar's Opera" who sang a song —perhaps your Lordships remember this—
"I could be happy with either
Were t'other dear charmer away,
But when they both tease me together.
To neither a word will I say,
But fa-lah di-lah lah di-loh-lah".
I think my noble friend Lord Alexander has suggested a way out and that is that the benefits and the limitations of the two amendments, which are now apparently in contention with one another, could be reconciled. They are not incompatible basically, and the point of the noble Lord, Lord Williams of Mostyn, could be fanned in because, if he really tried, I do not think it would be beyond him—it certainly would not be beyond other legal brains interested in this matter—to put in a public interest defence to the version of the clause of my noble and learned friend Lord Brightman. I wonder whether it is not right therefore to accept the suggestion of the noble Lord, Lord Alexander, that we should take these matters away at this stage and come back at Third Reading with an amalgam between the two cases. If they are incompatible, I do not know which of the two charmers I would like to vote for.
Earl Attlee: My Lords, I rise briefly to support both amendments. The noble Earl's amendment refers to personal information; that is, for example, information about the noble Lord, Lord Boyd-Carpenter, or about myself. The amendment of the noble and learned Lord, Lord Brightman, refers to information about a person. Legally, as I understand it, "a person" could be a small limited company. Therefore leaks about the financial information of a small limited company could be very valuable.
Baroness Nicol: My Lords, I ask the Minister when he is responding to this debate to say whether he is prepared to accept the useful compromise that has been put forward. I think it is a way out, and more than that,
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it is not just a way out but a way of improving the provisions of both these amendments. If there is a fault in the amendment of the noble and learned Lord, to which I have put my name, it is that it is limited to financial information.
The noble Baroness, Lady Faithfull, asked earlier about that point. I would say to the noble Baroness that; the circular to which we referred has a great many other items on it which for the sake of brevity we did not read out. It includes a great deal of information which will not be on computer, which is not financial and which is; "price on application" information. I would very much like to see that information included in these restrictions if it can be done. I hope that the Minister will be able to accept the idea of amalgamating both these provisions. If not, I hope that my noble and learned friend—if I may call him so—will press this to a Division because it must go through.
Lord Harris of Greenwich: My Lords, I would hope that we would be able to achieve some progress on this; matter between this debate and Third Reading. I agree: with the noble and learned Lords, Lord Hailsham of Saint Marylebone and Lord Donaldson, and with the noble Lord, Lord Alexander, that one of these; amendments is not the enemy of the other. They can in my view be reconciled. The only point I wish to make in addition is that I agree with the noble and learned Lord, Lord Hailsham, in that I too think there should be a public interest defence. I think that that is an important: matter given the speech which was made by the noble Lord, Lord Williams of Mostyn. I think it would improve the whole handling of this issue.
I welcome what the Government have said, but I very much hope that the noble Earl will indicate that he is prepared to look at this matter again between the debate today and Third Reading next week to see whether it is possible to discuss the issues behind the amendment tabled by the noble and learned Lord, Lord Brightman.
Lord McIntosh of Haringey: My Lords, I suspect that that is the emerging consensus and probably wise advice. I agree with the noble and learned Lord, Lord Hailsham, that there are difficulties and attractions in relation to both amendments. I agree particularly with his suggestion about the public interest.
The issue which would sway me most if the matter went to a Division today is the issue raised by my noble friend Lord Williams of Mostyn. That is the issue of whether this amendment—or indeed either amendment —would inhibit investigative journalism. Unless I were fully convinced by the noble and learned Lord, Lord Brightman, in his reply to the debate, or by the Minister in replying in respect of his amendment, that that was; not the case I do not at present feel that I could vote for either amendment.
Earl Ferrers: My Lords, perhaps I may have the: leave of the House to respond at this stage before the: noble and learned Lord, Lord Brightman, responds to the debate as a whole.
It is difficult to follow up the attractive suggestion of the noble and learned Lord, Lord Donaldson of Lymington; namely, to ride both horses at once and

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accept both amendments. I say that with a considerable amount of humility, because when the matter was discussed in Committee I was deeply attracted by the amendment which the noble and learned Lord, Lord Brightman, put down at that stage. I have tried to see whether it would be possible to accede to the points which he tried to make and which he is trying to make with his amendment today.
The Government have approached the problem by recognising that the important issue is to try to attack the mischief where it occurs. It occurs where the information is divulged. The amendment in the name of the noble and learned Lord, Lord Brightman, states:
"It is an offence for a person … to sell or offer to sell information … if the seller knows that the information has been or will be obtained dishonestly or by deception".
Therefore, the noble and learned Lord's amendment would require that before one could catch the person one would have to establish that the information had been obtained by deception or improperly.
Lord Brightman: My Lords, the amendment says that the information "has been or will be obtained".
Earl Ferrers: My Lords, there is no dispute about that. The point is that it has to be found that the information was obtained improperly or by deception. If that is established, the person is caught under the Government's amendment. The Government's amendment tries to catch the person who has divulged the information. Therefore, before the noble and learned Lord's amendment could operate, the person would have had to have fallen foul of the Government's amendment. In that respect, I believe that we have the edge.
My noble friend Lord Alexander asked about the position of the employee who had passed on to somebody else information which he had obtained genuinely and to which he was entitled. My noble friend asked whether that person would have committed an offence. The employee would not have committed an offence if he had passed on the information to a person whom he genuinely thought to be the right person. It would be the procurer who had committed the offence by masquerading as somebody else.
I turn to the second part of the noble and learned Lord's amendment. This is the part with which I have the most difficulty. It is also the part with which I have the greatest sympathy. The noble and learned Lord, Lord Brightman, wants to catch the person who sells the information. That is what we would all like to achieve. However, once one enters that territory one faces the problem which the noble Lord, Lord Williams of Mostyn, described in relation to what is privacy and where the public interest takes precedence.
I ask your Lordships not to go down the route proposed in the amendment of the noble and learned Lord, Lord Brightman. The report of Sir David Calcutt on privacy and the public interest has been produced. The Government have to make up their mind on that issue. It is a very difficult and sensitive subject. We shall then have to issue a White Paper and there will have to
1680
be consultation. I believe that if we were to accept the noble and learned Lord's amendment we would pre-empt that process.
That is why I suggest that it would be wiser to accept the Government's amendment rather than that of the noble and learned Lord, Lord Brightman. Your Lordships have suggested that we might take the matter away and look at it again to see whether we could combine the two. I have thought hard about the matter with my advisers to see whether we could combine the two because that was my natural inclination. I am advised that it would be very difficult to combine them.
For those reasons I hope that the noble and learned Lord will acknowledge that we have gone as far as we possibly can on this matter before running into the deeper trouble which we might run into with his amendment. Therefore, I hope that he will accept the Government's amendment and graciously withdraw his own.
5.45 p.m.
Lord Brightman: My Lords, I acknowledge with gratitude the amendment which the noble Earl has put down. There is no doubt that it goes a long way to meet our problems. I am the last person in any way to denigrate what he has achieved. I must apologise if I gave the impression that I opposed his amendment. I had no intention of conveying that impression.
It is my belief that one amendment supplements the other. I should have liked to have seen my amendment followed by the Minister's amendment as two subsections of the same clause. Then I believe we would really have achieved something.
I must deal with a point which has been mentioned a great many times; namely, the point rightly raised by the noble Lord, Lord Williams of Mostyn. He was anxious about the work of investigative journalists and wanted to know what I had to say about that. I am not in favour of the acquisition of information dishonestly by subterfuge or deception. I stand by that. The press do very good work and investigative journalists are very useful, but I do not like the acquisition of information dishonestly.
I am not certain whether I quite understood the query raised by the noble Baroness, Lady Faithfull, concerning the difference between my amendment and the government amendment. My amendment is confined to financial information. It covers such information whether or not it is held on a computer. The government amendment is wider than my amendment in the sense that it applies to all personal information, but only when held on computer.
I should have thought that it would be perfectly possible for the Government to produce a combined amendment. I should not like to do anything which impeded that. However, we have not been given any undertaking by the noble Earl that the Government will come back with a composite amendment. In those circumstances, I am bound to take the opinion of the House, particularly in view of the large number of letters I have received in support of my amendment.
5.48 p.m.
On Question, Whether the said amendment (No. 146B✶) shall be agreed to?
Their Lordships divided: Contents, 163; Not-Contents, 111.

Division No.2

CONTENTS

Ackner, L.

Houghton of Sowerby, L.

Addington, L.

Hughes, L.

Aldington, L.

Huntingdon, E.

Alexander of Weedon, L.

Hylton, L.

Allen of Abbeydale, L.

Hylton-Foster, B.

Annan, L.

Inchyra, L.

Ardwick, L.

Irvine of Lairg, L.

Attlee, E.

Jacques, L.

Baldwin of Bewdley, E.

Jakobovits, L.

Beaumont of Whitley, L.

Jeger, B.

Belhaven and Stenton, L.

Jenkins of Hillhead, L.

Blyth, L.

Kilbracken, L.

Bonham-Carter, L.

Kinloss, Ly.

Boston of Faversham, L.

Kintore, E.

Bottomley, L.

Lauderdale, E.

Boyd-Carpenter, L.

Llewelyn-Davies of Hastoe, B.

Brabazon of Tara, L.

Longford, E.

Brentford, V.

Lovell-Davis, L.

Bridges, L.

Mackie of Benshie, L.

Brightman, L. [Teller.]

Macleod of Borve, B.

Broadbridge, L.

Mallalieu, B.

Bruce of Donington, L.

Masham of llton, B.

Butterworth, L.

Mason of Barnsley, L.

Cadman, L.

Mayhew, L.

Carnarvon, E.

McGregor of Durris, L.

Chappie, L.

McNair, L.

Charteris of Amisfield, L.

Merrivale, L.

Clanwilliam, E.

Minto, E.

Cledwyn of Penrhos, L.

Monkswell, L.

Clinton-Davis, L.

Monson, L.

Colville of Culross, V.

Morris of Kenwood, L.

Colwyn, L.

Morris, L.

Constantine of Stanmore, L.

Mottistone, L.

Cork and Orrery, E.

Mountevans, L.

Cornwallis, L.

Mowbray and Stourton, L.

Craigavon, V.

Nelson, E.

Crickhowell, L.

Newall, L.

Dahrendorf, L.

Nicol, B. [Teller]

Darcy (de Knayth), B.

Onslow, E.

David, B.

Oppenheim-Barnes, B.

Davidson, V.

Orkney, E.

Dean of Beswick, L.

Orr-Ewing, L.

Desai, L.

Pearson of Rannoch, L.

Dilhorne, V.

Pender, L.

Donaldson of Kingsbridge, L.

Perth, E.

Donaldson of Lymington, L.

Peyton of Yeovil, L.

Donoughue, L.

Pitt of Hampstead, L.

Dormand of Easington, L.

Plummer of St. Marylebone, L.

Fairhaven, L.

Prys-Davies, L.

Faithfull, B.

Rankeillour, L.

Falkland, V.

Redesdale, L.

Foot, L.

Renton, L.

Fraser of Kilmorack, L.

Richard, L.

Gainsborough, E.

Ritchie of Dundee, L.

Gallacher, L.

Rochester, L.

Geraint, L.

Roskill, L.

Glasgow. E.

Russell, E.

Glenamara, L.

Salisbury, M.

Glenarthur, L.

Seear, B.

Gould of Pottemewton, B.

Sefton of Garston, L.

Graham of Edmonton, L.

Serota, B.

Greenway, L.

Shaughnessy, L.

Hamwee, B.

Shepherd, L.

Hanworth, V.

Sherfield, L.

Harding of Petherton, L.

Simon of Glaisdale, L.

Harris of Greenwich, L.

Skelmersdale, L.

Harris of High Cross. L.

St. John of Bletso, L.

Harvington, L.

Stedman, B.

Hollis of Heigham, B.

Stoddart of Swindon, L.

Hood, V.

Strabolgi, L.

Hooson, L.

Strafford, E.

1682

Swinfen, L.

Warnock, B.

Taylor of Blackburn, L.

Waverley, V.

Taylor of Gryfe, L.

Wedderburn of Charlton, L.

Thurlow, L.

Wharton, B.

Tordoff, L.

White, B.

Torrington, V.

Wilberforce, L.

Tryon, L.

Williams of Elvel, L.

Turner of Camden, B.

Winchilsea and Nottingham, E.

Vaux of Harrowden, L.

Wyatt of Weeford, L.

Vinson, L.

Young of Dartington, L.

Walton of Detchant, L.

NOT-CONTENTS

Aberdare, L.

Ironside, L.

Annaly, L.

Jeffreys, L.

Archer of Weston-Super-Mare, L.

Johnston of Rockport, L.

Arran, E.

Kimball, L.

Astor, V.

Lane of Horsell, L.

Balfour, E.

Leigh, L.

Barber, L.

Lindsay, E.

Blatch, B.

Lindsey and Abingdon, E.

Borthwick, L.

Long, V.

Brigstocke, B.

Lucas, L.

Brookeborough, V.

Lyell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Bruntisfield, L.

Mackay of Clashfern, L. [Lord

Carlisle of Bucklow, L.

Chancellor.]

Carmichael of Kelvingrove, L.

Manton, L.

Carter, L.

Marlesford, L.

Chalker of Wallasey, B.

McColl of Dulwich, L.

Chelmer, L.

McIntosh of Haringey, L.

Chelmsford, V.

Merlyn-Rees, L.

Chesham, L.

Mersey, V.

Clinton, L.

Mountgarret, V.

Courtown, E.

Munster, E.

Cranborne, V.

Northesk, E.

Cumberlege, B.

O'Cathain, B.

De L'Isle, V.

Oxfuird, V.

Dean of Beswick, L.

Peel, E.

Denham, L.

Peston, L.

Denton of Wakefield, B.

Pike, B.

Dormer, L.

Platt of Writtle, B.

Downshire, M.

Rawlinson of Ewell, L.

Dundonald, E.

Rodger of Earlsferry, L.

Elibank, L.

Romney, E.

Ellenborough, L.

Saltoun of Abemethy, Ly.

Elles, B.

Sanderson of Bowden, L.

Elliott of Morpeth, L.

Sandys, L.

Elphinstone, L.

Selborne, E.

Ferrers, E.

Sharpies, B.

Flather, B.

Soulsby of Swaffham Prior, L.

Fraser of Carmyllie, L.

St. Davids, V.

Gardner of Parkes, B.

Stanley of Alderley, L.

Geddes, L.

Stockton, E.

Gibson-Watt, L.

Strange, B.

Goschen, V.

Strathclyde, L.

Gowrie, E.

Strathcona and Mount Royal, L.

Gray of Contin, L.

Strathmore and Kinghorne, E.

Grimston of Westbury, L.

[Teller.]

Harmar-Nicholls, L.

Sudeley, L.

Harmsworth, L.

Thomas of Gwydir, L.

Hayhoe, L.

Trefgarne, L.

Hemphill, L.

Trumpington, B.

Henley, L.

Ullswater, V. [Teller.]

Hertford, M.

Vivian, L.

Hives, L.

Wakeham, L. [Lord Privy Seal.]

HoImPatrick, L.

Williams of Mostyn, L.

Hooper, B.

Wolfson, L.

Hothfield, L.

Wynford, L.

Howe, E.

Resolved in the affirmative, and amendment agreed to accordingly.
5.58 p.m.
Baroness Flather Baroness Flather moved Amendment No. 146B:
Before Clause 141, insert the following new clause:
("Racial motivation to be an aggravating factor in sentencing
In section 29 of the Criminal Justice Act 1991, the following subsections shall be inserted after subsection (2)—
"(2A) In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.
(2B) In this section 'racial motivation' means a motivation on grounds of colour, race, nationality or ethnic or national origin.").
The noble Baroness said: My Lords, I much regret that we have had a break in the debates on the amendment standing in the name of the noble Lord, Lord Irvine of Lairg, and Amendments Nos. 146B and 146C because they relate to the same subject. It would have been far better if the mood of the House had been sustained. I am sorry that there has been a break during which your Lordships have been considering very different matters. I should have liked my amendments to follow that of the noble Lord, Lord Irvine, on racially motivated violence, because the issues noble Lords were thinking of at that stage were the very ones of which I wish to remind noble Lords again. Had I followed him, I might not have needed to say much to that effect because the matter would have been fresh in noble Lords' minds. However, I shall still not speak for a great length of time.
I just want to remind the House that there is a sickness in our society, whether or not we wish to recognise it. I was much encouraged by the sentiments that I heard from all sides of the Chamber making it clear that noble Lords abhor and despise the sickness which is present in our midst. It is good to have that feeling expressed, but there must come a moment when the feeling has to be translated into something concrete and presented to the public, the victims, those whose lives are every day being blighted in all parts of this great city. I do not know how many of your Lordships have personal experience or knowledge of families who are frightened to leave their homes. It is not something about which we can be totally intellectual or abstract, it is people's lives. It is necessary to express the sentiment that your Lordships expressed so well a short time ago in saying that noble Lords despise that kind of behaviour. It is time to do something about it, to enshrine our determination in an Act of Parliament in some way, to send out a strong message, not an empty one. No doubt my noble friend the Minister will tell us that it is merely an empty message. I do not believe it to be so.
We spoke in passing about Lord Salmon, who dealt with the rioters in the Notting Hill riots. The impact of his sentences on those rioters and that situation is remembered to this day. He said that he would not tolerate that kind of behaviour in a society which calls itself civilised, fair and just. We do call ourselves civilised, fair and just. It is, in my opinion, a most un-British thing to do, to penalise and victimise people simply because you do not like the way they look or the way they live or the way they eat. They are doing nothing to you, they are not committing any kind of offence, they are going about their normal lives. But you do not like the way they look, therefore you can create a situation where their life becomes a total and utter misery.
I think it might be a good thing if we all went back
1684
and read Lord Salmon's judgment. I had intended to bring it with me but I forgot. After all these years, it is as fresh as it ever was and it reminds us that it is important from time to time to send out a strong message to say that society will tolerate so much and no more.
I was grateful for the support of my noble friend Lord Renton: it was much welcomed by me. I look forward to what he may have to say on my modest amendment. I was told on the previous occasion that there was already guidance for judges in this area. It might interest your Lordships to know that no such guidance exists for magistrates. I have spoken to the chairman of the Magistrates' Association and she informs me that no such guidance exists. When we consider the number of offences which would be dealt with in the magistrates' courts, where these issues would be important, it is something to be concerned about.
I was at a conference this morning organised by the Association of District Councils. I spoke on the subject of racial harassment on council estates. During questions, one of the questioners mentioned that when the police finally bring someone to court, that person is not dealt with severely enough if racial harassment is proved or the racial element is proved. There is no such offence as racial harassment.
There should be no room for ambiguity, there should be a clear and precise statement of what we wish to happen. That is exactly what the Government did in another situation only last year. Section 66(6) of the Criminal Justice Act 1993 amended Section 29 of the Criminal Justice Act 1991 to stipulate that courts should regard the fact that an offence was committed on bail as an aggravating factor. The 1993 Act inserted into the 1991 Act a new Section 29(2), which states:
"In considering the seriousness of any offence committed while the offender was on bail, the court shall treat the fact that it was committed in those circumstances as an aggravating factor".
If it was a matter of common sense, one would say that this would be a most obvious point; one should not need to put it in an Act of Parliament. Yet it was considered serious enough to be put in an Act of Parliament. Is not a racial motive serious enough to be enshrined in an Act of Parliament?
I believe that it is extremely important to put something along similar lines into this Bill. We need to ensure that courts always regard racial motivation as an aggravating factor. That is the feeling behind the amendment.
The second of the two new clauses lays a duty on the prosecution to disclose any racial element in an offence. I took part in a "Panorama" programme about six months ago. One of the factors that came out through the research that was done for the programme was how frequently the racial element in a particular offence was not disclosed to the court by the Crown Prosecution Service. Very often, when the offender pleaded guilty to a lesser charge or an agreed charge, that area of concern was kept from the court. That has also come through from much anecdotal evidence. It is not always disclosed to the court that there is a racial element involved in a particular offence.
When I put the clause down at the Committee stage, the Minister said:
"At present, the prosecutor has a duty to inform the court of any factors which make the offence unusually serious—which includes information that an offence was racially motivated—and also to inform the court of any mitigating circumstances if those are known.
'The Government are concerned to ensure that evidence which goes to show racial motivation should be clearly indicated at every stage of the process … The police and the Crown Prosecution Service are already taking steps to identify cases where there is evidence of racial motivation. That is an issue which can be dealt with more effectively through additional guidance and training for all agencies involved in the criminal justice system rather than by legislation". —[Official Report, 16/6/94; col. 1937.]
Surely, guidance and training should be happening in any case. They are not alternatives to a duty to disclose. They should be there and they should be continuous. Each should work in such a way as to reinforce the other: guidance and training and a duty of disclosure. We need to create confidence in the victims, in the minority community, and indeed we need to send a message to the majority community or the perpetrators that this kind of behaviour will be taken into account by the courts. But it can only be taken into account by the courts if they are informed of it. If it is kept from the courts, then the decision is being made by the CPS in the first instance. We are not happy about that. It is extremely important that this clause is accepted by noble Lords. It is important that everyone who is a victim of a racially motivated crime knows that, whatever happens, that racial element will be placed before the courts. I beg to move.
Lord Renfrew of Kaimsthorn: My Lords, it is a great pleasure and privilege to support my noble friend Lady Flather in this amendment. I feel that this matter is one of the most difficult issues in our society at the present time. We had an extended debate earlier in the evening on the general theme of racially motivated crimes and how appropriate it is to respond to them. Like my noble friend I think that it is a matter for regret that for procedural reasons the debate on these subjects has been interrupted for an hour by other matters, albeit matters of importance.
It is fair to say that this amendment is in some ways less radical than the one that was proposed earlier by the noble Lord, Lord Irvine. This amendment does not set out to create new categories of offence; it deals primarily with the issue of sentencing, although there is also the succeeding amendment, on the matter of the placing of relevant information before the court.
A number of noble Lords who discussed the issue in the earlier debate addressed themselves to the matter of sentencing. The remarks of the noble and learned Lord, Lord Ackner, would have been as appropriate to this amendment as to the earlier one. The same may be true of the remarks of my noble friend Lord Boyd-Carpenter and the views expressed by my noble friend Lord Renton.
This amendment is somewhat minimal, but it sends a signal that is of great importance at the present time. It is minimal because Clause 29(2) of the Criminal Justice Act 1991 reads:
"Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender,
1686
nothing in this Part shall prevent the court from taking those factors into account for the purpose of forming an opinion as; to the seriousness of the offence".
So the general concept of aggravating factors is clearly set out in the Criminal Justice Act 1991. The present amendment simply emphasises that racial motivation should be treated by the court as an aggravating factor in that context.
The accompanying amendment—which is a very important one, as my noble friend emphasised—that,
"it shall be the duty of the prosecuting authority to place before the court any information or material tending to show that the offence was committed with a racial motivation",
will, one hopes, ensure that these matters are brought effectively to the attention of the courts. As my noble friend argued, that is not always the case at the present time.
It is the case that Parliament urgently needs to send a signal because of the tide of racism and racially motivated offences which is afflicting our society. That is the reason why it is appropriate to single out racial motivation at the present time. My noble and learned friend Lord Hailsham, who is, alas, no longer in his place, very effectively made the point that there are many other kinds of distasteful event of which one can take an equally dim view. That may very well be the case. But the point is that racially motivated offences are a problem in our society, and one to which Parliament should turn its attention.
A census in 1991 indicated that over the previous two years there had been 130,000 racially motivated incidents. Over two years there had been 14 racially motivated murders of Afro-Caribbean and Asian individuals. Those are very shocking figures.
The point has also been made that if each of those 130,000 incidents affects all the members of a family —perhaps five members, since many of the families involved are large —that will mean that something like one-third of the families of ethnic minority groups in the United Kingdom each year are affected by the knowledge that within their family or near their family there have been such offences.
I do not have direct personal experience of this kind of harassment. There are very few persons in this House who do. But it is an extraordinary circumstance that there is a significant proportion of the population which must sometimes walk in fear. As my noble friend said, there are people who are frightened to go out of their houses.
It is of course the case that in a society where there is a not negligible crime rate it may be that old and infirm people think twice about leaving their houses at night. But when we talk of people in minority groups, their fear is of a different kind. It is an apprehension that affects them day and night through the totality of their lives in this country, and it is deeply obnoxious. Nobody in this House denies that it is obnoxious, but in emphasising these points I am trying to underline why it seems relevant that this modest amendment providing that racial motivation should be explicitly referred to as an aggravating factor should be accepted.
In earlier discussions there was general agreement that we would wish to live in a society that was racially blind—that is to say, a society that would not take

1687
account of racial distinctions in a negative way. But I fear very much that at the present time we come very close to turning a blind eye to some of the obnoxious discriminating distinctions which are made. For that reason I think it would be very timely if noble Lords would support this amendment.
The Earl of Onslow: My Lords, again, I shall just draw a little picture. The noble Baroness, Lady Seear, does not come into it this time. If you are a Bengali mother living in a council house at the back of Brick Lane and you have had yobs throwing bricks through your window and shouting racist and offensive slogans, I think it is hard to feel anything other than the greatest possible contempt for that sort of behaviour. Where I have a difficulty, even though I have immense sympathy with the amendment, is in this respect. My noble friend has in a way highlighted the difficulty. We already have a piece of law which says that aggravating factors must be taken into account when sentencing. What we surely should not do in a piece of law is make an aggravating factor more aggravating by statute than it is by common sense.
That is where I have a slight difficulty with the amendment, even though the House is universally sympathetic to the idea behind it. It is hard to imagine the Bengali woman I mentioned suffering such treatment. I find it difficult to imagine anything nastier than that or than the treatment of Jews in the East End of London before the war. It is intolerable and quite out of kilter with a civilised society. But I have my doubts whether one should have more special aggravation laid down by statute.
Lord Annan: My Lords, I rise on the point which the noble Earl addressed and which was mentioned also by the noble and learned Lord, Lord Hailsham; namely, whether there is a distinction and a real difference between a crime committed just as a crime and a crime which is racially motivated.
The noble and learned Lord, Lord Hailsham, told the story of the Pontiff at Drogheda who said, "Murder is murder is murder." In a more sprightly vein, the noble Earl referred to his feelings as a drunken undergraduate, 20 years old, toward the noble Baroness, Lady Seear. Incidentally, he has just given exactly that kind of impression. However much he despises and hates the conduct of those who taunt and throw bricks through the windows of a Bengali mother living in Brick Lane, one must accept that there is no real distinction, but there is a distinction.
Perhaps I may tell the noble Earl my little story. I shall imagine myself motivated by highly patriotic sentiments. I go to Highgate cemetery and daub the monument to Karl Marx with the Union Jack to show my contempt for Marxism. It is an act of vandalism and totally unacceptable in a civilised society to treat graves in that way. Let me contrast that with another kind of daubing—the daubing of a Jewish grave with the swastika. There is a distinction. What the man who does that is saying to the man under the ground is, "Good riddance and good riddance to the six million who were gassed during the war". That is the distinction.
1688
The noble Baroness is right to draw our attention to that and to the fact that the ethnic communities in the East End of London—and not merely there but in Leeds and elsewhere, all over the country—who are subjected to that kind of violence and harassment suffer violence of a different order from the kind of mindless violence and yob behaviour that we see every day in our midst. That is why I shall support the noble Baroness if she divides the House.
Lord Renton: My Lords, my noble friends Lady Flather and Lord Renfrew of Kaimsthorn were kind enough to say that during our earlier discussion on the amendment put forward by the noble Lord, Lord Irvine of Lairg, and pursuing what the noble and learned Lord, Lord Ackner, said about the importance of the effect of racial motivation on sentence, I mentioned that it was more relevant and helpful to discuss the matter on this amendment than the earlier one.
I agree with my noble friend that in deciding the sentence in any case the court should be obliged to consider the motive with which the crime was committed. When the motive is a wrongful motive, or a motive against the public interest or hurtful to individuals, or a racial, political, religious, commercial or sexual motive, any of those factors should be borne in mind by the court. Therefore I do not feel that my noble friend's amendment goes far enough.
I humbly suggest that the best plan is for my noble friends not to press the amendment but to consider a simple amendment to Section 29 of the 1991 Act, obliging the court to take into consideration the motive of the crime when fixing sentence. Something on those lines and quite brief would be much more satisfactory and would cover all the bad motives that we all dislike.
Lord Lester of Herne Hill: My Lords, I should like briefly to explain my support for the amendment of the noble Baroness, Lady Flather. I do so with diffidence because I have only sat as a criminal judge for about eight years. As I look around the Chamber I see many noble and learned Lords and many noble Lords who have far more experience than I of the administration of criminal justice. But during the eight years in which I have sat as an assistant recorder and recorder, I have had the difficult task of trying cases in London that in many instances had a racial element.
Having attended the training sessions of the Judicial Studies Board at which senior judges tried to teach me how to become a good sentencer, I became aware of the difficulties which arise through a lack of adequate guidance from the board, the Lord Chief Justice and the Home Office. My attitude towards the first amendment, and for that matter the second one, will be very much affected by whether the noble Earl the Minister is able to give an assurance that the amendments would be effected by administrative means; in other words, that there would be binding guidelines upon judges and the prosecuting authorities to that effect. My understanding is that there are no such intentions to introduce binding guidelines.
The aims of the amendments will be shared by everyone in this House: that of ensuring that racial

1689
motivation is an aggravating factor and that a duty of the kind described is placed on the prosecuting authorities. All that one is concerned with is the means.
It seems to me that in the absence of binding administrative guidelines to judges and sentencers at every level and to prosecuting authorities, it is right for Parliament to give such guidance in legislative form. Unless we hear that there are to be legally binding administrative guidelines without the need for legislation, it seems to me that the case for legislation is, frankly, overwhelming.
Lord Lucas: My Lords, the amendments to which my name is attached propose a public demonstration, indeed a public affirmation, of the Government's determination to do something about racism and racial attacks. As such, the provisions would be of great value in a situation in which public morale is at stake. My noble friend Lord Beloff and many other noble Lords made that point in the debate on Amendment No. 146.
These amendments have the added virtue that they are very easy to accommodate within the structure of the criminal law. They are effective and follow established lines. They are relatively uncontroversial and catch all crimes. Whatever crime may be committed with a racial motivation, the amendments catch it.
My noble friend the Minister said, I believe, when discussing Amendment No. 146, that it was important to make sure that at every stage of the process racial aspects were pursued. Yes, that is what the amendments seek to write in letters of fire on the face of the Bill.
My noble friend Lord Ferrers knows that I support the Government's preference for universal and not specifically racial crimes. If the Government wished to do so, they could take the spirit of the amendments of my noble friend Lady Flather as my noble friend Lord Renton suggested or perhaps follow the definition put forward by the Commission for Racial Equality that racially motivated crime is serious because it is,
"directed against its victims not because of what they happen to own, but because of what they naturally and inescapably are. Such attacks therefore threaten all members of the same minority community, creating a deep sense of fear".
The Government therefore could substitute for the concept of racial motivation the concept of an intent to spread fear among the community or a part of it for racial or other motives. To my mind such a route could achieve the universality that the Government prefer; it could preserve the benefits that would flow from my noble friend's amendment and draw into its net similar crimes—as the Minister pointed out—committed against women, homosexuals, the elderly, and indeed on religious grounds, which will be the subject of later amendments.
The Citizen's Charter shows the value of public standards and aspirations in improving the way that the Government and their machinery work. In that spirit, I commend the amendments to my noble friend and hope that he will adopt them in spirit, if not in their actual words.
6.30 p.m.
Lord Irvine of Lairg: My Lords, this is the amendment to which the noble Lord, Lord Renton,—as he said a moment ago—cal led attention in the course of his speech on Amendment No. 146 which I moved. We had a detailed debate on the racial issues at: stake on that amendment and I can therefore express myself briefly. I accept what came from the noble Lord, Lord Renfrew —that is, that this amendment is much less radical than Amendment No. 146, which would have created racial motivation as an ingredient of offences had it found favour with your Lordships' House. Amendment No. 146B was rightly described by the noble Lord, Lord Renfrew, as minimal; but, I would add, of real consequence as well if it is accepted.
I part company from the noble Lord, Lord Lester, in his suggestion that he may be satisfied by a strengthening of guidelines to the judiciary on sentencing, though I agree with him that no such suggestion as a substitute for the amendment is likely to come forward. I find wholly persuasive what was said by the noble Lord, Lord Lucas. It would be a tragedy if we parted from our deliberations on these issues today without Parliament as Parliament sending some clear signal of its condemnation of racially motivated criminality.
I said that I would express myself briefly and I shall make that good. I have two basic points to make in commending the amendment to the House and in supporting it. In my experience also the sentencing decision of a judge is a difficult one and one which causes the most experienced judges great anxiety. It involves weighing a broad range of factors, both aggravating and mitigating. But where the judge is satisfied that racial motivation has been a factor in the commission of an offence of which the defendant was found guilty, then that factor must always—not "may" —be treated as an aggravating factor.
The great merit of the amendment is that the judges shall be left in no doubt that Parliament regards the commission of a criminal offence on racial grounds as something that can never be ignored in sentencing; it should not be capable of being left out in any case at all as a matter of judicial discretion. Parliament rules and I submit that we should send a clear and unequivocal message to Her Majesty's judges that they must take into account racial motivation when they find it to have existed in the commission of an offence.
My second point is this: there is an added advantage if your Lordships accept the amendment. Those minded to racial violence, and there are many such people, will be deterred because they will know that racial violence, of necessity, will—not "may"—be reflected in the punishment they rightly receive.
Lord Lester of Herne Hill: My Lords, before the noble Lord, Lord Irvine, sits down, perhaps I can make quite clear that there is nothing between us. I was simply seeking to say to your Lordships that the amendment puts into binding form the obligations on judges and prosecutors to take account of racial motivation; whether administratively or by legislation does not matter provided that it is a legally binding obligation. It

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can be done either by the Lord Chief Justice issuing binding guidelines, which would make it an error of law if they were disregarded, or it can be done by legislation.
Lord Irvine of Lairg: My Lords, I am grateful to the noble Lord, Lord Lester. He appreciates that my point is that the time has come for Parliament to speak.
Lord Ackner: My Lords, when I first read Amendment No. 146B, I felt that it was an indication of the obvious and a piece of legislative surplusage. I am quite satisfied that the professional judges are adequately indoctrinated in regard to what should or should not be taken into account particularly by the Judicial Studies Board. What made me change my mind in relation to the amendments is simply this.
As we were reminded, Parliament thought it was appropriate to legislate so that an offence committed while on bail had to be taken into consideration as an aggravating factor. I believe that was directed essentially to the magistrates and that that guidance was thought to be essential in that jurisdiction. If it is essential to put on the statute book another blinding glimpse of the obvious, that an offence committed on bail is an aggravating factor, then, a fortiori, that must apply to the type of offence with which we are concerned.
The second part of the amendment is fit and proper for legislation because, apparently, there are occasions when this material is not provided to the court. It clearly should be and I therefore support both amendments.
Lord Williams of Mostyn: My Lords, I support the amendment on the basis that the criminal law in this country is not a blunt instrument; it is a collection of subtle devices and mechanisms. One of the devices and mechanisms is the infliction as appropriate —for instance, as advocated by the late Lord Justice Salmon —of heavy deterrent sentences. Another is the provision of maximum penalties which are frequently increased and updated. Another is the structure of legislation.
I fundamentally dissent from the proposition put forward by the noble Lord, Lord Lester, that administrative directions would be suitable. I entirely agree with what was said by my noble friend Lord Irvine of Lairg and by the noble and learned Lord, Lord Ackner, a moment or two ago. These matters are too important to be left to administrative directions—far too important. It is not as though we are taking a fresh step. The question of the aggravation of commission of an offence on bail was mentioned; but there are a number of other offences. Speaking at random, one thinks of aggravated trespass committed while in possession of a firearm; one thinks also of the possession of firearms where a particularly aggravating feature is if that possession takes place within a certain number of years of the accused person being released from prison.
The truth is, as the noble Lord, Lord Annan, rightly said, that this is a uniquely vile and poisonous offence. It is not uniquely vile in that its vileness is restricted to the offender; its poison spreads throughout our society. I could see, although I voted for the earlier amendment, that there were legitimate rational arguments against
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introducing a different type of offence. I think there are no rational or practical arguments against this amendment. The noble Lord, Lord Renfrew, said that the amendment is minimal. I think it is almost minimalist. It is a very modest step in terms of what we look for but its consequences as a symbol are extremely important.
If I may allow myself a moment of nostalgia, the noble Lord, Lord Renfrew, and I were virtually exact contemporaries at Cambridge with the present Home Secretary. I have never found myself able to support the present Home Secretary on any single occasion since I have been in your Lordships' House. But I will say this. He is a man who has set his face throughout the years that I have known him against racial attacks, racial violence and racial discrimination. I would on that basis at least ask the Minister seriously to consider whether the Government would be better advised on this occasion to accept the amendment which has been put forward, which has been supported and which really is not capable of having a sensible argument put against it.
Lord Monson: My Lords, I shall do my best in reply to the noble Lord. The noble Baroness introduced this pair of amendments with great skill and great feeling which impressed us all. However, although the amendments go less far than the amendment moved earlier by the noble Lord, Lord Irvine, I suggest that they are still open to a number of objections.
Contrary to what has been suggested both earlier today and at the Committee stage, unprovoked attacks upon innocent people, all of which are utterly deplorable, happen not only for reasons of race or nationality. Bullies—and we are talking mainly about bullies—attack people for a variety of reasons: for reasons of race and nationality of course, but also because the victims may be unusually fat or unusually small, or possibly because they wear thick horn-rimmed glasses; because they appear to be homosexual; because they are disabled—there was an appalling case in Oxford three or four years ago when people in wheelchairs were beaten up because thugs said that they did not like those they described as cripples—because the victims stammer or have a lisp; or because they speak with an accent which offends the thugs either on the grounds of class or of region. All such attacks are equally wrong and all the motives for such attacks are equally deplorable.
There is a more practical reason for opposing the amendment. Let us take the case of a pub late on a Saturday night when everyone has had rather a lot to drink. Two separate fist fights break out over two football matches which have taken place earlier in the day. The first fight takes place between two Englishmen from different parts of the country over a match between two first division clubs. In the course of the fight many insults are hurled regarding Liverpool, Manchester, West Ham or whatever. The second fight takes place over an international match played between an English club and one from, say, Germany, Nigeria or Italy. The fight is between an Englishman and someone from one of those countries. In the course of that fight a number of racial or national insults are hurled. Is it seriously to

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be suggested that the sentence passed upon conviction for those participating in the second fight should be higher than that passed upon those participating in the first? The noble Lord, Lord Irvine, seemed to suggest that it should be. I think most people would think otherwise.
Lord Brightman: My Lords, I shall speak with my customary brevity. I was never a criminal lawyer but had I been I would have regarded it as my duty if I were prosecuting to place information showing racial motivation before the court—that is the side note to the second amendment—and had I been a criminal judge I would have regarded it as correct for me to take racial motivation into account as an aggravating factor. For those reasons I would support the amendment.
6.45 p.m.
Earl Ferrers: My Lords, my noble friend has, as usual, made her case extremely well and I can well understand why she feels so strongly on this matter and why she has decided, together with other noble Lords, to put down the amendment. No one could disagree with the importance of ensuring that evidence of racial motivation for any offence is presented to the court. No one could dispute that the sentence which is passed by the court should reflect the seriousness of those crimes. I agree with the noble Lord, Lord Lester, who said that we all have the same views on this and that it is not a question of the same aims: the question is the means. I agree with the noble Lord. I was more concerned when I heard the noble Lord, Lord Williams of Mostyn, say that the amendment was not capable of having a serious argument made against it. I always get nervous when people make those enormously persuasive arguments because it makes one think that there is a fish underneath somewhere.
I should like to reassure my noble friend that the Government are committed to ensuring that there are systems in place, at all stages of the process, which will flag up the racial element. My noble friend Lord Lucas said that the amendment is a public affirmation of what we intend to do. The noble Lord, Lord Irvine, said that we should send out a clear signal by accepting the amendments. I would remind both noble Lords—I hesitate to remind someone as eminent as the noble Lord, Lord Irvine of Lairg—that what we are doing in statute is not making affirmations or signals or statements. We are actually making statute and law which have to be interpreted by the courts. The effect of the amendments would be to specify in statute duties which are already on the courts and on the prosecution. They would not, therefore, seem to add anything to the existing position.
Courts have to take into account any aggravating and mitigating factors when they decide the seriousness of the offence; and there is already a duty on the prosecution to inform the court of any factors which make an offence unusually serious. Racial motivation is clearly one of them. Where the prosecution establishes that an offence was racially motivated, and where the court is satisfied that it aggravates the seriousness of the offence, the court is already required to take that into
1694
account. It must, however, also have regard to all the other factors of the offence before it comes to a decision about the overall seriousness of the offence. Was the offence, for example, committed against a vulnerable victim? Was it carried out by a gang? Was it racially motivated? All those factors must be weighed up and balanced against any mitigating factors It would not seem right to single out just one of them, bad though that one may be, as so different from all the others that it ought to be specified in statute.
The noble and learned Lord, Lord Ackner, referred to the fact that the Criminal Justice Act 1993 requires the courts to treat the fact that an offence was committed on bail as an aggravating factor when they consider the seriousness of the offence. That is perfectly true but in that instance we took the view that there were particular features of this type of behaviour which justified making it a statutory aggravating factor in every case. Principally, that was the fact that offending on bail is a direct contravention of the trust which is placed in an offender by a court when it placed him on bail. The Government consider it right that an offender should know in advance what would be the consequences of a breach of that trust.
The courts have made clear that an offence which is racially motivated is more serious than an offence which is not. Like most aggravating factors, it bears in a very direct way on the offence which has been committed. But the position as regards offending on bail was not as clear, and that is why a statutory requirement was introduced in that case. Before the change it was not the case that offending on bail would automatically be treated as an aggravating factor. The Government wanted to ensure that the breach of trust which had been demonstrated by the further offending would be taken into account in every case, even when the type of offence was different.
I agree wholeheartedly with my noble friend that the courts need to be provided with the evidence which will enable them to come to a proper decision about the seriousness of an offence. That is why there is already a duty on the prosecution to inform the court of the full circumstances of the offence and the character and the antecedents of the offender.
I can understand the concern of my noble friend about occasions when, despite the views of the police and the victim that the offence was racially motivated, the prosecution has not presented such evidence to the court. It is clearly right—indeed, it is required by the existing general duty—that such evidence should be brought to the attention of the court. But the Crown Prosecution Service is dependent on others for the information it receives and it has no direct contact with victims and witnesses. It can only present evidence which is in its possession. And such evidence can only be adduced in court if it is admissible within the rules of evidence.
To determine what motivates a person to do what he does is very difficult indeed. It is much easier to prove intent. I fear that, even with a specific duty, as proposed by my noble friend's amendment, it will remain very difficult to gather evidence of racial motivation which could be admissible in court. Rumours, innuendo or

1695
local police reports would not be sufficient, and yet the victim and the family will have had their expectation raised that the court would be able to treat the offence as racially motivated.
My right honourable friend the Home Secretary and I have made it clear that we believe that action is required to ensure that the prosecution and the courts may have before them all the information they need. Research is under way on sentencing practices in general and should provide more information about how such evidence is being presented in court and how it is being taken into account.
The noble Lord, Lord Lester, asked whether binding guidelines could be given to the judges. I am bound to tell him that my right honourable friend has no power to issue guidance to judges: that is for the Court of Appeal. Guidelines for the prosecution are a matter for the Crown Prosecution Service. We shall be pursuing that point with the director of the service as an important route to improving the practical handling of these offences. My right honourable friend the Home Secretary made that clear in a major speech on race relations on 4th July at a conference organised by the Commission for Racial Equality.
Lord Annan: My Lords, can I interrupt the noble Earl for one moment? He said that guidance is given to the courts, and I accept his word for that. However, the noble Baroness said that magistrates had received no guidance at all on these matters. Can the Minister comment on that?.
Earl Ferrers: My Lords, guidance to the magistrates would not be for the Home Office to give. It is a matter which should be considered and I shall certainly look into it. I cannot go further at this time.
It is at every stage of the process—not just in court —that evidence of racial motivation needs to be indicated and acted on. It is a matter of tightening the existing procedures in order to ensure that cases are given the right level of attention. And it is a question of ensuring that the police and the Crown Prosecution Service know and understand each other's needs in bringing a prosecution which has a racial element attached to it. I think that this can most effectively be achieved through administrative action rather than by legislation.
I come back to the point at which we started. I certainly have no quarrel with the idea or the thought underlying the amendment of my noble friend Lady Flather. I agree with the noble Lord, Lord Lester, that it is not a question of aims but of means. However, it would be wrong to highlight this one particular factor of all the aggravating factors and enshrine that in statute. That would give it a pre-eminence above all other factors when all other factors, together with this one, should be considered by the judges before sentencing. That is what happens at the moment, and that is the right way to proceed.
Lord Lester of Herne Hill: My Lords, before the noble Earl sits down and since he has been kind enough to refer to my brief intervention, can I clarify the
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position for myself? I made it clear that my attitude would be guided by whether the Government were able to give an assurance that there were in place clear and binding guidelines on judges and on the prosecuting authorities. I listened carefully to what the noble Earl said. As I understand it, there have been no discussions even with the Lord Chief Justice as to whether new guidance needs to be given. As I understand it, it would not be an error in law for a sentencing judge to breach what is in the first amendment at the moment. As regards prosecuting authorities, we are told that it is a matter for further research rather than any settled intention now to give binding guidance. If I am right about that I shall be very grateful to be told. If not, I suggest that the House needs something more if it is not to give favour to these amendments.
Earl Ferrers: My Lords, I do not believe that in all those cases when guidance is given it can be binding guidance because, by its very nature, guidance is what it says: it is a method of guiding judges as to the course of action they should take. We have no power to issue guidance to judges, as I said. I have no doubt at all that judges will have sufficient guidance and that if they do not have it, they will receive it.
It would be wrong for me to say that there are binding guidelines on these matters. I have referred to the position with the Crown Prosecution Service. My right honourable friend said that he had every intention of pursuing this route to improve the practical handling of offences. Guidelines for the prosecution are a matter for the Crown Prosecution Service. We hope that the guidelines will address these points. I cannot give the noble Lord a firmer answer than that.
Baroness Flather: My Lords, I am grateful for all the support I have had. It has been an interesting experience in another way. Those noble Lords who have found reasons why they cannot support the amendments have said that they despise and abhor racially motivated crimes. They are very upset at what happens to families yet they cannot support these amendments nor are they able to bring forward anything else. It is a very interesting situation, is it not? We had long statements from the noble Lord, Lord Monson, about examples. If there are examples of another form of blight affecting this society, please tell us because that is what we should be debating here and now.
We are debating racially motivated crime because it is a blight on your society which I consider I belong to as well. I want to be proud of it. How can you sit here and tolerate that blight and say that there is every reason not to do this or that? If there is another blight on society where people are treated in that way, please tell us. Would you accept it if your wife and children were treated in that way for no other reason except that they may look slightly different? Would you accept it and tolerate it? I believe that you would not. You would be speaking very differently on this occasion. You would find some way of dealing with that kind of crime. You would not say, "Ah well, there are others like the person in the wheelchair".
At Committee stage my noble friend the Minister gave an example of a woman in a wheelchair who had

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stones thrown at her. I believe that that is absolutely despicable and so do you. We all do. But are there thousands and thousands of women in wheelchairs who have stones thrown at them? If there are, then we need a special law to protect women in wheelchairs who have stones thrown at them. But every day, when the Bangladeshi women of the East End take their children to and from school, they have stones thrown at them.
We have been told that we do not want any signal or affirmation; in other words, we do not want empty gestures. These are not empty gestures. I was very grateful for the support from the noble and learned Lord, Lord Ackner and also the noble and learned Lord, Lord Brightman, who is not in his place at the moment. They would not support an empty gesture. Nothing is more telling than support for these amendments from the noble and learned Lords. Together, the amendments will clarify a great deal of the grey area that exists at the moment.
I was particularly disappointed that the noble Lord, Lord Lester, went down the road of administrative guidance. I am grateful to the noble Lord, Lord Irvine, for bringing that point out. We do not want administrative guidance. There is plenty of administrative guidance. It makes no impact. It does not create confidence. If your Lordships are minded to do something, then do something which will create confidence in the minds of those who suffer from this kind of blight. I agree with my noble friend Lord Onslow that there are many aggravating factors. This is one of the aggravating factors. Why are we discussing it once more? We are discussing it because a tremendously large number of people suffer from racially motivated crime.
We have statistics which tell us of the thousands and thousands of people who suffer every day from various kinds of racially motivated crimes. I do not want empty gestures, as my noble friend the Minister has said. I do not want affirmations, and I do not want signals. I do want to feel that Parliament has done what it can to create confidence, and to place a duty upon the prosecution and the judges. That is not an empty gesture. It is an important step forward. Since I have had no assurance from my noble friend, I shall take the opinion of the House.
7.2 p.m.
On Question, Whether the said amendment (No.l46B) shall be agreed to?
Their Lordships divided: Contents, 94; Not-Contents, 150.

Division No.3

CONTENTS

Ackner, L.

Clinton-Davis, L.

Airedale, L.

Craigavon, V.

Annan, L.

Darcy (de Knayth), B.

Attlee, E.

David, B.

Barnett, L.

Dean of Beswick, L.

Blackstone, B.

Desai, L.

Bonham Carter, L.

Donaldson of Kingsbridge, L.

Boston of Faversham, L.

Donoughue, L.

Brightman, L.

Dormand of Easington, L.

Carmichael of Kelvingrove, L.

Ewing of Kirkford, L.

Carnarvon, E.

Faithfull, B.

Carter, L.

Falkland, V.

1698

Flather, B. [Teller.]

Monkswell, L.

Geraint, L.

Morris of Kenwood, L.

Gladwyn, L.

Murray of Epping Forest, L.

Glenamara, L.

Nathan, L.

Graham of Edmonton, L.

Nicol, B.

Harmar-Nicholls, L.

O'Cathain, B.

Harris of Greenwich, L.

Parmoor, L.

Hayhoe, L.

Pitt of Hampstead, L.

Healey, L.

Plant of Highfield, L.

Hollick, L.

Ponsonby of Shutbrede, L.

Houghton of Sowerby, L.

Prys-Davies, L.

Huntingdon, E.

Rea, L.

Hylton, L. [Teller.]

Renfrew of Kaimsthom, L.

Irvine of Lairg, L.

Rennell, L.

Jakobovits, L.

Rochester, L.

Jeger, B.

Roskill, L.

Jenkins of Putney, L.

Seear, B.

Judd, L.

Sefton of Garston, L.

Kilbracken, L.

Serota, B.

Kintore, E.

Shepherd, L.

Kirkhill, L.

Stedman, B.

Lauderdale, E.

Strabolgi, L.

Lester of Herne Hill, L.

Taylor of Blackburn, L.

Lockwood, B.

Taylor of Gryfe, L.

Longford, E.

Tordoff, L.

Lovell-Davis, L.

Walton of Detchant, L.

Macaulay of Bragar, L.

Warnock, B.

Mackie of Benshie, L.

Wedderburn of Charlton, L.

Mallalieu, B.

Wharton, B.

Masham of Ilton, B.

White, B.

Mason of Barnsley, L.

Wilberforce, L.

Mayhew, L.

Williams of Elvel, L.

McIntosh of Haringey, L.

Williams of Mostyn, L.

McNair, L.

Wolfson, L.

Merlyn-Rees, L.

Young of Dartington, L.

NOT-CONTENTS

Aldington, L.

Digby, L.

Allenby of Megiddo, V.

Dixon-Smith, L.

Annaly, L.

Downshire, M.

Archer of Weston-Super-Mare, L.

Ellenborough, L.

Arran, E.

Elles, B.

Astor, V.

Elphinstone, L.

Balfour, E.

Elton, L.

Barber, L.

Ferrers, E.

Belhaven and Stenton, L.

Fraser of Carmyllie, L.

Bethell, L.

Gainsborough, E.

Birdwood, L.

Gardner of Parkes, B.

Blatch, B.

Geddes, L.

Boardman, L.

Gibson-Watt, L.

Borthwick, L.

Gisborough, L.

Boyd-Carpenter, L.

Glenarthur, L.

Brabazon of Tara, L.

Goschen, V, [Teller.]

Bridgeman, V.

Gray of Contin, L.

Brookeborough, V.

Gray, L.

Brougham and Vaux, L.

Greenway, L.

Bruntisfield, L.

Hanworth, V.

Burnham, L.

Harmsworth, L

Butterworth, L.

Harris of High Cross, L.

Campbell of Alloway, L.

Harvington, L.

Carlisle of Bucklow, L.

Hemphill, L.

Carnock, L.

Henley, L.

Carr of Hadley, L.

Hertford, M.

Chesham, L.

Hives, L.

Clanwilliam, E.

HolmPatrick, L.

Clinton, L.

Hood, V.

Colnbrook, L.

Howe, E.

Colwyn, L.

Hylton-Foster, B.

Cork and Orrery, E.

Johnston of Rockport, L

Cornwallis, L.

Kimball, L.

Courtown, E.

Kinnoull, E.

Craig of Radley, L.

Lane of Horsell, L.

Craigmyle, L.

Leigh, L.

Cranborne, V.

Lindsay, E.

Crickhowell, L.

Lindsey and Abingdon, E.

Cumberlege, B.

Long, V.

De L'Isle, V.

Lyell, L.

Dean of Harptree, L.

Mackay of Ardbrecknish, L.

Denham, L.

Mackay of Clashfern, L. [Lord

Denton of Wakefield, B.

Chancellor]

1699

Mancroft, L.

Rodney, L.

Manton, L.

Romney, E.

Marlesford, L.

Salisbury, M.

Massereene and Fenard, V.

Saltoun of Abernethy, Ly.

McColl of Dulwich, L.

Sanderson of Bowden, L.

Mersey, V.

Sandys, L.

Milverton, L.

Seccombe, B.

Monson, L.

Sharpies, B.

Moran, L.

Simon of Glaisdale, L.

Morris, L.

Skelmersdale, L.

Mottislone, L.

Soulsby of Swaffham Prior, L.

Mountevans, L.

St. Davids, V.

Mountgarret, V.

Stanley of Alderley, L.

Moyne, L.

Stevens of Ludgate, L.

Munster, E.

Stewartby, L.

Nelson, E.

Stockton, E.

Nickson, L.

Strange, B.

Norfolk, D.

Strathclyde, L.

Northesk, E.

Strathcona and Mount Royal, L.

Onslow, E.

Thomas of Gwydir, L.

Orkney, E.

Trefgarne, L.

Oxfuird, V.

Trumpington, B.

Pearson of Rannoch, L.

Ullswater, V, [Teller]

Peel, E.

Vaux of Harrowden, L.

Pender, L.

Vinson, L.

Perth, E.

Vivian, L.

Platt of Writtle, B.

Wade of Chorlton, L.

Plummer of St. Marylebone, L.

Wakeham, L. [Lord Privy Seal.]

Pym, L.

Wedgwood, L.

Rankeillour, L.

Wise, L.

Rawlinson of Ewell, L.

Wynford, L.

Reay, L.

Young, B.

Rodger of Earlsferry, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.11 p.m.
Baroness Flather Baroness Flather moved Amendment No. 146C:
Before Clause 141, insert the following new clause:
("Duty on prosecution to place information showing racial motivation before court

.—(1) In relation to a prosecution for any offence it shall be the duty of the prosecuting authority to place before the court any information or material tending to show that the offence was committed with a racial motivation.

(2) In this section 'racial motivation' means a motivation on grounds of colour, race, nationality or ethnic or national origin").

The noble Baroness said: My Lords, I shall not speak to this amendment; but I shall divide on it, too. I beg to move.
On Question, amendment negatived.
Clause 141 [Offence of causing intentional harassment, alarm or distress]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 147:
Page 116, line 6, leave out from ("offence") to end of line 14 and insert:
("on racial grounds he—

(a) commits any trespass or nuisance whereby any occupant of any dwelling is likely to be caused harassment, alarm or distress, or

(b) uses words or behaviour or displays any writing, sign or other visual representation which is threatening, abusive or insulting within the hearing or sight of any person likely to be caused harassment, alarm or distress thereby").

The noble Lord said: My Lords, we have had full debates on these racial issues and I shall be brief. I assure the noble Earl that in supporting the amendment I shall not maintain that there are no serious arguments against it any more than I would expect him to borrow a leaf from the book of the noble and learned Lord, Lord Hailsham, and oppose the amendment on the basis that
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it is seriously intellectually flawed. I shall be more modest in my presentation, as I imagine he will be in his reply.
Clause 141 is a general harassment offence not specifically aimed at racial harassment. It does not meet the case that we urgently require a new offence of racial harassment. There are other objections to Clause 141. There will be greater difficulties in proving the Clause 141 offence than the existing offence under Section 5 of the Public Order Act. Under that section, it is necessary only to prove that the particular behaviour was likely to cause someone to be harassed. Thus the victim does not have to participate in the trial and expose himself to the risk of reprisal. The required evidence can be given by police officers or by local authority officers.
The Clause 141 offence requires proof that someone has been caused harassment, alarm or distress and that will normally require evidence from the victim and therefore expose the victim to reprisals. Although I do not speak to the amendments now, I believe that that is the purpose of Amendments Nos. 147ZA and 147D in the name of the noble Lord, Lord Lucas. If I am right in that, I shall support those amendments.
Moreover, when addressing the deficiencies of the Government's Clause 141, in some cases—for example, graffiti on public walls or racist chanting in the street —there will be no identifiable victim. Therefore, Clause 141 will not even reach those situations. Further, strangely—and I invite explanation backed up by example from the noble Earl—it is a defence for a defendant who has intentionally used threatening, abusive or insulting language to another, which in fact has caused the victim harassment, alarm or distress, that he acted reasonably. How can such conduct be justified as reasonable in any circumstances? I would welcome the Minister giving an explanation by way of example.
Nor do I understand—and the noble Earl gave no explanation in Committee—why such conduct, if committed within a dwelling and causing harassment, alarm or distress to another within that building, does not constitute an offence. Again, I invite the Minister to give an explanation. As a result of the existing deficiencies in Clause 141, that clause does not effectively strengthen the law on harassment in general. Nor does it recognise the need for the effective protection of ethnic minorities. As the noble Baroness, Lady Flather, so eloquently reminded us, their lives can literally be made hell by persistent harassment ranging from verbal abuse, being spat upon and stoned to the posting of excrement through their letter boxes. This Bill does nothing to alleviate the plight of those people.
The addition of trespass and nuisance in the amendments to which I am speaking cater for the kind of behaviour typical of harassment on racial grounds. The amendment will cover activities such as daubing graffiti on walls, pushing excrement through letter boxes, dumping litter and trespassing into a garden or a front yard.
The third amendment provides for punishment of 12 months' imprisonment on indictment. Such a penalty in an appropriate case would appropriately reflect the gravity of some incidents of racial harassment. The noble Earl may say that racial harassment should attract

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no greater penalty than harassment in general. That is cold comfort to those who suffer racial harassment as a daily blight on their lives. I shall not revisit the arguments that we exhaustively had on Amendment No. 146. I say only that, in the same way as racial violence, racial harassment, selects its victim on the basis of the accident of birth and for that reason it is especially pernicious and merits distinct punishment.
7.15 p.m.
Lord Harris of Greenwich: My Lords, I agree with the noble Lord, Lord Irvine of Lairg. As was said by the noble Baroness, Lady Flather, in the previous debate, we face the situation in which whole communities in East London and elsewhere are living in fear as a result of a series of activities of the kind described by the noble Lord, Lord Irvine. There is a fear of assault, of excrement being pushed through their letter boxes and of fire bombing. Many of those people—often they are women living on their own or with small families— have an inadequate grasp of English and they live in a state of constant fear.
We are talking about a major emerging social problem in this country. It is now more recognised by the police than it was a few years ago and it requires some action as regards the statute book. To sweep the issue aside and not to take action even in this most limited area on the lines as advocated by the noble Lord, Lord Irvine, would be a profound mistake. We are dealing not only with the fear of people living in such communities but also with the social cohesion of our country.
Lord Hylton: My Lords, the noble Earl may just recall that I wrote to him on this subject possibly two or more years ago. He replied in his usual helpful way. But I do not believe that we have made a great deal of progress in that time in preventing such behaviour. I support this series of amendments. If they were accepted by your Lordships, it would show that this country is playing its part in Europe in combating a rising tide of very unpleasant racial behaviour.
Lord Moyne: My Lords, I may be wrong but Amendment No. 147 seems to be worded in such a way that harassment on grounds other than racial grounds would be permitted.
Earl Ferrers: My Lords, the Government's intention in tabling Clause 141 was to provide higher penalties for the more serious cases of harassment, particularly where it occurs on racial grounds. Your Lordships approved that in Committee.
I remind your Lordships that Clause 141 states that:
"A person is guilty of an offence if. with intent to cause a person harassment, alarm or distress, he … uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or … displays any writing, sign or other visible representation which is threatening, abusive or insulting".
I should have thought that to push excrement through someone's door would surely be an act which would fall fairly and squarely within that part of the Bill.
The noble Lord said that he would not use the words used by the noble Lord, Lord Williams of Mostyn, in describing his case as "unanswerable" and he requested
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me not to use the words of my noble and learned friend Lord Hailsham and say that the amendment is seriously flawed intellectually. I assure the noble Lord that I shall not do that. The noble Lord asked me to use more reasonable language. I merely say that the amendments turn the clause on its head. They bring into the criminal law, not the most serious cases of harassment, but the most minor categories of anti-social behaviour, and they raise the penalties way beyond that which Parliament has approved for far more serious offences.
First, I take the extension of the offence to include not just harassment but any trespass and nuisance. It is already an offence under Section 5 of the Public Order Act 1986 to engage in threatening, abusive or insulting behaviour or disorderly behaviour which is likely to cause harassment, alarm or distress. That is the lowest offence of all the Public Order Act offences. But Amendment No. 147 would create an even lower offence by making it a criminal offence to trespass or to cause a nuisance which is likely to cause harassment to the occupant of a dwelling.
We all know of minor irritations between neighbours; for example, garden bonfires or music being played too loudly. These can be very tiresome to a person quietly sitting in his home, but I really cannot believe that these should now become criminal offences. Furthermore, this sort of behaviour would be a criminal offence only where it was committed on racial grounds. That cannot be right. But even if it were, I cannot see how a court is supposed to establish that some minor act of neighbourly irritation was carried out on racial grounds.
As regards Amendment No. 148, the test for that new offence is whether a reasonable person would have suspected such behaviour to cause harassment. That appears to be an explanation of what is meant by "likely" to cause harassment. The courts are already well used to understanding the ordinary meaning of "likely to cause harassment" from its use in Section 5 of the Public Order Act. This additional formulation lowers the test considerably by moving it from behaviour which is "likely to cause harassment" to "behaviour which a reasonable person would suspect would cause harassment". It clearly does not make sense to lower the tests in that way. We would not wish to make a criminal offence which is based on suspicion of the effects of the most minor nuisances.
The noble Lord, Lord Irvine of Lairg, asked what is a "reasonableness" defence. I believe that such a defence would be shouting to alarm a person who you find breaking into your car. The noble Lord said that the provisions do not affect what happens in dwellings. That is perfectly true because this is public order legislation and is not about domestic conduct. It would be wrong to incorporate that into public order legislation.
Then I turn to the penalty—Amendment No. 149. For behaviour which is less serious than anything which is at present in the Public Order Act the noble Lord proposes a maximum penalty of 12 months' imprisonment. Section 4 of the Public Order Act relates to behaviour such as making a person fear the immediate use of violence against him or of provoking a person to unlawful violence. That is reasonable. That

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is clearly a serious matter and it rightly attracts a penalty of up to six months' imprisonment and/or a fine. But for the very minor behaviour which would be covered by the noble Lord's amendment—for example, lighting a bonfire next door—the maximum penalty would be twice as high—namely, 12 months' imprisonment—and the offence could be tried before a Crown Court. I think that we must keep some sense of proportion in the penalties within this Act. The noble Lord's amendment manifestly does not do that.
The existing Clause 141 covers the gap in the law which has been identified and I hope that the noble Lord, Lord Irvine, will realise that his amendment is not suitable for this part of the Bill.
Lord Irvine of Lairg: My Lords, the House is now well aware of the issues of principle which separate the noble Earl and myself. No point will be served at this stage by rehearsing those differences in any detail because I recognise that there is much merit in concluding before the Dinner Break the amendments which deal with racist crime.
But there is one point which I shall not leave unanswered. The burden of the noble Earl's argument was that, if the amendments are accepted, they will bring minor trespasses within the criminal law. He gave an example of bonfires. He must appreciate that those minor trespasses, as he describes them, become criminal under the amendment only if they are committed on racial grounds. That is the short answer to the objection which he raised.
Having regard to the hour, and having regard to the vote that was secured on the previous amendment, I do not press this amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 147ZA:
Page 116, line 7, leave out ("a person").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to my Amendments Nos. 147D and 148B. These amendments are concerned with the tests which a class of offence has to pass in order to fall under Clause 141. Those tests ask: does the worst imaginable form of this class of offence deserve the maximum sentence proposed?
The first test which the Government propose is intent. They contend that someone who harasses but does not intend to harass should not face a prison sentence. I agree with that. I did not always agree, but my noble friend, who kindly wrote me a long and informative letter after the Committee stage, has changed my mind.
The second test that the Government propose is that actual harassment should have occurred. Perhaps my noble friend will give the House a concrete example of a worst imaginable offence which would pass the test of intent but fail the test of actual harm and for which a prison sentence would be inappropriate. I cannot think of one but I can imagine instances where serious crimes would fail this test because victims were too frightened to testify.
Many crimes that carry a prison sentence do not require actual harm to be proved. Some excellent examples are those associated with possession of
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firearms, where we are to be invited to increase the penalties later this evening. My Amendments Nos. 147ZA and 147D would remove this test of actual harm. I believe that this removal would hurt no one unjustly and might prevent injustice.
My Amendment No. 148B is aimed at another test: the border between private and public acts. As the Bill stands, if I harass my neighbour over the front-garden fence I am in no danger. If I harass him in exactly the same way as he steps out on to the pavement I can be charged. I do not believe that that is the best boundary for the offence. Much grief is caused to minorities by the actions of their neighbours. Therefore, what should the boundary be? It is clear to me that what someone does within his own dwelling is not an appropriate subject for a public order offence.
My amendment would be a little broader. It would exempt acts within any dwelling. One might argue that it should be a bit wider still and exempt, say, acts which are not visible or audible from a third dwelling or a public place. In any event, I believe that the test as it stands is drawn too wide and that it will exempt behaviour that it should catch. I beg to move.
7.30 p.m.
Lord Monson: My Lords, I hope that the noble Lord, Lord Lucas, will forgive me if I do not comment upon his amendments. However, my Amendments Nos. 147A, 147B and 147C have been grouped with his and I should like to take the opportunity to speak to them. As drafted, Clause 141 seems to those few people who have had the time to study it to go somewhat over the top. For example, it provides that a person who on a single occasion intentionally uses insulting words to another person which cause that person distress can, if convicted, be sent to prison for six months. That is an extraordinary infringement of the traditional British right of free speech.
Our tradition of free speech tends to be rumbustious and outspoken and is, by definition, often rude and boorish. Rudeness and boorishness certainly ought not be encouraged; indeed, they should be discouraged, but surely not by bringing in the heavy hand of the criminal law. Social pressures should do the trick.
Despite the let-out, so to speak, of reasonableness —which is a gamble because no one can be sure whether the courts will decide that a particular incident or course of behaviour was reasonable—the clause could inhibit hard hitting exchanges of views at, for example, Speakers' Corner. It could even inhibit free speech in pubs, where passions often intensify after a few drinks. Indeed, I cited pubs when speaking to an earlier amendment.
Let us take motoring, for example. It is an activity where passions always run high. Motorists will freely use four-letter words to other motorists from the safety of the steel box in which they are travelling, in a way that they would never do if they were pedestrians encountering other pedestrians on the pavement—and that has nothing to do with the size or strength of the pedestrian in question. Therefore, as the clause stands, two motorists shouting insults at one another after one

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of them has dented the bumper of the other's car could, in theory, find themselves going to prison for six months.
My amendments would introduce some minor safeguards. In Committee, the noble Earl explained that, for various reasons, the word "persistent" which implies repeating a particular offence or action more than, say, three or four times, would be unacceptable to the Government. For that reason, I propose instead the word "repeatedly" which means on more than one occasion. Therefore, two occasions would suffice to trigger the offence. That would prevent prosecutions for a one-off verbal incident which might occur when tempers are frayed.
I turn now to the word "grossly". I have no problem with the words "threatening" or "abusive"; indeed, there is little ambiguity about either of them. However, the word "insulting" is another matter given the fact that people are insulted by different things. For example, a motorist may shout to another motorist who has just scraped the paint off his brand new car, "You silly little twerp, you must have an IQ of minus 50!". If the other motorist were six foot tall and a member of MENSA he would simply laugh: whereas if he were five foot two and educationally somewhat backward he would, in all probability, be highly insulted. Therefore, qualifying the word "insulting" by the word "grossly" introduces a necessary element of objectivity and would thereby cut down the number of expensive and unnecessary prosecutions.
Lord Irvine of Lairg: My Lords, I shall be brief. I support the amendments tabled in the name of the noble Lord, Lord Lucas, for the reasons that he outlined so economically. However, I urge the noble Earl not to accept the amendments to which the noble Lord, Lord Monson, has just spoken. I have already made my criticisms of Clause 141 and have sought to define the deficiencies from which, I submit, it already suffers.
If the amendments tabled in the name of the noble Lord, Lord Monson, were accepted, Clause 141 would then become a dead letter. I disagree with the noble Lord's remarks regarding his proposed addition of the word "repeatedly". That word would emphatically not be construed as covering one or two occasions. Indeed, repeatedly connotes a continuous course of conduct. I see. that the noble Lord wishes to respond. I give way.
Lord Monson: My Lords, I am much obliged. Will the noble Lord accept that I took great care to look up the word "repeatedly" in a number of dictionaries in the Library? Indeed, my research confirmed my interpretation of the word.
Lord Irvine of Lairg: My Lords, I have been involved in too many cases in the courts concerning the construction of a word used in a statute to rely upon its meaning in a particular context from the Oxford English Dictionary, which gives a list of possible meanings. I suggest that "repeatedly" would emphatically not be construed as covering one or two occasions and that it would require a continuous course of conduct.
Moreover, in my respectful submission, if there was a single occasion of a person, with intent, using
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threatening, abusive or insulting words and, as a result, causing harassment, alarm or distress, that should be an offence just as the clause provides. Therefore, I urge the Minister to stand firm and reject the amendments of the: noble Lord, Lord Monson.
Earl Ferrers: My Lords, I like being able to meet the requests of the noble Lord, Lord Irvine of Lairg. He wants me to stand firm and I can tell him that that is precisely what I shall do. All the amendments seek to adjust the balance between addressing the suffering which is caused to the victim and extending the law beyond what is necessary to do that effectively. We believe that we have the balance right.
Amendment No. 147A, which is tabled in (he name of the noble Lord, Lord Monson, seeks to limit the offence to behaviour which takes place "repeatedly". It was certainly our intention to bring forward a clause which would deal with persistent harassment. But we found it impossible to draft a satisfactory definition of persistence which did not create as many problems as it solved. For example, should the repeated behaviour take place within one week, one month, one year, or what? Should previous convictions for the same offence mean that a further offence counted as "repeatedly"? What about other offences occurring at the same time which are more serious? Should they not be considered relevant?
Such problems are all different and, indeed, almost insoluble. For those reasons, we chose to concentrate on the single offence, with the seriousness marked by the intent and the actual distress which is caused to a victim.
There are other amendments which would replace; the word "insulting" with the words "grossly insulting". The wording that we have used is taken from Section 5 of the Public Order Act 1986. I believe that those provisions should stay clearly in step. I am not sure that the courts would relish determining the difference between insulting words and grossly insulting words; and, indeed, the victim would certainly have his own perceptions of the offensiveness of the remarks. I believe that it would be wrong to move away from the terms that are already used in the Public Order Act.
I turn now to Amendment No 147ZA. My noble friend Lord Lucas is concerned that it should not be necessary to prove that the defendant intended to harass, alarm or distress a particular person. I can understand why he may think that such a change is needed—
Lord Lucas: My Lords, I must have used the wrong words. I meant to say exactly the opposite. I entirely approve of the test of intent. Indeed, through the letters that he so kindly sent me, my noble friend has convinced me that the word "intent" should be in the Bill. On that point, I totally support the Government.
Earl Ferrers: My Lords, that is fine. Let us move on, then, to Amendment No. 147D, which would make a substantive change to the new offence as it would remove the requirement that a person actually be caused harassment, alarm or distress. I can sympathise with the intentions behind this amendment. When formulating the offence, we did consider whether it would be enough for the conduct to be likely to have the effects in

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question, which is the present test under Section 5 of the Public Order Act 1986. However, we concluded that such a test was necessary if a person is to face imprisonment for his conduct.
Victims of racial harassment often already have to be identified or give evidence in court, as there are frequently no other witnesses to the incident. There are provisions in place that enable courts to accept as evidence statements made to the police by victims unable to attend court out of fear. The Government are also proposing a number of initiatives to improve the way all victims and witnesses are treated. But, it is an inescapable fact that it is often very uncomfortable to be a witness in a system of open justice. There are measures we can take to allay this discomfort, but we cannot remove it.
Amendments Nos. 148A and 148C would extend the scope of the new offence to cover intentional harassment that takes place within buildings. Amendment No. 148B would extend the scope of the offence to cover harassment that takes place when the defendant and victim are inside different dwellings. Whilst I can see the potential mischief these amendments seek to address, we have no evidence to suggest that the similar existing restrictions on Sections 4 and 5 of the Public Order Act are presenting any practical problems in dealing with harassment. It is much more common for people to be abused or threatened by others outside the home or in the street. The construction of the new offence reflects the public order nature of the Act on which it is based. We do not believe it would be acceptable to extend the powers contained in this Act into the realm of all domestic disputes, which would be the effect of my noble friend's amendments. Nor do we believe it would be desirable for the new offence to be out of kilter with the rest of the Public Order Act. It is designed to fit in between the existing offences under Section 4 and 5 of the Public Order Act, which have a similar structure.
These are all minor safeguards and adjustments which are proposed to this part of the Bill. However, we think that the Bill has the position about right and that it is better without the amendments. I hope the noble Lords will not press the amendments.
Lord Lucas: My Lords, of course I shall not press the amendment at this time of night; supper is waiting for us. But I should just like to ask my noble friend if he will at some time before Third Reading reply to the question which I asked him, which is: can he name a specific offence which ought to fail the test that actual harassment should have occurred? In other words, what exactly is that test designed to exclude from the scope of this clause? Having said that, I shall be very happy to withdraw the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147A to 149 not moved.]
[Amendments Nos. 150 and 151 had been withdrawn from the Marshalled List.]
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 the Report stage begins again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Betting and Lotteries (Northern Ireland) Order 1994
7.44 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield)The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield) rose to move, That the draft order laid before the House on 24th May be approved.
The noble Baroness said: My Lords, the purpose of the draft Betting and Lotteries (Northern Ireland) Order 1994 is to introduce provisions broadly in line with the corresponding provisions already in force in Great Britain by the enactment of the National Lottery etc. Act 1993. It may be helpful if I comment briefly on the order and then say a few words about the detailed provisions.
The order amends current legislation in this area principally to enable charitable organisations and football pools to compete more effectively with the forthcoming national lottery. The Government included provisions in last year's National Lottery etc. Bill to enable societies' lotteries to counter possible loss of revenue arising from the introduction of the national lottery. They also made concessions to the football pools industry which had regarded the new lottery as unfair competition. In addition, some further controls on lotteries were introduced. This order contains the corresponding appropriate measures for Northern Ireland. It allows a society to sell tickets in a private lottery to non-members of that society while they are on the society's premises.
In relation to the football pools, the order removes the current restrictions which prevent premises being used for the delivery of football pool coupons and related stake money. It also reduces the age limit for participation in the football pools from 18 to 16 years.
The order increases the maximum prize in a society's lottery from £8,000 to £25,000 in amount or value or 10 per cent. of the lottery proceeds, whichever is the greater. The requirement to use at least 30 per cent. of the lottery proceeds for prizes is omitted. It also introduces new, or amends the existing, rules on advertising, donation of expenses, the frequency of lotteries and other miscellaneous matters.
The order will, for the most part, bring Northern Ireland law into line with the corresponding provisions of the law in Great Britain. In Great Britain, however, the maximum proceeds for a single lottery have been increased to £1 million and the maximum annual proceeds of all lotteries promoted by one society are now £5 million. In view of Northern Ireland's smaller population, it was decided to retain the present equivalent maximum limits of £80,000 and £1 million.
The proposed changes attracted few responses from our consultation. It may be, however, that this was because the White Paper on the national lottery was

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issued to a wide range of interests in Northern Ireland and my department took account of the views expressed on the local lottery law as a result of that exercise. The order will, in my view, make a significant contribution towards the fund-raising efforts of charitable organisations and assist the operation of the football pool industry in Northern Ireland. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 24th May be approved.—(Baroness Denton of Wakefield.)
Lord Prys-Davies: My Lords, I thank the Minister for introducing and explaining this short order. What is important is that the changes which will be brought about by the order broadly reflect the views and the values of the residents of Northern Ireland. For that reason I would appreciate hearing from the Minister —if she can tell me—precisely what consultations preceded the drawing of the order. How wide were those consultations? For what period of time did the consultations proceed? Was the draft of the proposed order amended in any way to meet the objections or the comments raised in the course of such consultation?
I read the Official Report of the debate on the order which took place in another place on 28th June. I have no fresh points of detail to raise but it would be helpful if the Minister could deal with just two questions which were the cause of some concern in the other place.
First, are the Government fully satisfied that the amendments to the general law of Northern Ireland embodied in the order will provide adequate protection to the smaller charities serving the local communities against the impact of the national lottery? It would be a mischief crying for redress if the national lottery were to undermine the spirit of giving which has sustained local charities for generations. It seems to me that when she introduced the order the Minister went a long way to giving the assurance that we require.
My second question seeks information about the future of working men's clubs in Northern Ireland. Do the Government have any plans for future legislation relating in particular to working men's clubs and to friendly and benevolent societies in Northern Ireland? That question was of particular concern to my honourable friend Mr. William O'Brien in another place. As the noble Baroness, Lady Denton, is the Minister with special responsibility for such clubs in Northern Ireland I trust that she will be able to take the House into her confidence.
With those few comments I am pleased on behalf of these Benches to support the order.
The Viscount of Falkland: My Lords, on these Benches we feel that the order in itself is relatively uncontentious. However, one or two points are raised by the order and I hope that the noble Baroness will be kind enough to comment on them. She has already explained the order and what it relates to very clearly.
Obviously, the national lottery will have some effect on Northern Ireland. We do not expect a great deal of income to flow into Northern Ireland as a result of the lottery. So far as I know, there are few, if any, shareholders in Northern Ireland of the firm which won
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the contract to operate the lottery. We on these Benches have always been keen to see that the proceeds for distribution from the lottery are evenly spread throughout the United Kingdom. We still maintain that that is desirable. I believe that some comfort will be derived from the order as a result of what the noble Baroness said.
Many small communities rely on their own lotteries in order to fund activities which help to cement community relations. It would be sad if, as a result of the national lottery, those smaller lotteries were to suffer in any way.
I am curious about one or two points relating to the 1985 order and why the Government have not to date seen fit to alter them. One is the ticklish question of competitions which, according to the law, require some element of skill in order to win a prize. In a recent competition in Northern Ireland purchasers of a chocolate bar qualified for a prize if they had a winning wrapper. It seems that in Northern Ireland the law has not been enforced in that area. It is an important point and I would value the response of the noble Baroness in relation to the importance of enforcing that law or whether steps should be taken to repeal it.
Overall, the order appears to be sensible. I do not know whether other noble Lords have any views about reducing to 16 the age of those who are qualified to take part in football pools. It seems that generally throughout the United Kingdom public policy as regards gambling has changed, almost imperceptibly. I have no strong feelings on the matter myself, but one has only to take the recent case of cash betting on Sunday racing going through on the nod. There appears to have been a change, and I wonder whether the noble Baroness can say whether the consultation which has taken place in Northern Ireland indicated any community view reflecting concern about the change of attitude towards gambling, of which lotteries are a part.
Baroness Denton of Wakefield: My Lords, I thank the noble Lord and the noble Viscount for their input on the order, which they have welcomed overall. Both raised specific points, which I shall try to answer.
I assure the noble Lord, Lord Prys-Davies, that the consultation process was wide and followed the normal arrangements for consultation on proposals for draft Orders in Council. The proposal was published in December 1993 with comments required in February 1994. No changes were made to the draft order as a result of that consultation process. As I indicated earlier, I believe that that was mainly because the consultation on the National Lottery etc. Act itself had been wide and in drafting the order officials had taken into account the Northern Ireland comments on the Act. That meant that we were able to represent the views that we had heard.
I repeat the assurance that my honourable friend gave in another place that we shall be monitoring closely the effect of the national lottery on small charities. As the noble Lord, Lord Prys-Davies, said, there is a great ethos of charitable giving in Northern Ireland. It is my expectation that such is the affection and involvement of people in Northern Ireland for their own specific

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charities that we shall see much continued support for those charities. However, as I said, the matter will be monitored closely.
I assure the noble Viscount, Lord Falkland, that Northern Ireland will be represented on the UK council for the national lottery. We shall try to ensure that Northern Ireland benefits. There are many areas in which it could well benefit. I am sure that people will make those areas known. I can assure the noble Viscount that the Minister also has a loud voice on such occasions.
The question which the noble Viscount, Lord Falkland, raised about prizewinners and the lack of a skill element in competitions is outside the scope of the order. However, I shall investigate the point and write to him.
As regards the reduction of the age for involvement in football pools to 16, I think that it would be wrong for Northern Ireland to be different from the United Kingdom. There was some comment on the point from the community but no widespread objection.
The noble Lord, Lord Prys-Davies, raised the question of working men's clubs. A separate review of the law on registration of clubs in Northern Ireland is being carried out at present, as indeed is a review of the licensing laws. Both are closely interlinked. I believe that I am to see the last delegation on that issue this month. Following that consultation we shall bring forward proposals for change, which will be set out in a draft order. Therefore, that subject is high on the agenda.
I hope that I have answered most of the questions that were put. I shall write to noble Lords in respect of those I was unable to answer. I commend the order to the House.
On Question, Motion agreed to.

Rates (Amendment) (Northern Ireland) Order 1994
8 p.m.
Baroness Denton of Wakefield Baroness Denton of Wakefield rose to move, That the draft order laid before the House on 14th June be approved.
The noble Baroness said: My Lords, this is a brief order which nevertheless makes several important changes in Northern Ireland's rating legislation, principally to the Rates (Northern Ireland) Order 1977. For a number of years, the rating system in Northern Ireland has been significantly different from that in the rest of the United Kingdom and that difference has, if anything, increased since the introduction of council tax.
The different legislative regimes stem mainly from the fact that in Northern Ireland central government and its agencies provide up to 90 per cent. of the services; which in Great Britain are the responsibility of local authorities. In the very different circumstances the Government have no plans at present to make fundamental changes in the Province's rating system.
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But although that remains the situation, it is necessary to review the legislation regularly to ensure that it is kept fully up-to-date. The order is intended to do just that.
I should like briefly to mention the main articles of the order. Article 3 will overcome an inconsistency in the existing principal rating legislation. At present, where properties have been structurally altered and come back into use, the degree of backdating of rate liability can vary depending on whether or not the properties have remained in the valuation list during the period of alteration. This illogical distinction was not intended when the 1977 rates order was in preparation. The present amendment therefore provides a common method of determining the date of rate liability for all properties which have been out of occupation because of structural alteration.
Article 3 corrects a second defect in the primary legislation. Where at different times two or more structural alterations have been made to a property, the article will permit the issue of separate certificates of alteration for each stage, with retrospective effect where appropriate. Under existing legislation, a certificate of alteration must reflect the state and circumstances of an altered hereditament at the date of issue of the certificate. It cannot be backdated to reflect staged alterations. This absence of a backdating provision can result in a loss of rate income to the Exchequer. It can, however, apply also in cases where the ratepayer would be at a disadvantage; for example, where premises are damaged and partly out of use for a period but are restored to full use before the district valuer takes action. In the absence of a facility to backdate, the opportunity to seek an abatement for the period out of use would be denied to the ratepayer.
Article 4 will clarify the provisions relating to rate relief for institutions for the disabled in Northern Ireland. It provides for the removal of anomalous references in the present legislation to use for profit and also to old people's homes, neither of which appear in the equivalent Great Britain legislation on which the Northern Ireland legislation in this area was based. It also makes provision for the reimbursement of district councils for the rates incomes foregone where rate relief is granted by way of rate rebate to institutions for the disabled. Councils are losing revenue under the present regulations and the new order will correct the position.
I said earlier that this was a somewhat brief order. It is also, in part, rather technical but I hope that the House will agree that these are useful and important changes which have practical and beneficial consequences for ratepayers in Northern Ireland. I beg to move.
Moved, That the draft Order laid before the House on 14th June be approved.—(Baroness Denton of Wakefield.)
Lord Prys-Davies: My Lords, again, I thank the Minister for her explanation of this technical order which nevertheless alters the law in Northern Ireland in at least three main ways.
I make this general comment. This is the second order to have been made to amend the principal rates order of 1977. To that extent, Northern Ireland has been spared the traumatic and unfair upheavals which have

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affected the householder in the remainder of the UK. However, I am not sure that I have correctly grasped the significance of all the provisions of Article 3. I am not sure of the meaning of the words "altered hereditament", or "structural alterations" within the order. I must confess that I have not been able to find the principal order; that may explain my state of ignorance. But it would be helpful if the Minister could say how she defines and applies the phrase "alteration … by reason of more than one event".
When does the one event begin? When does it end?
We welcome very much the rebate for institutions for the disabled in Article 4. Perhaps I may ask the Minister for an explanation of paragraph (7) of the new Article 31B. In what circumstances will a building qualify for a rebate for a period which is part only of a rebate period? One would have thought that it should qualify for a rebate for the entirety of the rebate period. The answer to that question is not immediately apparent and it would be helpful if the Minister could say more.
The paragraph raises another question. If we assume that without the applicant being at fault in any way the department has mistakenly repaid too large an amount, or allowed too large a rebate, is it intended that the department should be able to bring an action for recovery against the owner of the building, and his or her personal representative, at any time within six years? Alternatively, in those circumstances, should there be a shorter period of limitation?
My last point is purely a drafting one. It arises out of Article 5 which exempts from rates certain industrial fishing hereditaments. It applies where the right to fish is exercised by means of a fishing engine. What does a fishing engine mean? It is defined in the schedule to the principal order of 1977. But by virtue of this order, and in particular paragraph (3) (a) of the order, that definition is omitted and is replaced by reference to the definition which I found in the Fisheries Act (Northern Ireland) 1966 for the purposes of that Act. We understand that legislation by reference is perfectly legitimate and indeed often unavoidable. On the other hand, in the circumstances of this order, I should have thought that it would be advantageous for the reader if the 1966 definition had been set out on the face of the order instead of having to trace the 1966 Act. I should not have thought that that would cause the draftsman too much difficulty. On the other hand, I am equally certain that the draftsman has a very good defence to the comment.
With those few questions, on behalf of these Benches, I am happy to welcome the order.
The Viscount of Falkland: My Lords, we on these Benches have nothing to add. The order clearly amounts to adjustments and fine-tuning of a system which is obviously working well in its application. Otherwise the Government would have sought to bring it into line with other parts of the United Kingdom and the system which was referred to by the noble Lord, Lord Prys-Davies. I hope that the order will continue working satisfactorily, as it implicitly seems to be. I look forward to the noble
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Baroness's answers to the points raised by the noble Lord on the Labour Benches, particularly concerning the fishing engine, about which I had intended to ask.
Baroness Denton of Wakefield: My Lords, perhaps I may start my response by saying that I am by no means a drafting expert. I shall endeavour to answer the noble Lord's questions. However, I doubt that I can get myself entirely into the draftsman's mind.
On the issue of the structural changes, the order simply changes the way in which the backdating can take place. It does not change any of the meaning. Local authorities have concern for building regulations and they identify what the structural change is.
The other matter which the noble Lord queried was whether it was possible for an overpayment to be pursued for six years. The answer is that six years is the limited period, and yes, during that period, it can be pursued. However, as it is taxpayers' money I suspect that the noble Lord will agree that it would be wrong to be casual in looking for recovery of the money.
On the question relating to the drafting on the fishing engine and the omission from the face of the order, the order reclassifies salmon and eel fisheries as properties not to be treated as hereditaments. Consequently, references to fishing engines in the main order as hereditaments have had to be removed and we have reverted or referred back to the meaning assigned in the Fisheries Act (Northern Ireland) 1966. I hope that the House will accept the order, I commend it to your Lordships.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.12 to 8.45 p.m.].

Criminal Justice and Public Order Bill
Further consideration of amendments on Report resumed.
Lord Rea Lord Rea moved Amendment No. 151 A:
After Clause 141, [Formerly Amendment 138]
Insert the following new clause—
("Promotion of tobacco products Publication of advertisements for tobacco products
.— (1) Subject to subsection (2) and section (Defences in proceedings under section (Publication of advertisements for tobacco products)) below, if any person publishes or causes to be published an advertisement for a tobacco product, he shall be guilty of an offence.
(2) Subsection (1) above does not apply to the publication of an advertisement inside a shop used for the retail sale of tobacco products if the advertisement is not capable of communicating directly with persons outside the shop and—

(a) the shop is used wholly or mainly for the retail sale of such products; or

(b) the advertisement—

(i) contains only information as to the price of tobacco products, a warning of the damage to health caused by the use of tobacco products and such other information as the Secretary of State may prescribe by regulations made by statutory instrument; and

(ii) complies with such other requirements as may be so prescribed;

and in relation to any case where only part of a shop is used for the sale of tobacco products or access to a shop ('"the inner shop")

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can only be obtained by passing through another shop, references in this subsection to the shop shall be taken as references to that part or, as the case may be, to the inner shop.
(3) A person guilty of an offence under this section is liable—

(a) on summary conviction to a fine not exceeding level 4 on the standard scale, or

(b) on conviction on indictment to a fine.

(4) In this section and sections (Defences in proceedings under section (Publication of advertisements for tobacco products)) to (Power to prohibit or restrict promotion of smoking or tobacco) below "tobacco product" means a product made wholly or partly of tobacco for the purpose of being smoked, sniffed, sucked, chewed or otherwise used orally or nasally.
(5) In this section an "advertisement for a tobacco product" includes any form of communication which might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, other than a communication made by means of the packaging of such a product in a quantity available for retail sale.
(6) In determining for the purposes of subsection (5) above whether a communication might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, regard shall be had to all relevant considerations and, in particular, whether—

(a) the name of, or of the producer, supplier or sponsor of, the product, service or event the promotion of which is the ostensible purpose of the advertisement is the same as or similar to the name of, or of a person engaged in the business of manufacturing or otherwise dealing with, a tobacco product; and

(b) any word, sign, symbol, picture or other feature which appears in the advertisement or any use of a colour or combination of colours in the advertisement is the same as or similar to any word, sign, symbol, picture or other feature or any use of a colour or combination of colours which is associated with a tobacco product.

(7) A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, I rise to speak to Amendments Nos. 151A to 151D. When these amendments, which are intended to ban tobacco advertising, were debated at the Committee stage of the Bill in this House, the noble Lord, Lord Glenarthur—I see that he is in his place—described them as "bizarre".
The noble Lord said:
"The Bill with which we are dealing is concerned with a number of serious matters … It deals with a number of issues which are widely regarded not only as offensive but also as dangerous".—[Official Report, 20/6/94; col. 112.]
He apparently excluded tobacco smoking from those categories. That tobacco smoking is widely regarded as offensive was then borne out by the noble Lord, who said that at a personal level he disliked smoking, a fact that was not unknown to a number of your Lordships, of whom he said, using yachting terminology, he occasionally tried to get up wind in various parts of this building.
The noble Lord said nothing of the 110,000 people who died, half under the age of 69 years, losing an average of 23 years of life from diseases caused by tobacco. He made no mention of the hundreds of thousands of others who live in poor health, disabled by tobacco related diseases.
It is now 40 years since I qualified in medicine. There has hardly been a week during that time when I have not had to treat patients whose health has been adversely affected by smoking, whether it was a matter of simple sinusitis or of diseases right through the gamut to lung cancer. The noble Lord did not remark at all about the
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unchanged prevalence of smoking among children in the United Kingdom. In 1982 the Office of Population Censuses and Surveys recorded that about 24 per cent. of 15 year-olds were smoking regularly. By 1992 it was about 23 per cent. There was no real change, despite a series of voluntary agreements that were allegedly designed to make smoking less attractive to children.
A number of eminent expert bodies have declared nicotine addiction, which, as all noble Lords know, is most commonly achieved through tobacco smoking, as being as strong as or stronger than addiction to cocaine and heroin. They include the United States Surgeon General and the American Psychological Association; and it has been stated by our own Professor Griffith Edwards, who is head of the addiction research unit at the Maudsley Institute of Psychiatry. Tobacco is a dangerous product. It is highly addictive and kills one-third to one-half of its users, even when they use it in the manner that is intended by its manufacturers— say, at a level of 20 to 25 cigarettes a day.
The noble Lord, Lord Glenarthur, also asked: what about motor cars and what about alcohol? Are they not dangerous too? Motor vehicle manufacturers do not recommend that their customers drive their vehicles recklessly, thereby causing motor vehicle crash fatalities; and there has been widespread concern about advertising that emphasises speed. The advertisements have been changed to some extent.
The alcohol industry would be happy if everyone consumed alcohol up to the level recommended by the Health Education Authority. Ironically, that would increase alcohol consumption because of the number of people who do not at present drink alcohol every day. The alcohol industry certainly does not want its clients to abuse their consumption of alcohol so that the risk of diseases such as cirrhosis of the liver, marital and family disputes and motor vehicle crashes are increased. In fact, most noble Lords will be delighted that recent research shows that light to moderate alcohol consumption may be beneficial to health, particularly in the case of cardiovascular disease.
So there is a very clear distinction between tobacco and other potentially dangerous substances. Tobacco is dangerous when used according to the manufacturer's recommendations and expectations.
There is very strong support for a ban on tobacco advertising in this country. In another place more than 387 Members—more than half the 650 total and in fact nearly six out of every 10 Members—have written letters to their constituents in support of a ban on tobacco advertising. There are more MPs as well who have not committed themselves to paper and who would also support it. Even among the Cabinet there is support for a ban on tobacco advertising. The President of the Board of Trade has recently written to say that an outright ban is the credible way forward. The Environment Secretary has also written to say that if the Government want to be seen to be serious about reducing the problems of smoking and improving people's health, the right course of action would be to go for an outright ban on tobacco advertising. The Secretary of State for Health has said that tobacco

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advertising does affect total tobacco consumption, not just brand share. Further restrictions up to and including a ban could therefore be expected to reduce smoking.
When my professional friend the noble Lord, Lord McColl, put forward nearly the same amendments during the Committee stage of the Bill, there was some criticism that people who advertise tobacco would be liable to go to gaol if the amendments were passed. I believe that someone who advertises and promotes a product which causes 110,000 people per annum to die prematurely probably should go to gaol. But the amendments put forward today reduce the penalty to a fine not exceeding level 4 on the standard scale, which is a maximum fine of £2,500.
That brings it into line with the Children and Young Persons (Protection from Tobacco) Act 1991, which I took through this House and which was assented to on 27th June 1991. Under that Act, a person who sells tobacco products to persons under 16 years of age is liable on summary conviction to a fine not exceeding level 4 on the standard scale; therefore, extending the "legal to sell, legal to advertise" argument, those who advertise tobacco products illegally to children after this Bill is passed will be subject to the same penalty as those who sell tobacco products to children illegally.
The hour is late. There is much more that I could say to back up the case for this amendment, but I wish to hear what other noble Lords have to say. I shall move the amendment and listen to what people have to say. I beg to move.
Lord Glenarthur: My Lords, since the noble Lord, Lord Rea, has drawn to the attention of the House some of the remarks that I made at Committee stage, perhaps I may return to the charge, partly in a sense because the noble Lord addressed not even half of the burden of the remarks that I endeavoured to put across at that stage. If I expressed surprise at the amendments introduced at Committee stage by my noble friend Lord McColl, which were supported by the noble Lord, Lord Rea, I can only say that my surprise has now grown into something more akin to astonishment, particularly perhaps in the light of the noble Lord's remarks this evening.
With these amendments the noble Lord has sought to introduce into the Bill a subject which, by any rational argument, is wholly alien to the Bill. It is a subject which is particularly emotive and closely coupled with the overall matter of the regulation of advertising. I do not believe that even the noble Lord can say that that particular subject of advertising is a matter with which the Bill is concerned.
The amendments create serious new criminal offences. They remove existing commercial freedoms, overturn policies which have a record of substantial success and create a precedent for the future which could be relevant to other products. They would introduce sweeping new powers for Ministers by way of regulation.
I am not trying to indicate that the amendments are in any sense out of order. If they were, I have no doubt that they would not have been allowed. No, it seems to me that the proposers of this amendment have been driven
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by something of a crusading spirit—which I understand; the noble Lord is a very eminent doctor. They have taken the opportunity provided by the Bill (which is something of a Christmas tree Bill ready to be adorned by all manner of issues) to decorate it—the tree, if you like—with a topic about which they feel passionately and about whose defeat they and others felt aggrieved when the Private Member's Bill fell in another place. I do not blame them taking the opportunity presented by the Bill because that is what the procedures of the House allow.
I make no apology for again declaring a set of conflicting interests: as a non-smoker with more than a passing distaste for tobacco (to elaborate further on the quotation from my speech which the noble Lord, Lord Rea, gave); as an employee of a company which owns Imperial Tobacco; and as chairman of a National Health Service trust. There is nothing mutually exclusive about any of those interests. But as a Member of your Lordships' House I feel exceptionally strongly about what these amendments set out to do in this particular Bill.
The noble Lord, Lord Rea, condemned me a minute or two ago for not acknowledging at Committee stage that smoking does damage. I have very little doubt that for many people smoking is more harmful than many other things and certainly more harmful than not smoking. I have to say, though, that many noble Lords might be thought, by the length of time they have inhabited this House, somewhat to disprove that theory. I strongly support devising ways of discouraging children from taking up smoking. I have seen smoking in my own family and very much welcome efforts that can be made to try to diminish it. But I hope that the noble Lord will accept that smoking is not an illegal activity; nor, for that matter, is drinking—to which he referred; nor is chewing gum, eating baked beans or doing a host of other things, all of which in excess probably do us precious little good So I find it astonishing that the noble Lord is trying to write into the Bill a series of amendments which would make wholly illegal the advertising, free distribution and other aspects of a perfectly legal substance.
It is not for me to try to interpret the noble Lord's motives. However, one is bound to wonder whether he would in fact like to ban smoking altogether and make smoking totally illegal. The noble Lord seemed to claim that the various changes introduced to the amendments since my noble friend Lord McColl withdrew them at Committee stage somehow make them more acceptable. However, the changes represent only tinkering at the very edges of the Bill. The essential point of principle remains.
The amendment introduces to the Criminal Justice and Public Order Bill a substantial new topic much more closely related to advertising than to criminal justice, let alone public order. It is introduced at a point in the Bill's passage which precludes a Second Reading and indeed a Committee stage debate on the merits of the amendments. To that extent, in the middle of a long, hot July, one may be forgiven for believing that it somewhat trespasses on your Lordships' time.

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I shall not dwell upon the technical merits or demerits of the amendments, though I believe them to be real enough in the case of the demerits. Nor shall I repeat the economic arguments which were advocated at Committee stage regarding tobacco revenue, or the importance of allowing the voluntary agreement to take effect. I am concerned with principle more than anything else and on that ground alone I hope that the amendment will be resoundingly rejected.
9 p.m.
Baroness Seear: My Lords, I should like to say first that I am charged to speak in this debate by my noble friend Lady Robson, who is a dyed-in-the-nicotine smoker if ever there was one. She strongly supports the amendments. She recognises, as everybody in this House must, that it is an addictive habit and that it is dangerously encouraged by advertising. After the Committee stage it was said to me that it was very illiberal to try to ban the advertising of tobacco. But there is nothing illiberal about introducing health provisions of one kind or another—something which we have supported over decades. In all common sense, and to all except the most prejudiced people, it is surely desirable that the smoking habit should not develop into an addictive habit.
We were given the horrifying figure that 25 per cent. of 15 year-olds are smoking. If 25 per cent. have admitted to it, one can be pretty certain that the figure is in fact much higher. Knowing what we do about the effects of tobacco ads, we must do all we can to see that youngsters do not acquire the habit. If they see advertisements pressing them in one way and another and inducing them to smoke, we are failing to block a dangerous risk to their health and that is something that we most emphatically ought not to do.
There are many people wishing to speak who are far more experienced and knowledgeable than I am on the subject and whose words will carry much greater weight than mine. However, I hope that we recognise the real danger in which we are placing the younger generation. The numbers of children smoking have grown enormously. I do not know why; it was so much more difficult to do it when I was young. It is an extremely harmful habit and we should take all the steps we can to protect them.
The noble Lord, Lord Glenarthur, said that the issue was being injected into an unsuitable Bill. I agree that it is a Christmas tree Bill and many things are included in it. But he did not object to any of the others, so why does he pick on this issue? It is only one part of a Christmas tree Bill and it seems to me to be extremely sensible to take the opportunity to introduce this amendment to achieve something that we feel urgently needs to be done.
Lord Brabazon of Tara: My Lords, I must confess that I have smoked for almost 30 years. However, I must say to the noble Baroness, Lady Seear, and the noble Lord, Lord Rea, that I have never once been influenced to smoke by tobacco advertising.
Baroness Seear: My Lords, perhaps the noble Lord can say why he thinks tobacco companies advertise if it does not influence people to smoke.
Lord Brabazon of Tara: My Lords, I shall come to that point in a moment. There is a good parallel which I can draw for the noble Baroness. I suspect that I started smoking because my parents and friends smoked and when I tried my first cigarette I enjoyed it. What tobacco advertising has done occasionally over the past few years is to persuade me to switch brands. The noble Baroness asks why tobacco companies advertise. Why do petrol companies advertise? I have never seen a petrol company advertising in order to persuade more people to drive their cars more miles around the country in order to enjoy themselves. Of course not. They advertise to try to persuade us to buy Esso rather than BP, Shell, Texaco or whatever. There is no doubt about that. The point is exactly the same in relation to tobacco advertising.
I want to return to these curious amendments. They are not amendments. They form a Private Member's Bill which has been imported into a government Bill on criminal justice. I want to know from the noble Lord, Lord Rea, who promotes the amendment, how it is that when the amendment was moved at the last stage it required a change to the Long Title of the Bill, and apparently it does not require that change tonight. Why not?
I want to ask the noble Lord a number of questions in relation to my specific interest in the subject; that is, sports sponsorship. The noble Lord may or may not be aware that tobacco companies are major sponsors of sports in this country—to the tune of around £9 million. As I read the amendment, that would be banned if the amendment were included in the Bill. Well-known events such as the Benson & Hedges Cup in cricket, the Dunhill Cup in golf, the Silk Cut Challenge in rugby league and the Embassy World Snooker Championships are all major sporting events sponsored by the tobacco companies. Where will the evident benefit that we all receive from the events being sponsored by tobacco companies come from if the amendment is carried?
Arguments may be put forward that others would step into the gap and non-tobacco companies would take on the sponsorship. Perhaps they would. But there is only a finite amount of money available for this kind of thing and the money would come from somewhere else; it would be diverted from the lower levels of sport and therefore many people would lose out.
My specific interest is in motor racing and many noble Lords will have watched the British Grand Prix last Sunday. It was an exciting event won by Damon Hill and was a great triumph. We saw the Rothmans Williams-Renault team, the Marlboro McLaren team —all sponsored by the tobacco industry. Motor racing is one of the UK's major success stories. All the leading teams at Silverstone last Sunday —or most of them anyway—are based in the United Kingdom. It is one of the things that we do really well in this country.
These, I admit, are Committee points, but we do not have the privilege of having a Committee stage. We are now at Report stage and we have an amendment before

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us which, if it is carried, is almost impossible—I agree that we have Third Reading—to amend. This should be a Private Member's Bill. It should be a Bill where we have a proper Second Reading. We could then go into Committee stage, Report stage and so on. We should look at the Bill and analyse it line by line instead of having to deal with the entire matter at one stage as we are tonight.
I have another point on sports sponsorship by tobacco companies. Did the noble Lord, Lord Rea, when he put down the amendments consult those involved with sport? Has he asked them what they think about these proposals and the impact they would have on sport? Coming back to Grand Prix motor racing, a few weeks ago, along with another 4.5 million people, I watched the Canadian Grand Prix. It carried extensive advertising for tobacco companies. Will the broadcast of an event of that kind be banned by these amendments? My reading of the amendments is that it would be because it carries advertising for tobacco products. Are we therefore going to deprive all those people who want to watch that kind of event merely because they carry tobacco advertising from overseas? Those are just some of many points I should like to make. The hour is late and I shall not go on. But we ought to have the opportunity of looking at these amendments properly if we are to deal with this matter at all tonight.
Lord Mason of Barnsley: My Lords, I rise to oppose these amendments. Like the noble Lord, Lord Brabazon, I am concerned that an attempt should be made to try to insert virtually a new Bill—not an amendment or a new clause but the Barron Bill from another place which was rejected by another place—into another Bill in this House. At least that should be questioned. If this new Bill in the form of a group of amendments is incorporated, the Minister should when she replies explain to us whether there should be or would have to be a change in the Long Title and a recommencement of the Bill. I do not think it is good parliamentary practice anyway to try to insert all these amendments in the form of a new Bill into this Bill.
In this country we have a system whereby Her Majesty's Government and the tobacco companies negotiate a voluntary agreement which increasingly restricts tobacco advertising and gives warnings on tobacco products that tobacco is injurious to health. With restrictions getting tighter and warnings looming larger, both parties—government and tobacco com-panies—are jointly playing their part and consumption is being reduced. I must say that the evidence I receive does not support the view that banning the advertising of tobacco products necessarily cuts the sales of tobacco. There are one or two countries which have banned advertising but consumption still increases.
As the noble Lord, Lord Brabazon, said, tobacco advertising is mainly a competition between brands and not necessarily to sell more tobacco products. That is quite obvious because sales are going down. Brand switching is the result in what is in the United Kingdom a dwindling market. It is also a legal product, produced by 1 1,000 men and women in our country. It has a legal right to be advertised. It is a commercial freedom and as
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such we have the right and the freedom to enjoy smoking tobacco, and those 11,000 British workers have the right to see their product advertised and also at the same time to combat the cheaper, high-tar, more unhealthy cigarette imports which now constantly threaten their jobs.
If this non-advertising of a legal product continues on the grounds that it may be injurious to health, what then of alcohol—beer, whisky, gin and brandy? Are they not also injurious to health? Where does it stop? Do we also ban the advertising of butter, fats and cream? And then what of the German scare over our beef and BSE? Where does it end?
There is the case concerning McDonald's. Two persons distributed leaflets (they call themselves the McLibel Two) claiming that a McDonald's diet, high in saturated fat, was linked to some forms of cancer— linking the company's meals to heart disease and cancer.
A correspondent wrote recently about these interferers—they are petty dictators really. Last year there was a furore over the refusal of at least two big heart centres to operate on smokers unless they kicked the habit. The correspondent said that he was horrified that medical practitioners were discriminating against people who were indulging in a perfectly legal, if unhealthy, pastime. Would drinkers be refused liver operations, joggers be left to suffer sprains and injuries and butter lovers be denied heart operations? We have to keep a sense of proportion about all these things.
I am the founder and convenor of the Lords and Commons Pipesmokers' Club founded many years ago when I was in another place. As a pipe smoker I am interested in the adverts; whether a brand is being changed in its ingredient make up—usually these days they have been made milder—or whether, due to low demand, production is being switched to another brand. It is the information that I want to help me to continue enjoying my smoking. I still have the right to smoke if I so wish. I am still in a democracy although the way the anti-smoking campaign is being waged there appear to be more dictators than democrats.
Another point I hope I am allowed to make—and I do not want to be too controversial—is about passive smoking. Two of my late smoking club colleagues, Lord (Manny) Shinwell happily puffed a pipe every day and lived until he was a 100 and Lord (Fenner) Brockway also enjoyed his pipe and he lived until he was 99 years of age. I guess that the average age of Members of the pipe club of this House are over 70. I have smoked a pipe for over 50 years. All that time our pipemen have had undiluted smoke in their mouths daily for years. It is a wonder, according to the opponents of passive smoking, that they have survived for 10 years.
I would guess that a jogger in London at lunchtime takes in more toxic fumes—a cocktail of harmful pollution—going down his gullet from London vehicle discharges every day, which are now admitted to be injurious to health. So should we not ban adverts of pollution-emitting taxis, lorries and London buses? We have to keep all these matters in perspective.

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These amendments, if successful, will ban all tobacco advertising for a start and by way of fines criminalise the advertisers. As the Minister said:
"a total ban and the criminalisation of advertising. This is not a small step. It is a major and significant move which raises issues well beyond simple health matters".—[Official Report, 20/6/94: col. 124.]
I totally agree with that point of view and that is what I shall support.
9.15 p.m.
Lord Walton of Detchant: My Lords, as I anticipated, this is proving to be an absolutely fascinating debate. It is entertaining, amusing, but in some respects incredibly misguided. It has in fact totally missed the point of the reasons underlying the setting down of these amendments. I fully support the views of those who defend the right of any adult who wishes to smoke. I wholly accept, as a member of the medical profession, that a number of the pronouncements made by my colleagues in the profession relating to the association between various environmental hazards on the one hand and disease on the other, have not been proven statistically to be the case.
But of one thing there can be no doubt whatever. The evidence relating to the devastating effect on human health of smoking is incontrovertible. Those who deny that association are blinkered and I fear that they have not been capable of interpreting the evidence. Smoking is the single largest preventable cause of premature death in the United Kingdom. Smoking kills a proportionately larger number of people at younger ages and older ages. About one-third of all deaths between 35 and 69 years of age is due to smoking, with each smoker losing on average 23 years of life. Smoking causes 14 per cent. of deaths after 69 years of age.
The "legal to sell/legal to advertise" argument is spurious because of the existing ban on radio and television. One hundred years ago, Parliament in its wisdom passed a Bill forbidding the advertising of patent medicines which purported to cure venereal disease. So far as I am aware, that particular Bill is still on the statute book. There are many other examples where advertising is no longer allowed.
The problem here is that, while government action, particularly their excellent tobacco tax policy of persistently increasing the price of tobacco, has led to a steady fall in adult smoking rates, no significant change in children's rates of smoking has been observed. Other approaches are needed. In 1982, 24 per cent. of 15 year-olds were smoking regularly, and in 1992 the rate was almost exactly the same. Eight out of 10 regular adult smokers have begun smoking by the age of 15. Of course, I accept the concerns expressed by the noble Lord, Lord Brabazon of Tara, about advertising and sport. I have always had an abiding interest in cricket and other sports. I accept wholly the problems that would arise if tobacco advertising were banned.
I look back on my own personal experience. In a small mining village in Durham County where I was brought up I think I smoked my first cigarette at about the age of 10. By 14 I was a regular smoker, out of sight
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of my parents. When I was in the Army just after the war on a hospital ship, where cigarettes were 50 for 1 s 8d, I think that I smoked 25 a day. When the first evidence of harm to human health emerged and suggested that pipe smoking was less harmful, I moved on to the pipe.
Twenty years ago the evidence became perfectly clear that pipe smoking, though much less harmful also carried serious hazards in relation to peripheral vascular disease, stroke, heart disease and cancer, and with the most painful of decisions I eventually gave it up, even, to paraphrase Lady Macbeth, feeling for some years, "Is this a pipe which I see before me, its handle toward my hand? Come, let me clutch thee. I have thee not, and yet I see thee still". Giving up smoking is in fact the most agonising problem. We know that. I gave it up 20 years ago.
I make that point because for those who begin in childhood it is much more difficult to give up after many years of smoking. That is the whole point underlying the amendment. Technically I wholly appreciate the concerns expressed by the noble Lord, Lord Glenarthur, and others about the problems that would arise if all tobacco advertising were banned. But two wrongs do not make a right.
The evidence from Norway, where tobacco advertising has been banned, is that it has had a significant effect upon the number of children who start to smoke. I accept wholly the beneficial effects of the voluntary arrangements which the Government have entered into with the tobacco industry. They have had a beneficial effect, but they do not go far enough. Every medical and nurses' organisation in this country (the BMA, the Royal Colleges, the Royal College of Nursing) want to see a ban on tobacco advertising introduced, if not now, shortly afterwards.
In Norway tobacco advertising was banned in 1975. There has been a 9 per cent. drop in consumption since then. In Finland the ban was introduced in 1977 and there has been a 6.7 drop since then. In Canada the ban was introduced recently, in January 1989, and there has been a drop of 4 per cent. New Zealand has another ban which was introduced in December 1990; there has been a drop of 5.5 per cent. Your Lordships may regard those figures as a drop in the ocean, but anything that will persuade fewer young people to take up this pernicious habit, with the devastating effects that it has upon human health, would in my view be of enormous benefit. It is for that reason that I have added my name to the amendments.
Lord Harris of High Cross: My Lords, before the noble Lord sits down, perhaps I may ask him this question as a medical man. Does he disavow altogether any beneficial effects of smoking for some people? For example, evidence was published recently to the effect that people over 60 have a better chance of avoiding Alzheimer's disease and Parkinson's disease if they smoke. Does he not see any glimmer of that kind anywhere?
Lord Walton of Detchant: My Lords, no, I do not. In fact that evidence relating to Alzheimer's disease and Parkinson's disease has, I understand, been refuted subsequently.
Lord Aldington: My Lords, each time that we listen to the noble Lord, Lord Walton, we take account of his experience and knowledge and the way in which he addresses us. I suppose that in the beginning I too had a similar experience: I started smoking cigarettes, but then I turned to a pipe. However, unlike the noble Lord, I have not given it up. I do not believe that the fact that I have smoked for 65 years, and I am in reasonable health, proves that what I did was disastrous to myself any more than what the noble Lord did has manifestly proved to be disastrous to him.
We are dealing with the claim that a ban on advertising will discourage young people, in particular children, from smoking. That is the case which my noble friend put to us the other night and it is the case which the noble Lord, Lord Walton, has put today. I heard my noble friend the Minister say that there is absolutely no proof that advertising affects a child in deciding whether to take up smoking. That appears to me to be sensible because I am certain that when I started smoking it had absolutely nothing to do with advertisements. It had to do with the fact that I was at an OTC camp and that there was a certain stage in the morning's proceedings when it was desirable that I learnt to smoke—and I did. I would guess that the same was true of my children. Only one out of the three smokes but they have all been educated, they have all had a warning from their parents and elders and they have all made their own decision. I do not believe that there is any evidence to show that a ban on advertising will affect young people.
The important points about a ban on advertising are, first, the principle, to which I shall return. The second is the point that was made by my noble friend Lord Carr of Hadley about brands. One cannot keep a brand going unless one advertises it, and I should have thought that that was common ground. Today's brands are of a high quality and my noble friend warned us that if we eliminate brands, the cigarettes on the market will be of a lower quality and that people who smoke for whatever reason will be smoking a more dangerous product. That might even apply to pipe tobacco, too.
I beseech the House not to sweep away the point of principle. I am sure that like all principles there are exceptions to it; but it is fairly mad for this House, after dinner at a Report stage, to begin to legislate for five pages of clauses which introduce a new crime banning the advertising of a perfectly legal product that is used for a perfectly legal activity. Whatever the effect of that is, we should be satisfied that by agreement between the Government and the tobacco industry people who look at the advertisements and buy the products are aware of the danger and are aware of the quality of those products.
The right way to deal with young people is by education—and the noble Lord and his colleagues have a perfectly good opportunity to educate—and by parental advice. But I sound a word of warning about the education and the advice. There is a danger of crying wolf. The noble Lord, myself and many other people are perfect examples of the fact that smoking does not kill everybody. To anyone who says that by continuing to
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smoke I am trying to commit suicide, all that I can say is that during 65 years I have been remarkably incompetent at achieving that object.
This is a serious subject and it must be tackled in the way now proposed by the Government; that is, by constantly improving education, the contents of advertisements and a description of what is going on.
At this stage of the day and at this stage of the Bill, we should not use the loose procedures of this House to pass through, almost on the nod, this evening a five-page Private Member's Bill—because that is what it is. We have absolutely no opportunity to look at its detailed provisions which affect the health and security of people and whether or not: they go to prison. That is not the right way to proceed. Noble Lords who feel strongly about smoking and who feel that it should be made illegal should introduce a Bill to put that into effect. If they feel strongly that the advertisement of tobacco products should be made illegal, then they should introduce a Bill to achieve that. We should then be able to discuss that legislation carefully, fully, and line by line. But as it stands, I hope that the House will reject this amendment with contumely.
9.30 p.m.
Lord Harris of High Cross: My Lords, I also have to declare an interest as a contented smoker of a pipe for some 50 years; an interest as the chairman of FOREST; and I am director of a newspaper which derives some income from advertising of one kind or another. I am also one of the self-appointed guardians of a free society. My objections to the amendments are based on principle and also on my interpretation of the evidence about which we have heard.
I am astonished that we do not hear more about the principles of a free society in this House. But it must be true that in principle, all censorship is a sin against liberty. A free society not only tolerates but positively welcomes the widest conceivable expression of opinion and variety of action.
There is no virtue in boasting—as some noble Lords have done—about permitting freedom to do those things of which they approve or which they believe will benefit us. In my opinion, the unwritten contract between free men and women is that we uphold the rights of others to choose their own lifestyles, although we may personally vehemently and passionately dislike the results. We do that not out of charity but in return for others respecting our own peculiar eccentricities. In the vernacular, the phrase is, "Let us live and let live", or even, "Let us live and let die" because those prim medical puritans now tell us that most things that we do and enjoy are bad for us and are self-inflicted. They would discourage all manner of pleasant, agreeable, social experiences. They are people who, in a telling phrase, "see other men's lives as a proper end product of their own activity." I object to that intensely, however well intentioned it may be.
I shall not follow the statistics. It is perfectly clear that smoking in this country has been reduced more over the past 20 years without a ban than in Norway, Finland, Portugal or New Zealand. We heard of the example of Canada. That is a mere misuse of the evidence. There

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was a ban on the advertising of smoking in Canada; but, also, the price of cigarettes doubled. It cannot be said that the ban reduced smoking. It is not even clear that smoking has been reduced in Canada.
As the noble Lord, Lord Stoddart, observed in Committee—shrewdly, as always—the absence of commercial promotion in Russia for 70 years did not check record smoking by both children and adults in that country. It prevented the shift from high to low tar tobacco, which advertising in Britain helped to achieve.
We are told that smoking is dangerous to health. If that is so, it is certainly in no way unique. I have read many medical reports which tell me that it is one among 20 complex variables in the development of cancer ranging from genetics, ethnic origins, social class, housing, geographical location between town and country and, not least, diet.
As I was assembling my thoughts for the debate, an appeal arrived in my post—one that I welcome more than many appeals that I receive—from the World Cancer Research Fund, which states:
"Scientific studies indicate that 35 per cent. of all cancer deaths have been estimated to be related to diet".
The argument is better balanced in this House tonight than on earlier occasions. Therefore, I shall conclude with a brief diatribe against passive smoking. I earnestly believe that there is nothing whatever in passive smoking. FOREST produced a publication a short while ago by three doctors which quoted Sir George Godber in 1975 addressing the World Health Organisation. On that occasion, he emphasised that it would be essential to foster an atmosphere where it was perceived that active smokers would injure those around them. In other words —and these are my words—the purpose was to work up animus against the smoker in order to recruit battalions of anti-smoking fanatics.
In a forthcoming report by FOREST—and I have declared my interest—we have a statistician looking at studies of passive smoking. I shall read out a quotation and then, your Lordships will be glad to hear, I shall sit down.
"The American Environmental Protection Agency report discusses 30 studies on passive smoking but limits its own statistical analysis to 11 studies of the spouses of smokers"
— that is spousal smoking; in other words, a non-smoking wife living with a vicious, smoking husband.
"Of the 11 studies, the EPA claims that 10 reported no statistically significant association between ETS (environmental tobacco smoke) exposure and lung cancer. Only one reported a statistically significant association"—
that is, one out of 11 studies from the original 30.
"But that claim about the one US study is true only by using the EPA's unique 90 per cent. confidence level. Moreover, using the accepted 95 per cent. confidence level"—
and statisticians will be familiar with such terms—
"none of the 11 studies reported a statistically significant risk."
That powerfully reinforces the common-sense observation of the noble Lord, Lord Mason; namely, that those of us who have been puffing away for 50 years have much more exposure in one day or one week than our spouses and other innocent bystanders will get in a whole lifetime.
I shall conclude by referring to a press clipping which I do not have with me but which I remember reading. It
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told the story of a splendid old lady—who, indeed, could have been a Member of this House—who was 125 years of age. She said that she had in fact packed up smoking at the age of 110 for health reasons.
Lord Ponsonby of Shulbrede: My Lords, I wish to make only one point as time is moving on. I should like to draw a parallel between the proposed ban on tobacco advertising and the compulsory use of seat belts. Both are undoubtedly public health issues and both, to a degree, infringe civil liberties. Yet I would ask whether there is anyone in this House who would doubt that the introduction of compulsory seat belts in 1983 has been a great success and reduced the number of casualties in accidents. I believe that that is an appropriate parallel and one which should be borne in mind when considering the amendments.
We have to ascertain the difference between those two public health measures. In all frankness, I have to say that the difference that I see is the interest of the tobacco industry—that is, the massive financial interest that it has in preserving its right to advertise cigarettes. I do not believe that that is a good enough reason to reject the amendment. Therefore, I shall be supporting my noble friend.
Lord Brabazon of Tara: My Lords, before the noble Lord sits down, I wonder whether he can say what is the parallel between the compulsory use of seat belts and advertising of tobacco products. I can see no parallel whatever.
Lord Ponsonby of Shulbrede: My Lords, the parallel is that it is generally accepted—I think we have heard that this evening—that the seat belt measure and the banning of tobacco advertising measure will increase the health of the British public as a whole.
The Earl of Onslow: My Lords, my first practical memory was the black cat on a Craven A packet before my father went off to the war. My father died aged 57 coughing his lungs out from a tobacco related disease. There is nothing that has convinced me that tobacco smoking is not a quite filthy and very dangerous habit that should be discouraged at all possible costs. However, there is no way that I could vote for a ban on the advertising of a legal substance of which we also subsidise the production. The Common Market subsidises the production of Greek and Italian tobacco to the tune of hundreds of millions of pounds. We really cannot be so crassly hypocritical as to say, "No, you cannot sell your legal product, however disgusting it is". I have given up smoking. It made one cough up globules of green disgustingness; anything you like to mention. There is nothing to recommend it at all. But it is legal and we get lots of money from tax on it. And we subsidise it. There is a logical case for banning it altogether for the reasons given by the noble Lord, Lord Rea, and because of the effect it has on human life. But while it is legal we cannot ban the advertising of it.
Lord Monson: My Lords, whether or not one subscribes to the theory about lies, damn lies and statistics, it cannot be denied that statistics are frequently ambiguous and contradictory. The noble

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Lord, Lord Rea, and my noble friend Lord Walton have mentioned a few statistics. But the British Heart Foundation, which, be it noted, supports this amendment, tells us that the death rate from heart disease in Scotland and in Northern Ireland is twice the death rate in France from heart disease. Yet as anyone who spends any time in France knows, the French smoke far more than we in the United Kingdom—and they smoke higher tar cigarettes at that. Moreover, a recent official survey in Australia covering 12 million people—almost the entire adult population—revealed that while smoking has a malign effect upon bronchitis, as might be imagined, it would appear to have, on balance, a broadly neutral effect upon heart disease and a positively beneficial effect upon hypertension.
Noble Lords may dispute those statistics even though the sample covered is an extremely large one. If time permitted I could equally dispute the Department of Health statistics which contain many curious ambiguities. The main consideration is that in this amendment we are faced with the thin end of the wedge —banning something which, as has been said, is totally legal. Moreover, we are not only banning tobacco advertising but banning the use of a mere word which has any association whatever with tobacco. For example, no one would be allowed to give a new fountain pen, portable radio or rucksack the trade name of "Camel" which also happens to be the trade name of a cigarette. How extreme can one get?
During our lengthy discussions on this criminal justice Bill we have been talking a lot about homosexuality in general and buggery in particular— one of the greatest spreaders of the AIDS virus known to man—despite which local free newspapers (quite legally, as far as I am aware) carry thinly veiled advertising for every sort of homosexual service that can be imagined. If this amendment is carried, the message will go out from this House that the House of Lords believes sodomy to be preferable to smoking. Is that the sort of message we want to send out?
Baroness O'Cathain: My Lords, I have put my name to this amendment. It has been an interesting debate, conducted with great humour and with quite a lot of laughter. But I wonder whether there is a lot of laughter in 300 homes in this country tonight where 300 people have died prematurely today because of smoking related diseases. That is what we are talking about when the noble Lord, Lord Rea, mentions 110,000 premature deaths per year from smoking-related diseases. I am sure that all of us in this House have first hand experience of seeing loved ones die of smoking-related diseases or, as in the case of strokes, tragically disabled as a result of smoking-related diseases.
I support the amendment solely because I am convinced of the link between smoking and these dreadful deaths and as a result want to do anything I can to prevent more premature deaths and catastrophic disablement.
There are those who claim that advertising has no effect on encouraging people to commence smoking and does not encourage smokers to increase their smoking. They must think that all people involved in marketing
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—indeed, throughout the world—are completely wrong in using those techniques. All research shows that advertising does have impact. I ask those who oppose the amendment to give some thought as to what they think is the purpose of advertising.
Previously in this House I have drawn attention to the very clever slanting of some tobacco advertising towards young women and young men. At that age people are so impressionable. They want to be part of the crowd. They want to have "street cred". All of this, encourages them both to start smoking and to continue until such time as addiction sets in.
Young people are the prime target for tobacco advertising. Adults are being killed off by smoking-related diseases so new smokers have to be found to maintain cigarette sales. That may seem a cynical view but, sadly, I believe that it is true. The new smokers who are recruited by advertising are almost exclusively children and adolescents. Very few 30 and 40 year-old people commence smoking.
My attention has been drawn to a growing body of evidence which indicates that children have a degree of receptiveness and awareness about tobacco promotion. The noble Lord, Lord Aldington, has not had the benefit of hearing about that evidence. The evidence was included in an article by Mr. P. Aitken entitled Children and cigarette advertising which appeared in a series of essays entitled Pushing Smoke: Tobacco Advertising and Promotion, published by the World Health Organisation Regional Office for Europe in Copenhagen in 1988.
That article states that children are so well acquainted with tobacco brand imagery that many can identify edited cigarette advertisements that show no brand names. They can also identify cigarette brands in "brand stretching" advertisements—namely, those advertisements which advertise products or services such as sports clothes or holidays but which are marketed under another brand name such as Silk Cut Holidays.
Too many members of my family—husband, father, sister and members of my extended family—have said, while suffering from smoking-related diseases, "How I wish I had never started smoking and, even more, how I wish I could have stopped". I support the amendment wholeheartedly.
9.45 p.m.
Baroness Jay of Paddington: My Lords, I should like to support the amendments in the name of my noble friend Lord Rea. I am delighted to follow the powerful speech of the noble Baroness, Lady O'Cathain.
I speak from the Front Bench tonight. There is a free vote on this side of the House. I believe that that is not the case on the other side of the House. I speak from the Front Bench in the confidence that the measures which are included in the amendments were included in the 1992 Labour Party manifesto. They are currently in the Labour Party health consultation document Health 2000, and, as I confidently expect that consultation document to go through the next Labour Party conference, I believe that I speak to future Labour Party policy on banning tobacco.
Noble Lords: Tobacco advertising!
Baroness Jay of Paddington: My Lords, I am sorry. That was a Freudian slip. Perhaps I may re-emphasise that in the Labour Party health consultation document which is at present under discussion but which has gone through both the Shadow Cabinet and the National Executive Council—for those who are interested in these procedures—we are signed on to banning tobacco advertising. I thank noble Lords for the correction.
I should like to address briefly questions which noble Lords have raised around the House about the inclusion of the amendments in the Bill and whether that is a problem. It seems a little extraordinary for noble Lords implicitly to question the wisdom of the Clerks in agreeing to the amendments if they are as inappropriate as has been suggested.
We have, for example, already considered the amendments which were put down in another place on the homosexual age of consent. We shall consider later this evening the new clause which was put down in another place by Dame Jill Knight on human embryos. Those measures fall into the same miscellaneous category as those on tobacco advertising. The fact that those amendments have been included and that we have discussed them, and will discuss them further, indicates that it is a perfectly legitimate way to proceed.
The noble Lord, Lord Walton, described the debate on the amendment as fascinating. I have found it somewhat extraordinary. Many noble Lords do not seem to accept the consensus which the noble Lord, Lord Walton, put most authoritatively. It is agreed by people on all sides, in particular the Government, that health intervention measures are necessary to seek to reduce smoking in this country. A number of noble Lords seemed to suggest that smoking was an entirely neutral activity and that anything done to try to reduce it was a rather extraordinary intervention in private lives. There is surely a consensus between us—
Lord Mottistone: My Lords, the noble Baroness refers to not smoking. However, the amendment refers to tobacco advertising. She has not spoken on that.
Baroness Jay of Paddington: My Lords, I shall move on to that. I want to emphasise, if I may, that noble Lords who spoke earlier—I do not wish to take time to quote them—have suggested that smoking in its own right is perfectly commendable and not in any sense to be attacked. However, we all know that it is the position of Her Majesty's Government, through the Health of the Nation policy, to try to reduce smoking by 40 per cent. by the year 2000. Various noble Lords who have spoken in support of the amendment have noted that that target is far from being achieved. In fact, in the most vulnerable groups —children have been referred to by several noble Lords—we have seen no decline at all. We have simply seen a standstill since the Health of the Nation policy was introduced.
I commend the Health of the Nation policy. I think that many of the activities undertaken on the educational side by Her Majesty's's Government, the Department of Health and the Health Education Authority to seek to
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reduce smoking have been commendable. Unfortunately they have not so far been successful with the vulnerable group of young smokers.
Perhaps I may refer to the speech made in Committee by the noble Baroness who will reply tonight. From many of the arguments that she put forward, one would have expected her to state that she supported the amendment, that she supported the ban on tobacco advertising. She said that there was a need for a broad approach in attacking the problem; that we needed to consider a whole range of influences; and that no one sought to say that we could do it through a quick fix. Indeed not, my Lords. No one says any of those things. We simply say that the ban on tobacco advertising would help that generally agreed policy of seeking to reduce smoking by 40 per cent. by the end of the decade. That is an enormous percentage.
I add one final political point. In another place the Chancellor of the Exchequer stated on 1st March this year that children under 16 years of age are estimated to consume 842 million cigarettes each year. The excise duty alone contributes £65 million to the Treasury. I believe that the estimates of VAT suggest that a further £15 million is contributed by those smokers. In total children's smoking contributes £80 million a year to the Treasury. This is the nub of the issue.
I think that the Ministers and the Department for Health should have the courage of their convictions, accept the arguments of all the health organisations which have been quoted this evening and accept the ban on tobacco advertising as aiding their own health programme.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My
Lords, these amendments were discussed at some length during the Committee stage on 20th June. On that occasion I sought to set out in some detail the reasons why the Government consider that the case for the amendments has not been made. I do not intend to repeat all those arguments today and I hope that those noble Lords who were not able to attend on 20th June have had the opportunity to read Hansard.
However, I want there to be no doubt about the importance the Government attach to reducing the level of smoking in this country. Despite the comforting words of the noble Lord, Lord Mason, the overwhelming body of medical and scientific evidence shows that smoking has a devastating effect on health.
At Committee stage the noble Lord, Lord Stoddart, questioned that. His contribution brought some light relief, I believe, on that occasion and was welcome. However, the House will not be surprised to hear that the Government do not share his views. Smoking is a serious cause for concern. In considering the figure of an estimated 110,000 deaths a year which can be attributed to smoking against total numbers of deaths, the noble Lord suggested that smokers' chances of survival are just as good as those of non-smokers. The overwhelming body of medical and scientific evidence shows that that is not the case. It is important to be clear that the figures for premature deaths and illnesses associated with tobacco represent the extra risks that smokers are

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exposed to, over and above the risks that we all experience. Of course, my noble friend Lord Aldington is right. Smoking does not make a premature death a certainty.
Lord Stoddart of Swindon: My Lords, the noble Baroness quoted my speech at Committee stage and she has prevented me from speaking in this debate because the convention is that no one speaks after the Minister has got up at Report stage. Therefore, perhaps I may say to her that my remarks at Committee stage were not intended to provide light relief. They were simply meant to be arithmetical projections of the claims made by the anti-smoking lobby and of the facts which she gave me in answers to perfectly reasonable questions. If they showed —as indeed they did—that far more people die who do not smoke than who do smoke, then so be it.
Baroness Cumberlege: My Lords, I remember on that occasion that the noble Lord was very interesting. I think that his creative use of figures portrayed a certain situation and tonight I thought I should do justice to the noble Lord's speech and put him in the picture. As he knows, I have written to him in great detail on his figures.
The noble Lords, Lord Rea and Lord Walton, and the noble Baronesses, Lady Seear and Lady O'Cathain, are right in saying that smoking is damaging. It does increase our chances of dying before our time and also of suffering from serious illness. Such unnecessary waste of life and health is something which I believe unites your Lordships' House and which we are trying to stop.
Few countries have done better than the UK in reducing smoking. In introducing his amendment to the Committee on 20th June, my noble friend Lord McColl acknowledged Britain's record in Europe in that respect. He queried, however, how well we compare with Canada, New Zealand and Australia. I am pleased to tell your Lordships that the UK's record in reducing smoking stands up very well against those other countries. Perhaps I can encourage the noble Lord, Lord Walton, by telling him that our record is not just one of the best in Europe but is one of the best in the world. Figures published in the International Journal of Advertising show that from 1974 to 1990 adult tobacco consumption fell by 39 per cent. in the UK. As the noble Lord, Lord Harris of High Cross, stated, this was a slightly greater reduction than in Canada, New Zealand or Australia, the countries to which my noble friend drew our attention. So the UK's record in reducing smoking is at least comparable to that of those other countries.
That does not mean that we are complacent. Your Lordships are aware that the Government have, for the first time, set ambitious targets to reduce smoking still further. We have adopted a wide-ranging strategy published in Smoke-Free for Health to achieve those targets. This strategy covers the whole range of influences on smoking, but, as my noble friend Lord Brabazon said, there are two things which certainly have a major impact on children. Those are whether their parents smoke and whether their friends smoke at school in the playground. With adults price is also a
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major factor. We have therefore focused our efforts on those areas. Perhaps I may reassure the noble Baroness, Lady Jay, that with children whose parents do not smoke we have already met our targets.
The strategy is having an impact. The number of people who smoke and the amount of cigarettes that are sold continue to fall. But the Government are pressing ahead with action on a broad front. For example, I am delighted to tell your Lordships that around 58,000 Londoners are estimated to have given up smoking during the course of the Health Education Authority's "Quitting is Winning" campaign earlier this year. We will be launching a £12 million health education campaign on smoking later this year which will focus on the important role that parents have to play. The charity QUIT, with financial support from the Department of Health and BT, will be launching a project in the autumn aimed at encouraging 16 to 19 year-olds to give up smoking.
As the noble Lords, Lord Mason and Lord Walton, and my noble friend Lord Aldington reminded the House, the Government's approach includes controls on tobacco advertising. With the new measures that were announced in another place on 13th May, the UK's advertising controls will be the toughest to be introduced under a voluntary agreement anywhere in Europe —or indeed, I suspect, anywhere in the world.
The new advertising controls will be implemented over the next few months. The question before the House is whether the evidence justifies the draconian further steps that are set out in these amendments— amendments that aim not just at a total ban but at the criminalisation of tobacco advertising. In Committee on 20th June my noble friend Lady Young explored very skilfully the implications of legislating against tobacco advertising in the context of a Bill dealing with criminal justice and the implications of making it a criminal offence to advertise a legally available product. We reject the arguments that were put forward by the noble Baroness, Lady Jay, on this issue, and we support the arguments of my noble friend Lady Young.
As my noble friend Lord Aldington reminded noble Lords, during the Committee stage I made it clear that the evidence does not support a statutory ban. I do not wish to detain the House by going over all the reasons of the Government's position again. However, I do think it worth highlighting two central points which are often overlooked by those who quote the Smee Report in making the case for a ban on advertising. First, the UK studies reported in the Smee Report, which used data up to 1987, failed to find a significant effect on consumption by banning advertising. Earlier studies did find some effect, but they were conducted before the 38 per cent. fall in smoking prevalence that has taken place. Supporters of a ban on tobacco advertising seem to ignore this uncomfortable fact.
Moreover, the House should be clear that those countries in Europe which have already banned tobacco advertising or which support a Europe-wide ban have not found a panacea for reducing smoking. The fact is that none of those countries has a record which matches that of the UK, and in some of them smoking is still increasing.

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In conclusion, the Government remain convinced that our voluntary approach is correct. The agreements have served us well. We believe that they will continue to do so and that the recently strengthened controls will deliver an even more effective level of protection to children.
Many people have spent a great deal of time and effort trying to make tobacco advertising into some sort of symbolic issue. They are aiming at the wrong target. What should interest us are the opportunities for real progress to cut smoking itself. All this time and effort can be much better employed in helping to tackle the really critical issues associated with tobacco. So we should be concentrating our fight on helping parents to give up smoking for their children's sake, since smoking in front of children is the very worst form of tobacco advertising; on encouraging employers and managers of public places to introduce effective non-smoking policies which protect the interests of non-smokers, who are in the majority; on supporting action against those retailers who break the law by selling tobacco to under-16s; and on a campaign for further reforms of EC subsidies for tobacco growing. My noble friend Lord Onslow is right. We simply must not take lectures on tobacco advertising from a European Commission which continues to hand out close on £1 billion a year in subsidies to tobacco growing countries.
There is plenty of work to be done on these and other important fronts in the fight against smoking. As for the measures set out in these amendments, I put it to the House that the case for them has not been made. I hope that the House will support the Government and resist the amendments.
Lord Rea: My Lords, this has been a very good-humoured and I believe very revealing debate. Many noble Lords have spoken and I wish to thank every one of them for having taken part. It is impossible for me to answer every point raised by every noble Lord. A number of those points have already been answered by noble Lords who supported me.
Let me once again turn to the question of whether the advertising of tobacco is an appropriate subject for the Criminal Justice and Public Order Bill. Surely, if a lethal product is being advertised, a criminal justice Bill is precisely the place where it should be. It is true that tobacco is legal. But, as I mentioned at Committee stage, the Secretary of State for Health, Mrs. Virginia Bottomley, said in another place that if it were to be introduced now it would probably be banned.
Another point, which was raised by the noble Lord, Lord Brabazon, concerned the Long Title. My noble friend Lord Mason also mentioned that matter. I notice that in this series of amendments it was not mentioned. However, I have been assured that if the amendment is agreed to, the necessary adjustment to the Long Title can be introduced at Third Reading.
A third point related to the problems for various sports if an advertisement ban were brought in. I should like to remind the House of what was done in Australia when tobacco sponsorship for sport was banned. A
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special fund was taken from the tobacco tax specifically to sponsor sport. There has been no difficulty in keeping going fully the sporting activities of Australia.
The noble Baroness placed a great deal of importance on the current voluntary agreement. I suggest that it only represents the lowest common denominator of agreement between an industry whose obvious aim is to sell as many cigarettes as possible and a Government who are reluctant to take appropriate and effective steps to curb tobacco advertising, curbs which have been recommended by every eminent medical and scientific society in the country, including all 35 of the professional health organisations in the National Forum for Coronary Heart Disease Prevention, of which I am vice-chairman.
What is the basis for removing poster advertisements from within a 200-metre radius of schools but not from a 201-metre radius? Surely children can read and understand tobacco advertisements placed 201 metres from schools, Since they nearly all live more than 200 metres from schools, they will see the advertisements. The agreement is not logical.
Tobacco advertisements and promotions exist freely on the high street and freely on poster hoardings which are seen by children. The noble Baroness spoke about quitting smoking tobacco. The purpose of these amendments is to stop children from starting to smoke tobacco and to prevent them from a lifetime of smoking, which they will find great difficulty in giving up. It is high time that we put an end to the charade. It is time that we stopped dragging our feet. We should assist the Government to attain their target of reducing smoking from 30 per cent. to 20 per cent. by the year 2000. I wish to take the opinion of the House, and I commend the amendment to your Lordships.
10.10 p.m.
On Question, Whether the said amendment (No. 151 A) shall be agreed to?
✶ Their Lordships divided: Contents, 51; Not-Contents, 117.

Division No.4

CONTENTS

Blackstone, B.

Macaulay of Bragar, L.

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Clinton-Davis, L.

Masham of Ilton, B.

Craigavon, V.

Mayhew, L.

Darcy (de Knaylh), B.

McIntosh of Haringey, L.

David, B.

McNair, L.

Dean of Beswick, L.

Merlyn-Rees, L

Desai, L.

Monkswell, L.

Ewing of Kirkford, L.

Nicol. B.

Geraint, L.

O'Cathain, B. [Teller.]

Gould of Potternewton, B.

Oxford, Bp.

Graham of Edmonton, L.

Park of Monmouth, B.

Halsbury, E.

Ponsonby of Shulbrede, L.

Hamwee, B.

Prys-Davies, L.

Harris of Greenwich, L.

Rea, L. [Teller.]

Hollick, L.

Redesdale, L.

Hylton, L.

Richard, L.

Jakobovits, L.

Seear, B.

Jay of Paddington, B.

Sefton of Garston, L.

Jeger, B.

Tordoff, L.

Judd, L.

Walton of Detchant, L.

Kinloss, Ly.

Williams of Crosby, B.

Lauderdale, E.

Williams of Elvel, L.

Lockwood, B.

Williams of Mostyn, L.

Lovell-Davis, L.

Young of Darlington, L.

1737

NOT-CONTENTS

Aldington, L.

Macleod of Borve, B.

Annaly, L.

Manton, L.

Arran, E.

Mason of Barnsley, L.

Astor, V.

Massereene and Ferrard, V.

Balfour, E.

Miller of Hendon, B.

Belhaven and Stenton, L.

Milverton, L.

Bethell, L.

Monson, L.

Blatch, B.

Morris, L.

Brabazon of Tara, L.

Mottistone, L.

Brooks of Tremorfa, L.

Mountevans, L.

Brougham and Vaux, L.

Mountgarret, V.

Bruntisneld, L.

Nickson, L.

Burnham, L.

Norfolk, D.

Carlisle of Bucklow, L.

Northesk, E.

Carnock, L.

Onslow, E.

Carr of Hadley, L.

Orr-Ewing, L.

Chalker of Wallasey, B.

Oxfuird, V.

Colnbrook, L.

Palmer, L.

Colwyn, L.

Pearson of Rannoch, L.

Courtown, E.

Peel, E.

Craig of Radley, L.

Pender, L.

Craigmyle, L.

Perth, E.

Cranborne, V.

Rankeillour, L.

Cullen of Ashbourne, L.

Rawlinson of Ewell, L.

Cumberlege, B.

Renton, L.

De L'Isle, V.

Rodger of Earlsferry, L.

Dean of Harptree, L.

Rodney, L.

Denham, L.

Romney, E.

Demon of Wakefield, B.

Saint Albans, D.

Dixon-Smith, L.

Salisbury, M..

Donoughue, L.

Saltoun of Abernethy, Ly.

Downshire, M.

Sanderson of Bowden, L.

Elphinstone, L.

Seccombe, B.

Elton, L.

Sharpies, B.

Faithfull, B.

Sherfield, L.

Falkland, V.

Simon of Glaisdale, L.

Ferrers, E.

Skelmersdale, L.

Fraser of Carmyllie, L.

Slynn of Hadley, L.

Gainsborough, E.

Soulsby of Swaffham Prior, L.

Glenarthur, L.

St. Davids, V.

Goschen, V.

Stanley of Alderley, L.

Gray of Contin, L.

Stewartby, L.

Gray, L.

Stockton, E.

Harlech, L.

Stoddart of Swindon, L.

Harmar-Nicholls, L.

Strabolgi, L.

Harris of High Cross, L.

Strange, B.

Hemphill, L.

Strathclyde, L.

Henley, L.

Strathmore and Kinghorne, E.

Hives, L.

[Teller.]

HolmPatrick, L.

Taylor of Blackburn, L.

Howe, E.

Tebbit, L.

Kilbracken, L.

Torrington, V.

Kimball, L.

Trumpington, B.

Leigh, L.

Ullswater, V. [Teller]

Long, V.

Vivian, L.

Lothian, M.

Wade of Chorlton, L.

Lyell, L

Wakeham, L. [Lord Privy Seal]

Mackay of Ardbrecknish, L.

Warnock, B.

Mackay of Clashfern, L. [Lord

Young, B.

Chancellor]

[✶ The Tellers for the Contents reported 51 names.
The Clerks recorded 50 names.]
Resolved in the negative, and amendment disagreed to accordingly.
10.17 p.m.
[Amendments Nos. 151B to 151D not moved.]
The Lord Bishop of Oxford The Lord Bishop of Oxford moved Amendment No. 152:
After Clause 141, insert the following new clause:
("Incitement to religious hatred
. A person who uses threatening, abusive or insulting words or behaviour, or who publishes or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—

(a) he intends thereby to stir up hatred against any group of persons in Great Britain on the ground of their religious beliefs; and

(b) having regard to all the circumstances such hatred is likely to be stirred up thereby.").

The right reverend Prelate said: My Lords, as your Lordships will know, the present law on blasphemy protects only the beliefs of Christianity and the formularies of the Church of England. When recently this House debated an amendment which would have the effect of dropping the law on blasphemy, the most reverend Primate the Archbishop of York and the noble Earl the Minister argued that abolition at this stage would have serious and unhelpful repercussions, and the proposed amendment referring to blasphemy, was withdrawn. However, I think we all recognise that the present law is too narrowly focused for the society which we now enjoy. Many would like to offer some degree of reassurance to other faith communities that their religious beliefs also are respected and that their communities are protected from incitement to religious hatred. That is why we bring this amendment before your Lordships' House this evening.
Before doing so I contacted all the diocesan bishops of the Church of England and spoke privately to many of them at the General Synod in York last weekend. I know that the amendment enjoys substantial support which, I believe, reflects a widespread desire in the Church of England as a whole on the issue. A leading Moslem said on the radio recently that he regarded the established Church as the trustee of the religious life of the nation. It is in that spirit that we hope to persuade your Lordships to accept this amendment.
However, I should like to stress that we fully recognise the difficulties mentioned in the previous debate by the most reverend Primate and the noble Earl the Minister. First, there is the question of defining what constitutes a religious belief. A Moonie or a Scientologist might claim that their beliefs were being abused. But I do not believe that that is an insuperable objection. For a successful action to be brought the group who claim that they were being abused on the grounds of their religious beliefs would have to prove: first, an intention to stir up hatred; and, secondly, that hatred would in fact be likely to be stirred up thereby for those are the key features of the proposed amendment. So even if a group defined itself as religious in a way which others would have difficulty in accepting as such, the crucial question would be whether there was an intention to stir up hatred. It is as wrong to incite hatred of a sect with bizarre beliefs as it is to stir up hatred for people of one of the mainstream religions.
The second objection to the proposed amendment is more weighty. It is suggested that there is no present need for such a law and that anti-semitism, for example, can be prosecuted under existing laws. This is a disputed area about which I believe the noble Lord, Lord Lester, will say something shortly. But whatever the adequacy of the present law in this field, I would want to stress that there is a strong case for precautionary legislation.
Some years ago the Government admitted in relation to the environmental sphere that you do not wait to see bodies piling up in the street before you take precautionary measures to prevent the likelihood that

1739
this will happen. The religious environment is no less crucial than the natural one. Your Lordships will hardly need to be reminded of the extent to which religious hatred has bedevilled human history and the extent to which it is still present in the world today. We need an amendment to make it absolutely clear where this society stands in relation to the religious beliefs of all our peoples.
The third difficulty presented by our proposed amendment is that it might arouse expectations which cannot be met by the law. I recognise that in the short term this could very well happen. But a law like this on the statute book would play a crucial part over a period of time in educating other faith communities in the difference between lawful criticism, however hurtful, and material which is only there to outrage and stir up hatred.
At present there is resentment that only Christianity and the Church of England in particular have their beliefs protected by law. This resentment will persist so long as the present blasphemy law alone remains on the statute book. Some would prefer to see the law on blasphemy go altogether. But as it will be remaining for the foreseeable future, it is important to give reassurance to other faith communities that their most precious beliefs will also be afforded a measure of protection.
I do not in any way underestimate the difficulties I have mentioned which I know that a number of your Lordships feel. But they are not insuperable. We believe that the difficulties are more than outweighed by the clear message that this amendment, if passed, would send to the other faith communities and by the safeguard of this precautionary legislation in a world which is still darkened by religious hatred. I very much hope that your Lordships will be able to support this amendment which stands in my name. I beg to move.
Lord Lester of Herne Hill: My Lords, it is a very great pleasure and privilege to support the right reverend Prelate the Bishop of Oxford on this amendment, which also stands in my name on the Marshalled List. When the subject was debated on 16th June in Committee it was in the context of an amendment which I tabled to abolish the common law offence of blasphemous libel. That amendment proved to be controversial; but there was a very wide consensus on all sides of the Committee for the creation of a new public order offence of deliberately inciting religious hatred. Before obtaining leave to withdraw the amendment I said that I believed that the subject of deliberately stirring up religious hatred is, and will continue to be, a running sore in this country, and expressed the hope that it would be possible to secure a consensus to tackle the problem.
I was persuaded by that debate that it was inopportune to continue to seek to abolish the crime of blasphemous libel and therefore I do not seek to do so in this debate. But that makes it all the more important, I suggest, to provide some limited but real legal protection, not just to the Anglican faith and the Church of England but for adherents of other religions in our plural, multi-faith, democratic society.
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It is especially important to remove a source of legitimate grievance—for that is what it is—in the Moslem, Jewish and other religious minorities in this country. Members of the Moslem community—I speak here of the decent moderate majority, not of extremists —settled in this country undoubtedly feel affronted because of what they regard as the discriminatory legal position, protecting only Christianity. As believers in Islam, they are unprotected also by the Public Order Act provisions which forbid incitement to racial hatred. That is because Moslems are not a racial group. Only on a highly technical view of the law could they indirectly obtain any protection.
As for the Jewish community, I can hardly speak on its behalf when the noble Lord, Lord Jakobovits, is present. But there is no doubt that many Jews find it offensive that they are protected against vile, anti-Semitic tracts only if they can be classified as a race or a racial group. Of course many Jews do not regard themselves as members of a racial group, but rather of an ancient religion.
We have tailored the amendment carefully so that it does not unjustifiably threaten the fundamental right to freedom of speech. The offence is committed only in the extreme circumstances where the defendant uses threatening, abusive or insulting words, or publishes such literature deliberately to stir up hatred—a word akin to violence—against groups because of their religious beliefs, and where such hatred is also likely to be stirred up.
The formula is much narrower, and rightly so, than the present offence of incitement to racial hatred which does not require proof of a deliberate intention to stir up racial hatred. The formula is also, I think rightly, narrower than the equivalent offence which one finds in the Public Order (Northern Ireland) Order 1987 which protects Moonies, oddly enough, and Scientologists, and which is committed even where there is no deliberate intention to stir up religious hatred.
We have chosen that narrow definition because of our concern to protect freedom of expression; for example, the freedom of Salman Rushdie to publish his controversial novel The Satanic Verses, and to interfere with free speech only where really necessary. As someone who, as counsel, was privileged to defend the publishers of The Satanic Verses against an attempt to extend the blasphemy law, the last thing I would wish to do is seek in any way to penalise the publication of that novel, and no one should suppose that an offence of this narrowness could be so interpreted. A further potential safeguard, if any of your Lordships are worried, is the requirement in Section 27 of the Public Order Act that no proceedings for an offence of that kind can be brought except by or with the consent of the Attorney-General. Again, that is a prophylactic safeguard to make sure that troublemakers and idiots of one kind or another do not seek to use the criminal law in a mischievous private prosecution.
Some may argue that there is no sufficient mischief to justify this step. That is not the view taken by those close to the ethnic and religious minorities in this country, who are in a position to know. I speak of the Commission for Racial Equality, the Runnymede Trust,

1741
the present Chief Rabbi, Dr. Jonathan Sacks, who broadcast on the subject in a programme earlier in the year, and leading moderate Moslem leaders and commentators as well as the great weight of opinion among the Anglican bishops.
I suggest that it is surely wiser to act now to discourage the spread of vile anti-Semitic and Islamophobic extremist propaganda and to create a legal framework which gives more equal protection—it will not be completely equal—to all religious groups in Great Britain as well as in Northern Ireland. Prevention is better than cure. It is surely better to enact the amendment now than to wait until it is too late for such an amendment to be really useful in combating the alienation and resentment that may be felt in particular by the large Moslem community in our country.
Perhaps I may make a lawyer's point but it is not an unimportant point. I hope that your Lordships will forgive me for mentioning it but it may become relevant on the international plane. The amendment also seeks to give effect to the obligations imposed upon this House as well as upon the Government by the International Covenant on Civil and Political Rights; it is the UN equivalent of the European Human Rights Convention. Article 20 of that covenant states:
"Any advocacy of religious hatred that constitutes incitement among other things to violence shall be prohibited by law".
Of course, it has not been prohibited in Britain but it has been in Northern Ireland. Article 2.2 of the covenant obliges the UK:
"to adopt such legislative or other measures as may be necessary to give effect to that obligation".
If the Government are opposed to this amendment I should be grateful if the Minister would explain what legislative or other measures are in place in Great Britain which would give effect to this aspect of the covenant. Inevitably, the matter will arise in New York next year when the Human Rights Committee considers our compliance with our international obligations.
Finally, I wish to thank the noble Earl, Lord Ferrers, for his care and fairness in discussing these arguments with the promoters of the amendment since the Committee stage. If it is accepted, I am confident that it will be widely and enthusiastically supported across the country by Christians and non-Christians alike. Indeed, it is difficult to identify any likely opposition to it. I also suppose that it will receive powerful support in another place.
10.30 p.m.
Lord Renfrew of Kaimsthorn: My Lords, I warmly support the amendment. I wish to draw attention to two aspects of the way in which it has been argued. The first, which I find particularly heartening, is that the amendment stands in the name of the right reverend Prelate the Bishop of Oxford. It is most heartening that an amendment which directs itself to the range of faiths in this country is proposed by a Prelate of the Church of England. As has already been made clear tonight, a number of us have been most uneasy that hitherto only the Christian faith—in particular, the Church of
1742
England—has been protected by law against blasphemy or opprobrium of a blasphemous kind. That is one aspect which is particularly heartening.
The other point to which I should like to draw attention has already emerged. It arises from the speech of the noble Lord, Lord Lester of Herne Hill. It relates to the freedom of speech aspect. I was extremely heartened to hear him say that in his view—and he is clearly well informed about this matter, as well as about many others—the publication of Salman Rushdie's book The Satanic Verses would not have been caught by the amendment. Perhaps I may express that: rather more clearly by saying that, had the provisions of the proposed amendment already been law, the publication of the book would not have infringed the law in terms of this new clause.
It is clearly very important that writers and others should be able to discuss religious matters and should be able to be critical of religious faiths in quite a severe way. No one doubts the severity of Salman Rushdie's words. But the amendment has been very carefully worded and it would be necessary to demonstrate that the author intends thereby to stir up hatred against any group of persons. I imagine that the noble Lord would argue, with justification, that Salman Rushdie did not intend to stir up hatred against the Moslem faith, even though there are clearly some members of that faith who infer that that was his intention. Clearly, there is a wide range of views on the matter. I was scandalised by the fatwa proclaimed against Salman Rushdie by certain Moslem clerics in another country.
It is extremely important that in this country we should maintain our traditions of liberalism and freedom of speech. It is very important also that we should move more successfully towards a multi-cultural society. This amendment is helpful and constructive in that regard, and, as I say, it is appropriate that it was moved by a Prelate of the Church of England.
Baroness Masham of Ilton: My Lords, I should like to say very briefly that, as a Roman Catholic convert, I have received such mail. Without doubt, it was threatening, abusive and insulting. I should say to the movers of the amendment that it is not easy to identify the authors of such mail because most of the letters that I received were anonymous. The only aid to identifying where they came from was the postmark.
Lord McIntosh of Haringey: My Lords, I ask a question, again, in all naivety. This is not a party political matter and I do not seek to persuade my noble friends to any particular point of view. But is it not a fact that threatening, abusive or insulting words or behaviour are already illegal, particularly if they are intended to stir up hatred against any persons? Why is it necessary to add the words:
"on the ground of their religious beliefs"?
Lord Lester of Herne Hill: My Lords, perhaps I may answer that question. The noble Lord is right in relation to racial hatred. That is covered by Sections 17 and 18 of the Public Order Act. However, there is no protection in relation to religious hatred.
Lord McIntosh of Haringey: My Lords, I do not believe that there is no protection. It is not protected under that section of the Public Order Act but threatening, insulting or abusive behaviour is against the law and can be pursued. The difficulties arise because of the attempt to provide without definition the additional criterion:
"on the ground of their religious beliefs".
Perhaps I may say to the noble Lord, Lord Renfrew, that I find it extraordinary that he should seek to adduce in support of the amendment the case of Salman Rushdie and the fatwa. I should have thought that the case of Salman Rushdie and the fatwa was a very strong argument against the amendment. Of course it is nonsense to say that The Satanic Verses is insulting to the Islamic religion. In that sense, the noble Lord is entirely right. Those few of us who have read the book and the even fewer who read the book with very great pleasure will confirm that without any difficulty.
But let us suppose that he had insulted the Islamic religion. Is that a reason why there should be special legislation in order to prosecute Salman Rushdie? The arguments which the noble Lord uses in the case of Salman Rushdie seem to be utterly in conflict with the conclusion which he reached about the amendment.
Lord Milverton: My Lords, I do not like to say so, but I agree with those who cannot see the point of the amendment. Surely the best way to prevent any kind of discrimination against any faith, any religion or any person is for each one of us, according to our faith, to have respect and honour for every human being. That respect and honour must be seen. If they are seen and if more and more people reflect them in their lives, surely that is better than any legislation. I am firmly of that view.
I do not believe that you can legislate and say that people must not act in a certain way towards another faith. According to my faith, Christianity, one has to bear that burden in love by simply saying, "Oh God, help those people". But I do not believe that you can do it by legislation: it must be done by showing the dignity and honour that you firmly believe ought to be given to any person, even if that person's belief and outlook are not yours.
We need to get back to the word "love" before any kind of legislation is passed. I see that the noble Lord wishes to intervene. I give way.
Lord Renfrew of Kaimsthorn: My Lords, I thank the noble Lord for giving way. However, does he have in mind the fact that the Christian religion is protected by a law of blasphemy? Does the noble Lord not find that asymmetrical in relation to the other faiths to which he referred?
Lord Milverton: My Lords, that be may so. But according to my experience of life I believe that Christianity has in many ways been blasphemed against by people; and, indeed, by Christians against Christians. Although we are supposed to be protected from it, I do not believe that that has worked out in practice. There are many Christians who have experienced not only a kind of blasphemy from non-Christianity to Christianity
1744
but also a pretty ghastly blasphemy and un-Godly love of Christians to Christians. I can say that because in my experience in my ministry I have both seen and experienced it.
Baroness Seear: My Lords, I believe that this point was made when a similar amendment was debated in Committee. There is already protection for the Christian religion, especially in respect of the Church of England. The argument that was made in Committee needs to be put forward again this evening in view of the comments that have been made. The legislation gives a privileged position to one faith in what is now a multi-faith society.
Therefore, as I see it, the option is that either we have to get rid of all protection and remove the existing law which protects the Church of England or we have to extend the law to cover the other faiths. It is not defensible to have provisions which are particularly favourable to one faith in a multi-faith society. Although it is not mentioned in the amendment, the real argument is whether we get rid of the protection as regards the Church of England. That is why it is necessary to have new legislation now. We do not accept the idea that we have to get rid of all protection, but if we do not do so the discrimination in favour of one faith will become increasingly unacceptable in a multi-faith country.
Lord Jakobovits: My Lords, after the reference to my presence by the noble Lord, Lord Lester, I suppose my support for the amendment can be taken as read. I rise merely to add two thoughts. To me, representing a minority faith, such words as I have heard were most comforting. Exposed as we have been to the expression of hatred on a massive scale—and, indeed, we still are —to have heard the words that were uttered tonight by my dear friend the right reverend Prelate and by his supporters was a source of profound gratification.
When the issue of the possible amendment of the blasphemy law was raised I did not support any change in the existing law. I believe it is only right that this law, protecting as it does specifically the established Church, should stay as it is because it is part of the culture, the history and the ethos of this country and I would not want it in any way to be compromised or to be amended.
However, if I support the amendment before us tonight, I do so not merely because I believe that religious minorities need the kind of protection that is available for others. It is not a case of the minorities only; it is the majority that requires the protection enshrined in the amendment. Any society that allows what I would call verbal violence to be practised against any part of that society is itself becoming depraved and is missing one of the ingredients of a civilised order.
If we allow in society—irrespective of the sufferings to minorities that may result—people to ride roughshod over others' most profound and most sacred beliefs, then that society is defective. Therefore we should ensure for the sake of both the minorities and the majority that we maintain levels of decency and respect for one another. At a time like the present we see so much hatred being built up and generated with results that are utterly beyond imagination in terms of human suffering. We shall contribute here both to the welfare of the majority and to the welfare of the minority if we

1745
enact the proposed amendment. We will thus make sure that we do not allow our mouth, as it were, to be defiled by insulting the beliefs, convictions and religious commitments of other people, whatever their denomination.
10.45 p.m.
Lord Hylton: My Lords, I welcome the amendment. I cannot speak in any official way for the Catholic Church. Nevertheless it seems to me that the wording of the amendment fits in extremely well with the documents of the second Vatican Council, and in particular with the decree on religious freedom, the document on Judaism and its condemnation of anti-Semitism. I hope very much that the amendment will be approved and that it will give particular reassurance to Moslems living in Britain. I hope, as a consequence, that British Moslems will use their influence to reduce and, I hope, eliminate the persecution of Christians in such countries as Egypt, the Sudan, Iran and Pakistan. As to the drafting of the amendment, I was a little surprised to see that it spoke of Great Britain and did not mention Northern Ireland. I think perhaps I can be reassured that that point has already been covered for Northern Ireland in a public order regulation.
Lord Sefton of Garston: My Lords, I always become amazed when we start to discuss religion because I find myself in tune with so many people from the religious field that I almost believe I am becoming religious. However, I am not religious, and some noble Lords here will know that. Three years ago I tabled an amendment or a resolution to abolish the law of blasphemy. I was persuaded, like the noble Lord, Lord Lester, not to proceed with it. I was glad to hear that the noble Lord decided at one stage in his career to try to abolish the law of blasphemy. Now, it seems, the noble Lord has adopted another method of approach. It almost appears that the noble Lord wants to extend the protection of the blasphemy law to other religions. The noble Lord shakes his head. I did not say the noble Lord intended that. I said it seemed to me that that was what was happening; that the noble Lord was going to leave the law in regard to the Church of England alone but was seeking to give the same protection to other religions. If that is not, in practice, extending the law of blasphemy, I have never heard anything nearer to it. We were told by the right reverend Prelate that he had some reservations about the amendment. Other speakers have had reservations but nobody has opposed the amendment. I am bitterly opposed to it.
I started my political career in Liverpool. I shall give a small quotation that used to circulate in Liverpool and which has some connection with the Northern Ireland problem, which was referred to by the noble Lord, Lord Jakobovits. It was a question of one Christian sect against the other. A small magazine which one printed had the headline:
"Hammer away ye hostile bands. Your hammers break. God's anvil stands".
That is stupid. I have seen people battered over the head in Liverpool because of that kind of belief. The amendment would evidently outlaw it.
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The amendment would also outlaw the fatwa on somebody in this country which still exists. Nobody is going to prevent me from standing up in public and saying that I detest the very idea of somebody being condemned to death because he wrote a certain book which offended a religion which is based on a supernatural myth which I do not recognise. If that is interpreted as preaching hatred against the sect that would do such a thing, so be it; but I shall do it.
Does anybody in this Chamber think that I am preaching hatred by saying that it is thoroughly detestable for one religious organisation to establish a fatwa on those grounds? Will anybody stand in this; Chamber and say that I am wrong? There is more than respect for people's religions. There is respect for people's honesty. I believe in being honest.
If someone tells me that the religions are succeeding in establishing humanity among men I point to Northern Ireland. Northern Ireland is the classic example of where religions have gone mad. So I am against the blasphemy law. I am against any further protection for religious bodies which are based upon the supernatural. Of course the noble Lord, Lord Lester, should have gone for the abolition of the blasphemy laws. We should pursue that and allow people to act in accordance with their beliefs, but remembering all the while that it is, only a belief.
There should be a moral lesson to be learnt from the number of attendees compared with the attendance when we debated smoking. We were told that the amendment moved in relation to smoking should not have been pinned upon the back of another Bill. Nor should this amendment have been pinned on the back of this Bill. I hope that the Government will reject the amendment, but without any establishment of principle. This is not the proper place to do this. The proper action —as somebody said in relation to the banning of advertising for a legal product—is to bring forward a Bill. I shall give your Lordships a treat: I shall bring forward a Bill. It will deal with the abolition of blasphemy. Then we can debate the wisdom of saying, in effect, that you can bring a group of religions together. Let us face it honestly and in the open. You can have the Moslems saying something, and the Jews saying something and the Christians saying something —all blaspheming each other. Then people say, miraculously, it is all religion and they are all united.
I conclude on this note. I have said before and shall say again, that we are talking about a multi-cultural society. Whenever people talk about a multi-cultural society—and I listened deliberately until everyone who wanted to speak had spoken, and they all talked of a multi-cultural society—they ignore the one main element in our society. It has nothing to do with religion. The vast majority of people in this society of ours could not care less about religion. They worship Mammon, not a god. That is the society that we have. It is a secular society. But no one mentions that until I do. Then people say to themselves, "He's a funny chap. He's a mischief maker. He's a trouble maker". I wonder what is said about me when I say what I think about the Moslems, or about the people who deliberately segregate the children of Northern Ireland until they reach the stage when

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young girls and boys cannot be trained together. I shall certainly be laid open to a new charge if the amendment is carried.
As I said, I could speak at length. I learnt my politics in a city in which religion was used to divide working class people, and to turn them on to the streets fighting, and the politicians of the day were glad of that. I have seen the sham of modern religion. I have noted the dishonesty about people who seek to say that the Jews, the Christians and the Moslems are all the same. They are not all the same. Those faiths are fundamentally different and they should recognise that factor and not try to dress it up, as they do, in order to preserve the congregation.
On a quiet note, and for the first time in my career in this Chamber, I appeal to the Government to reject the amendment on the grounds that this is not a suitable Bill for the provision. I ask everyone to look forward to debating the real issue of whether the blasphemy laws should be abolished with all the other restrictions.
Lord Marlesford: My Lords, I am sympathetic to the intention of the amendment, and to many of the points raised in support of it. However, I wish to ask the proposers whether we could study more closely the wording of the amendment. It seems to me that the provision would prevent campaigning, denouncing and advocating most strongly against what some would call religious beliefs but which would probably be universally condemned in this House. I cite, for example, witchcraft, wizardry and black magic. Would the amendment as drafted give protection to what I am sure would be claimed as religious beliefs from those who would wish to denounce them and to campaign strongly against them?
Earl Ferrers: My Lords, I am grateful to the right reverend Prelate the Bishop of Oxford, and the noble Lord, Lord Lester of Herne Hill, for giving your Lordships the opportunity to discuss the issue of religious hatred quite separately from the law on blasphemy. I think this is sensible, as the issues are different in many respects and are best treated separately. I am also grateful to the noble Lord and the right reverend Prelate for coming to see me after the Committee stage to discuss with me their anxieties and their approach to the matter. This is a sensitive and delicate matter which goes to the core of people's fundamental beliefs and attitudes to life. It therefore has to be approached with caution and with care.
Perhaps I may say at the outset that the Government have considerable sympathy in principle with the approach which is adopted by the amendment. Its purpose is to extend the existing law in Part III of the Public Order Act 1986, which makes it an offence to stir up racial hatred, to include hatred which is stirred up against people on religious grounds. That is a cause which has great attractions. It is also consistent with the important principle of ensuring that freedom of speech is only curtailed when there are clear and compelling reasons for that to be done.
Successive governments have taken the view that the basis for restricting freedom of speech should only be
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when it poses a threat to public order. That is why Part III of the Public Order Act sets the high test it does, which is that of hatred. That is a very high test. I welcome the recognition in the amendment that this has to be the only basis on which we can justify extending the law to offer protection for religious groups. Hatred is a high threshold and it is a very unpleasant emotion, whether on racial or religious matters. That is as it should be. Freedom of speech is not something which any of us would like to see curtailed other than where it is absolutely necessary.
Unfortunately, the amendment as drafted would not be consistent with the existing provisions on racial hatred in the Public Order Act. The test in the amendment would be higher than that in Part III of the Public Order Act. It would be necessary to prove that a person both intended and was likely to stir up religious hatred. Under Part III, those tests are offered as alternatives. The amendment also carries no penalty and makes no links with the equivalent offences of stirring up racial hatred or the provision which covers the related offences; for example, the publication and distribution of material or broadcasting, all of which are offences relating to the incitement of racial hatred.
If the amendment were to be accepted as it stands, it would be an offence to display material which was intended to stir up religious hatred but it would not be an offence to publish, distribute or be in possession of such material. I am sure that it would not be the intention of the right reverend Prelate and the noble Lord, who put down the amendment, to create anomalies. I would not wish to labour the difficulties but it is proper to draw attention to them. They are points which would have to be ironed out before anything could pass into law. We would also have to consider whether any offence of religious hatred should include all the provisions which at present apply only to incitement to racial hatred, including the requirement for the Attorney-General's consent before a prosecution can proceed.
I do not believe that, appalling though the stirring up of hatred on religious grounds may be, we have yet seen significant evidence to suggest that hatred is being stirred up on religious as opposed to racial or ethnic grounds. There is an equivalent provision in Northern Ireland, but the circumstances there are, of course, very different. One might have expected to see much clearer evidence of incitement to religious hatred there, but the provision has been used only twice since its introduction some 20 years ago and not at all in the last decade. The House needs to be clear that this amendment, or any law against stirring up religious hatred, would not deal with comments or behaviour on religious matters which are felt to be unfair, offensive or even deeply insulting. However distasteful they may be, they do not amount to stirring up religious hatred and they should not be criminal offences.
The Government are very concerned that any change in the law in this area should be properly considered. I have grave doubts about the wisdom of introducing a measure of this sort at such speed and at such a late stage in the Bill, although I concede that that is not the fault of the right reverend Prelate or the noble Lord, Lord

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Lester. It has been their only opportunity and they have quite rightly taken it. But there is so much potential for its effect to be misunderstood. The amendment could raise expectations that religious belief is now going to be protected against criticism or insult. That would not be its effect and the Government do not believe that it should be. But without very careful consultation over the purposes and the effect of any change in this area, many people and, I fear, many Moslems in particular, might be deeply critical of any law when they realised that the expectation that religion was to be protected from vilification was not going to be met. They might well feel let down and misled.
Perhaps I may refer to what the most reverend Primate the Archbishop of York said in Committee:
"The point is that legislation arouses expectations. If a new criminal offence is put on the statute book without a reasonable expectation that it will prove effective, it may do more harm than good. That is particularly important in this case, where we are very properly seeking to protect and reassure groups which feel themselves to be vulnerable. If the legislation proves to be ineffective or is found to be directed towards the wrong target, such groups, which may be placing great hopes in Parliament to do something for them, will feel particularly let down".— [Official Report, 16/6/94; col. 1894]
So said the most reverend Primate the Archbishop of York at Committee stage. I believe that the most reverend Primate was right.
There also remains the question of defining religion. An earlier amendment tabled by the noble Lord, Lord Lester, and the right reverend Prelate the Bishop of Oxford attempted to deal with this tricky matter. Unfortunately, it did not prove to be workable. We need to be clear about what the effect of leaving religion undefined in this way would be. Based on previous relevant rulings in this area, I am bound to say to noble Lords that it is difficult to see how the provisions in this amendment could not include the protection of some extreme sects and cults.
I have listened carefully to the arguments put forward this evening, and I understand the support there is for a measure that will deal specifically with religious hatred. I think that most of us feel that there is a good cause for that. But it is clear from the number of attempts that noble Lords have made to find a suitably worded amendment that it will not be easy to get it right. If we are to legislate in such a sensitive and complex area it is essential that we get it right. I do not believe that I could advise noble Lords that it would be sensible to support this amendment, for the reasons I have given. I think it would be difficult to attempt to bring forward a new amendment to cover all the pitfalls that we see at such a late stage in the Bill, especially when so many matters concerning the practical operation of the law have yet to be fully explored.
The noble Lord, Lord Lester, was concerned about our obligations under the United Nations convention on civil and political rights. The United Kingdom has formally entered a reservation on Article 20 recording our view that the article must be read with the articles protecting freedom of expression and freedom of assembly and reserving the United Kingdom's right not to introduce fresh legislation on the subject. The reservation reflects the difficulties that we see with the noble Lord's amendment.
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This is a deeply complex issue, which needs to be very carefully thought out. It needs thorough consideration, as the most reverend Primate the Archbishop of York said in Committee. We are certainly prepared to listen to any evidence of a real problem in this area, and in the light of that to consider how best it should be addressed. We have had discussions with religious groups on the subject through the Inner Cities Religious Council; and my right honourable friend the Home Secretary recently discussed it with a group of Moslem leaders. We will continue to use these routes to explore the issues with the care and thoroughness they deserve.
I hope that the right reverend Prelate the Bishop of Oxford, and indeed the noble Lord, Lord Lester of Herne Hill, will not feel that I have unduly dampened their enthusiasm. I understand the reasons that prompted them to put down the amendment, but I suggest that it needs more thought than any of us has been able to give to the problem so far.
The Lord Bishop of Oxford: My Lords, I am very grateful to all those who have spoken. I have been very encouraged by the degree of support shown by the House for the amendment. I am particularly grateful to the noble Earl the Minister, not only for the sensitive way in which he has handled the issue this evening, but for his courtesy in seeing the noble Lord, Lord Lester, and myself and discussing the matter with great seriousness and in depth.
The noble Earl expressed some concern about the exact form of wording. I believe that I speak for the noble Lord, Lord Lester and myself when I say that, if the Home Office lawyers can come up with an improved form of wording, I am sure that it would be acceptable to the House as a whole.
The noble Earl also mentioned the reservations of the most reverend Primate the Archbishop of York. I have had contact with the Archbishop and spoke to him about the form of wording. He was quite enthusiastic about the form of words. Unprompted, he said, "Well, yes, that really sounds quite good."
It is true that in his earlier speech to your Lordships' House he put forward the very serious consideration that this amendment, if passed, might arouse expectations which could not be met. I tried to deal with that objection in my opening remarks. But a more crucial consideration is the fact that there is a very great deal of resentment in some other faith communities at the moment that they do not receive from the law the kind of protection that the Church of England has. Only if they feel that there is something for them in the statute book can we get on to the very serious business of helping people to distinguish between legitimate criticism, however hurtful, and outrage, which is intended only to stir up hatred.
I can assure those noble Lords who are anxious that this measure might limit freedom of speech that there are no more passionate defenders of freedom of speech than the noble Lord, Lord Lester, and myself. But this amendment is very tightly and narrowly worded, so that there would be no way in which Salman Rushdie and what he said, for example, could be prosecuted under

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such an amendment. We are concerned with material that is intended to stir up hatred. That would be quite hard to prove.
I am very reluctant to keep people in the House for much longer this evening. But there has been a lot of support for this amendment. I believe that it would be helpful both for the Government and for the other place if people were able to express their opinion on this issue. I ask that we may be allowed to express our opinion on this particular amendment.
11.12 p.m.
On Question, Whether the said amendment (No. 152) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 96.

Division No.5

CONTENTS

Bonham-Carter, L.

Mayhew, L.

Donoughue, L.

McNair, L.

Faithfull, B.

Oxford, Bp. [Teller]

Gould of Potternewton, B.

Redesdale, L.

Graham of Edmonton, L.

Renfrew of Kaimsthorn, L.

Hamwee, B.

Richard, L.

Harris of Greenwich, L.

Seear, B.

Hylton, L.

Sefton of Garston, L.

Jakobovits, L.

Taylor of Blackburn, L.

Jeger, B.

Tordoff, L.

Lester of Herne Hill, L. [Teller]

Wigoder, L.

Lockwood, B.

Winchilsea and Nottingham, E.

Mackie of Benshie, L.

NOT-CONTENTS

Ackner, L.

Harvington, L.

Aldington, L.

Hemphill, L.

Annaly, L.

HolmPatrick, L.

Arran, E.

Howe, E.

Ashbourne, L.

Kilbracken, L.

Astor, V.

Kimball, L.

Balfour, E.

Lauderdale, E.

Belhaven and Stenton, L.

Lawrence, L.

Blatch, B.

Long, V.

Brabazon of Tara, L.

Lothian, M.

Brougham and Vaux, L.

Lyell, L.

Burnham, L.

Mackay of Ardbrecknish, L.

Carlisle of Bucklow, L.

Mackay of Clashfern, L. [Lord

Camock, L.

Chancellor]

Carr of Hadley, L.

Macleod of Borve, B.

Chalker of Wallasey, B.

Marlesford, L.

Clanwilliam, E.

Massereene and Ferrard, V.

Colwyn, L.

McIntosh of Haringey, L.

Cork and Orrery, E.

Milverton, L.

Courtown, E.

Morris, L.

Craig of Radley, L.

Mottistone, L.

Craigmyle, L.

Mountevans, L.

Cranborne, V.

Nickson, L.

Cumberlege, B.

Norfolk, D.

De L'Isle, V.

Northesk, E.

Dean of Harptree, L.

Orr-Ewing, L.

Denham, L.

Oxfuird, V.

Denton of Wakefield, B.

Palmer, L.

Dixon-Smith, L.

Perth, E.

Downshire, M.

Rawlinson of Ewell, L.

Elphinstone, L.

Renton, L.

Falkland, V.

Rodger of Earlsferry, L.

Ferrers, E.

Rodney, L.

Fraser of Carmyllie, L.

Saint Levan, L.

Gainsborough, E.

Salisbury, M.

Gisborough, L.

Saltoun of Abernethy, Ly.

Glenarthur, L.

Sanderson of Bowden, L.

Goschen, V.

Seccombe, B.

Gray of Contin, L.

Skelmersdale, L.

Harmar-Nicholls, L.

Soulsby of Swaffham Prior, L.

Harmsworth, L.

St. Davids, V.

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Stanley of Alderley, L.

Trumpington, B.

Stockton, E.

Ullswater, V. [Teller]

Stoddart of Swindon, L.

Vivian, L.

Strange, B.

Wakeham, L. [Lord Privy Seal.]

Strathclyde, L.

Walton of Detchant, L.

Strathmore and Kinghorne, E.

Warnock, B.

[Teller]

Wynford, L.

Torrington, V.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
11.21 p.m.
Clause 143 [Prohibition on use of cells from embryos or foetuses]:
Lord Walton of Detchant Lord Walton of Detchant moved Amendment No. 152A:
Page 117, line 8, after ("line") insert ("except where the nucleus has been removed or inactivated").
The noble Lord said: My Lords, it will not have escaped your Lordships' attention that, when earlier tonight the amendment proposing the ban on tobacco advertising, to which I had attached my name, was criticised very powerfully from various parts of the House, it was suggested that the amendment had been inappropriately tabled in a Bill dealing with an entirely different topic. At the Committee stage many of your Lordships, in considering Clause 143—it was then Clause 138—expressed concern over the somewhat indecent haste with which an amendment to the Human Fertilisation and Embryology Act dealing with an entirely different topic had been tabled in another place. However, I would make the point that the amendment which I have tabled tonight to this clause is in a single line and certainly not in five pages.
When that clause was inserted into the Bill in another place, almost universal concern was expressed by the medical and scientific bodies in the United Kingdom over the way in which it had been inserted at a time when the Human Fertilisation and Embryology Authority, a statutory authority established by government to consult public and scientific opinion widely on the use of foetal tissue—foetal ovarian tissue in particular—was undertaking at the request of government a very extensive consultation exercise. The views expressed by, for example, the Royal Society, the Medical Research Council, the BMA and many other bodies, were that the acceptance of that amendment as a part of this Bill—the Criminal Justice and Public Order Bill—sent out a signal to the scientific community which would have the effect of discouraging research using such tissue.
Let me make it clear that I do not intend tonight to labour again at that point, which was made extensively at the Committee stage. I wish to stress at the outset that it is not my intention, nor the intention of those who have supported the amendment, to seek any overturning of the prohibition which exists in this clause preventing the use of foetal ovarian tissue in the programmes of fertilisation of adult females. I wholly accept that the intention in tabling this clause in another place was to prevent the use of foetal ovarian tissue for that purpose. In fact, it is virtually certain, as has been said before, that any such use would at least have lain some 10 or 20 years ahead and it is also virtually certain, in my contention, that the result of the consultation exercise

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still continuing would have meant at the end of the day that the Human Fertilisation and Embryology Authority would have accepted a ban on such tissue for the fertilisation of adult females.
One point which is of crucial importance is to recognise that research on donated ovarian tissue—the study of the maturation and development of such tissue, including the use of techniques of tissue culture—is likely in the ultimate to make treatment of infertility much more successful in years to come. It is also clear from evidence already available that the use of donated eggs from adult females used in such research is infinitely less valuable than the use of immature eggs derived from foetal tissue. Such research is likely not only to cast light on the causes of infertility, on the causes and prevention of miscarriage and the cause and prevention of ovarian cancer but also to be helpful in the prevention of genetic malformations, of inherited diseases and of the premature menopause.
Ultimately too such research involving the use of eggs derived from foetal tissue (aborted foetuses) is likely in the longer term to improve techniques of in vitro fertilisation and the treatment of infertility but not involving the use of such eggs for fertilisation, as I said, of the adult female.
I had the privilege of seeing a document of the Royal Society produced in response to the HFEA consultation exercise. It was drawn up by a committee chaired by the distinguished geneticist, Professor Richard Gardner, and now accepted by the council of that society. It sets out all the potential uses of research involving foetal ovarian tissue. But it ends by making it quite clear that the Royal Society would be opposed, as indeed I am personally, to the use of foetal eggs for the fertilisation of adult females.
What I seek first tonight, I hope as a means of reassuring the medical and scientific community of this country, is that the clause at present standing in the Bill does not discourage or ban the use of foetal ovarian tissue in research with the kind of objectives which I have set out. I take heart in reading the clause in the Bill, however inappropriate it may be for it to appear in a criminal justice Bill, stating that
"No person shall, for the purpose of providing fertility services for any woman"—
which I understand to mean fertility services for an individual woman. I believe that the remaining clauses are subservient or secondary to that clause. I trust that the Minister will be able to give the assurance which I believe that the scientific community seeks—that the use of such tissue in research which may in years to come lead to major developments in treatment is not likely to be banned by the clause as it stands.
I turn now to the important issue addressed by the very brief amendment which I have set down, supported by the noble Baroness, Lady Warnock, and the noble Baroness, Lady Jay of Paddington. This relates to one single issue only which was not recognised as likely to be important when the Human Fertilisation and Embryology Bill was debated in your Lordships' House.
That Bill very properly bans nuclear exchange. The clause on nuclear exchange was included to prevent the
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cloning of human embryos —a situation which might have led, and could have led, if approved, to the development of genetically identical embryos. What was not fully appreciated at that time was that the same clause would ban what is known as cyto plasmic exchange, where the object was to change the cytoplasm rather than the nucleus of an embryo produced by straightforward in vitro fertilisation, which is the product of an egg fertilised by sperm from the woman's partner.
It is important to understand why that major potential therapeutic application was overlooked. When the Bill was passed medical science had not yet discovered the extent to which major disease could be caused by defects in the mitochondria. Perhaps I may try briefly to explain again what I tried to explain in Committee. The nucleus of the cell contains some 75,000 genes; 99 per cent of the genetic material of the cell is included in the nucleus. But within the cytoplasm which surrounds the nucleus lying within the membrane of the cell are the energy-forming structures which produce energy in that cell called mitochondria. Those mitochondria contain 37 genes in comparison with 75,000 in the nucleus.
Mitochondrial inheritance is peculiar. It is transmitted only by the female. It cannot be passed on through the male. We now recognise that there are many serious, crippling diseases, some less serious than others, but some causing mental defects, dementia, epilepsy, late onset diabetes, and many other diseases, including others causing paralysis of the muscles, which are due to disease of the mitochondria.
The curious thing is that a woman with one or two minor defects in her mitochondria may appear absolutely normal but may pass on severe mitochondrial disease to her children. The purpose of the amendment is merely to include a provision that at an appropriate time in the future, when the research becomes practical, and when a licence for such work might be provided by the HFEA, the possibility of transferring cytoplasm carrying normal mitochondria to the cell of a woman with mitochondrial disease who is likely to have severely affected children might become feasible.
It is a minor but crucially important point in the prevention of serious human disease. I accept that it is a form of gene therapy. It would have to be recognised and approved by the HFEA. Such cytoplasmic transfer could have no effect other than to allow a woman likely to pass on those serious conditions to her children of either sex, in the course of in vitro fertilisation, using her husband's sperm, to have normal children. It is for that reason that I have tabled the amendment which I regard as being very important for the future of human health. I beg to move.
The Duke of Norfolk: My Lords, I should like to point out some of the deeper implications of this short amendment. If the egg or germcell has had its nucleus removed, or inactivated, as is said in the amendment, it is impossible for it to develop further. Therefore, if it is to be used in fertility procedures, the nucleus must be replaced, and once one does that one interferes with the germline.

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Virtually every medical and scientific body in Europe and, I am sure, in the world, has condemned manipulation of the germline because of the great hazards which could result. Consequently, both Houses, supported by the Government, deliberately outlawed such procedures in the Human Fertilisation and Embryology Act 1990. The amendment tabled by the noble Lord, Lord Walton, would make a fundamental change to that Act, allowing a procedure which would involve manipulation of the germline; the DNA process.
At the Committee stage the noble Lord, Lord Walton, spoke of what he claimed might be achieved if doctors were allowed to carry out cytoplasmic exchange. My pronunciation might be wrong but I believe that the noble Lord understands it. I have already told your Lordships that my Greek is very bad. I learnt Greek for only a short time at school; I was in the half of the class that did not continue with it after the first six weeks. "Cytoplasmic exchange" is removing the nucleus of an egg (germcell or oocyte) and replacing it with a nucleus from another egg. This, the noble Lord, Lord Walton, claimed, would be used to free the baby and its descendants from mitochondrial disease, which is an extremely rare condition.
However, it is essential to understand that this procedure —that is, exchanging the nucleus of an egg —would involve interfering with the DNA content. At present that is expressly forbidden under the Human Fertilisation and Embryology Act because of the dangers to mankind and the fact that it could well lead to cloning. I repeat that it could well lead to cloning.
The mitochondria, which was referred to by the noble Lord, Lord Walton, generates the energy by which the cells function, and nobody at this stage in time knows the complete role of the mitochondrial DNA in the genetic mechanisms that operate within cells. The best simile that I can use to explain this in layman's terms, rather than scientifically, is that, if we extracted the yolk of an egg and replaced it, the yolk would have a different DNA structure, while the white of the egg would continue to have the original DNA. At the moment nobody knows the interplay between the two and what might be the ultimate effect of the exchange.
It is extraordinary that we should be called upon to legalise such a fundamental change through an amendment. The matter is of such major significance that it should be considered only after full debate at all levels of society and not introduced in this back-door manner by an amendment.
However, not only would the amendment allow us to exchange the nucleus of one germcell for another, as if that were not enough, it would also allow even greater changes to the Human Fertilisation and Embryology Act. In Section 3(2) (d) of that Act, one form of cloning is outlawed by forbidding the replacement of a nucleus of a cell of an embryo with a nucleus taken from a cell or any person, embryo or subsequent development of an embryo.
The amendment appears to get round that because the cell from a person, embryo or subsequent development of an embryo could be inserted into an egg from which the nucleus has been removed. There is nothing in the
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noble Lord's amendment to stop that and I am told that it is scientifically possible that the cell so treated may then develop like any other embryo. I leave your Lordships to recognise the dangers of that.
I recognise the fact that at this point in time at least the use of any such procedures will be in connection with avoiding some disabilities. We do not know that for certain, but let us accept that that is what scientists will seek to do. However, the fact is that we in this House will be passing a law to allow the production of a baby with two genetic mothers, with all the terrible emotional effects that that could have on a child.
In addition, I must repeat what I said at the beginning. We have no idea of the short-term or long-term effects of interfering with the DNA. Added to that, it would drive a coach and horses through Clause 143, tabled by Dame Jill Knight, which aims to outlaw the use of foetal eggs for fertility treatments. I beg the House not to agree to Amendment No. 152A.
Baroness Ryder of Warsaw: My Lords, I endorse everything that the noble Duke, the Duke of Norfolk, has said. I should explain that I witnessed the results of such research and experiments by the Nazis. Your Lordships may think that that is long ago but it is still extremely relevant today.
It is quite horrendous to think that we, as mere mortals, are, to be quite frank, messing around with so-called research which is no business of yours or mine. Surely those matters should be left to the creator of the universe. As I have said before in quoting from the Book of the Hebrews:
"To be alive is no man's gift; it is God's gift".
Lord Rawlinson of Ewell: My Lords, it is 20-to-12 and the fourth day of our consideration on Report of the criminal justice Bill. Through the amendment we are asked to consider some of the most profound matters —the origins of life and death—in a Bill designed to deal with criminal behaviour.
At this hour, is the House going to accept what is proposed so that we can discover then whether those human cells will or will not help people? The effect of the amendment will alter the provisions of the 1990 Act which was passed four years ago. It passed through all its stages after mature consideration and discussion. We had the opportunity to amend it. It was then enacted into the law.
At 20-to-12 on the fourth day of Report stage—I say that again—is the House going to accept an amendment which deals with matters of such importance? Of course, it is perfectly proper to table such an amendment so that the House can consider the matter. But we should look at our obligations as legislators and as men and women. It is said that war is too important to be left to the generals and the soldiers. This matter is too important to be left to the doctors and the scientists. It should be understood and recognised that there is great public unease about all these matters.
I do not include the noble Lord, Lord Walton of Detchant, in this, but there is among much of the community of scientists and doctors a condescension towards the ordinary layman's point of view—that of a

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man and woman making and bringing up a family. I beg your Lordships not to consider a matter of such great importance at this stage and at this hour.
11.45 p.m.
Baroness Jeger: My Lords, I would not dare to enter into the scientific aspect of this matter, but I must part company with the noble Lord who has just spoken about the time.
I should point out to him that it was at a later time in the other place that that unfortunate amendment was spatchcocked into a Bill where I consider it was totally irrelevant. In my day—I do not wish to sound vain— when I was chairman of Standing Committees in the other place, we had a very strict rule with regard to the relevance of amendments.
I am very much opposed to the present practice of amendments which do not belong to the main purpose of a Bill being stuck in in such a way. I must remind the noble and learned Lord opposite—who, I believe, shared some of my years in the other place—that we passed marvellous Bills at dawn. We cannot decide on the Tightness or wrongness of legislation by looking at the time on the clock. That is not our duty—
Lord Rawlinson of Ewell: My Lords, I am grateful to the noble Baroness for giving way. However, does she really think that it is to the credit of Parliament— even during those days when we sat in another place —that we did really good enaction of law at four o'clock in the morning?
Baroness Jeger: My Lords, if the noble and learned Lord thinks that the time of night means that the business is not very good, then what does he think about the spatchcocking of the amendment when it was passed in the other place at an even later time of night? He seems to be saying that we should not take any notice of anything that goes on late at night.
However, I also have a constitutional problem. I understand that the statutory authority has sent out thousands of invitations asking people to comment on this important matter and that the final date for receipt of those scientific responses is the end of July. I do not think that anyone can tell me that I am wrong in my understanding. I have received many letters from scientists who realise that I know less than nothing on the subject. They say that the question that the House should be deciding concerns the decision that is taken by a statutory authority to invite discussion—that is, open government and freedom of expression.
Many of my friends who are involved in such matters have taken much time to send in their views and representations. But they are now writing to me saying, "We have wasted our time; Parliament is making a farce of discussion and of invitation as regards collecting our views". Before the end of July, which is the closing date for the exercise, Parliament has suddenly decided, "We don't care what you lot say. We are not interested in the result of this so-called discussion; we are going to bang this out".
I simply ask the House whether we can delay the decision until all the responses have been received at the end of July. Let us remember that it is a statutory
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authority that has invited such discussion. Therefore, to ignore it is an offence to all those who have spent their time and expertise in sending in very detailed responses. I do not understand why there is such a hurry to settle the matter. Apart from all the clever scientific detail, which I do not understand, I do try to understand the value of democracy and discussion. I totally support the amendment because I believe not only that the clause which was passed in another place contains scientific problems that I do not understand but also that it is undemocratic and an offence to those who have tried to put forward their views in response to a request from a statutory authority established by Parliament.
Lord Ashbourne: My Lords, I feel like a Grade 6 medical student who is having trouble with his finals. We have heard the smooth tongued Lord Walton pouring medical verbiage at us and I am afraid that I am too stupid to understand most of it. I would merely urge the House to take the advice of my noble friend the Duke of Norfolk and vote against this amendment.
The Earl of Perth: My Lords, the amendment of the noble Lord, Lord Walton—I think I quote his words rightly—was brief, and I think he also said it was minor. If I may say so, the trouble with the noble Lord, Lord Walton, is his great skill and his great medical and scientific knowledge, which, so far as I am concerned, obfuscate the real issue. The real issue, as we have heard the noble Duke and many other people say, is a moral one and it is one of great importance. It is an issue which should be debated—if it is to be debated—on its own, after, as the noble Baroness, Lady Jeger, said, more information is known on the various aspects of it but, more importantly, after public opinion has been fully alerted to what it is all about.
What is proposed is that a fundamental change—as we have heard said already—to the Human Fertilisation and Embryology Act 1990 is made now. I feel that this is really a wrong thing even to contemplate. I hope very much the noble Lord, Lord Walton, will reconsider or not press this amendment to a Division.
Baroness Warnock: My Lords, I am not a scientist and I am not a doctor but I am a patient of doctors and I believe that medical research is of the greatest possible importance. I also believe, deeply, that one cannot come to moral conclusions without basing those conclusions on a thorough understanding of what it is one is making a moral judgment about. Therefore I am deeply grateful to the noble Lord, Lord Walton, for his explanation of the structure of the human egg, which was really not known at the time that the committee of which I had the honour to be the chairman sat. We knew nothing, and the medical profession and scientists knew nothing, about the kind of genetic defect which occurs only in the outer coating of the egg and not in the nucleus.
It is of the greatest importance, I think, to try to limit the damaging effect that this clause will have on medical research and on the treatment of genetic diseases of a particular kind, not immediately but in the long-term future, and the damage which might also be done by this clause to the discovery of more knowledge about the causes of infertility. We are not talking in this

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amendment about using the foetal material for the treatment of infertility. I think we all agree that the clause as it stands deals with that problem and criminalises it. I personally have said before—and I repeat—that I think this Bill would be a better Bill if that clause were not in it, but it is there and it will stand. But I believe that this amendment will modify it. It is a minimal amendment that will limit the damage to medical research in this country. I believe that the damage will be very severe unless this amendment is accepted.
Therefore, I urge your Lordships to listen to the precise point that is being made in the amendment and to recognise how limited the amendment is. However, it will open the door to future research which in 10 or 20 years may have a profound effect, particularly on women who pass on these extremely serious diseases to the female line. This is something we are not accustomed to. It is a new discovery. I believe that if we shut the door on research on that particular kind of genetic disease we shall be doing a great disservice not only to scientists and the medical profession but to women in this country and to the reputation of scientific research in which we have the lead at present. I support the amendment very strongly and recommend it to your Lordships.
Lord Milverton: My Lords, there is a great deal of unease about this matter. One has searched one's heart. In relation to all the material one has received one has examined oneself not only morally but spiritually. I am very uneasy at the way that it seems we can say, "Let's go on and on".
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It is said that this is a minimal amendment. But how far have we gone? If we accept this minimal amendment I believe that it could be a step too far. We should start to treat human beings with nobility and dignity not at a certain age when they begin to speak, but, I believe, when there is the nucleus of a human being.
I cannot be convinced. I believe that we have gone far enough in research. I do not believe that the majority of the human race is yet morally or spiritually capable of dealing with purely scientific knowledge. No. I am not happy. I believe that we have gone far enough. I believe that we can use the knowledge that we have quite well enough without going further. I would not and could not accept the amendment. I hope that many others will not accept it.
Lord Rea: My Lords, perhaps I may make a few remarks in relation to the contribution of the noble Lord, Lord Milverton, and particularly in relation to the contribution of the noble Duke, the Duke of Norfolk. I believe that the noble Duke's informant is wrong. We are not dealing with alteration of the germ line in this amendment. It is precisely the reverse. The amendment proposes that a woman who suffers from this disease and therefore cannot produce healthy children is enabled to pass on her nucleus and have a healthy pregnancy by means of the use of the cytoplasm from another ovum. That is a very different matter from interfering with someone's nuclear germ material. The purpose is to help that person's own genetic material to be reproduced into posterity.
Midnight
Baroness Jay of Paddington: My Lords, I support the amendment in the name of the noble Lord, Lord Walton. Like other noble Lords who have spoken, I am not a scientist and I find much of what has been described extremely difficult to understand. However, unlike other noble Lords, although I find it difficult to understand, I do not find that necessarily a frightening experience. The noble Lord, Lord Walton, described extremely lucidly the narrowness of his amendment and its effect in terms of trying—as the noble Baroness, Lady Warnock, indicated—not to extend the ban on infertility treatment, which is included in the clause as it now appears in the Bill, to research. Very different signals have come from the various people associated with the new clause about its precise effect. I shall be grateful if the Minister in her reply will explain to your Lordships' House precisely how she sees the impact of the clause as now drafted on the research community. The Member in another place who originally introduced the clause, Dame Jill Knight, stated at one stage that she had no intention of affecting research; at another stage she spoke most forcefully about sending a message to scientists that there was no point in spending any more time on research in this area.
The noble Lord, Lord Walton, has effectively conveyed that if that message is the case, it is a devastating result of a provision which its author in another place suggested was simply to affect treatment regarding fertility. As noble Lords have discussed on several occasions, such treatment is far in the future and was not the original intention underlying the amendment. Nonetheless, it is difficult if people now believe that research will be blighted for reasons which I do not need to reiterate. The noble Lord, Lord Walton, has explained them most clearly.
However, it is worth saying in lay language that if we were to ban research we should not be banning fertility treatment —that is not relevant to this issue—but inquiry into genetic diseases, early menopause, and other such conditions which affect many women and couples in this country. The issue is nothing to do with the rather Frankenstein images which have been conveyed tonight.
Since the debate on a similar amendment on Dame Jill Knight's clause in Committee, I have received two documents which I found most impressive. One was the document from the Royal Society to which the noble Lord, Lord Walton, referred. That is a dense, scientific argument from which he quoted. I found it most persuasive in its consideration of the areas of pure research which could be conducted in this field if the amendment is carried. The other was a more populist document, published in a series, Contemporary Papers, called, Is Science Dangerous?, written by Lewis Wolpert. Many noble Lords will know that he is a very distinguished Professor of Biology as Applied to Medicine.
If your Lordships will allow me, I shall quote from the document because it answers for me, as a lay person, some of the questions raised in the debate. In discussing the area of genetics, Professor Wolpert states:
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"Are there doors immediately in front of current research which should be marked 'Too dangerous to open'?."
He asks the rhetorical question which several noble Lords have put tonight. He continues:
"I realise the dangers but I cherish the openness; of scientific investigation too much to put up such a notice. I stand by the distinction between knowledge of the world and how it is used…Once one begins to censor the acquisition of objective knowledge, one is on the most slippery of slippery slopes."
That is why I as a lay person hope that your Lordships will accept the amendment in the name of the noble Lord, Lord Walton, and will not go down that particular slippery slope.
Baroness Cumberlege: My Lords, in introducing his amendment, the noble Lord, Lord Walton, has again spoken with conviction and clarity on this issue, as indeed have other noble Lords tonight. This issue is a very sensitive one. It is a subject which arouses conflicting emotions. Great sympathy for couples experiencing difficulty in having a baby is mixed with anxiety about the nature of some of the scientific developments taking place. The medical research of clinicians and scientists who work in this field gives hope to many couples. Parliament has decided that certain developments are acceptable, and as the noble Baroness, Lady Jeger, reminded us, we have set up the Human Fertilisation and Embryology Authority to regulate that activity. The Government hold the authority in high regard. It was set up by Parliament in 1990 and it has served Parliament well since then. The authority has made it clear that it respects Parliament's wishes and will abide by any decision Parliament makes. Its consultations continue as planned.
At Committee stage I spoke at length about the principles of Clause 143, and I intend to keep my comments brief. There are, however, one or two points which I should like to make.
In the Government's view, this amendment is workable. If it is the will of your Lordships' House that it be passed, then Parliamentary Counsel will consider whether any technical change is needed. However, the Government's position remains one of neutrality, both on this amendment and on Clause 143, the clause which was added to the Bill in another place after being proposed by my honourable friend Dame. Jill Knight It deals with a subject on which many people have very strong and deeply held views. For this reason, the Government believe that it is a matter for your Lordships' individual judgment and conscience.
This amendment would ease the total ban for infertility services imposed by Clause 143 by amending the definition of "female germ cell". The noble Lord, Lord Walton, and the noble Baroness, Lady Jay, requested reassurance that Clause 143 only prohibits treatment and not research. I can reassure him and the noble Baroness, as well as the noble Baroness, Lady Warnock, that that is the case. As the noble Lord, Lord Walton, has explained, the medical treatment that he particularly wishes to allow involves using that part of the female germ cell which carries very little inheritable material. This is known as cytoplasm. The part that carries the majority of inheritable characteristics, the nucleus, would not be used.

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The amendment restricts the operation of Clause 143 to foetal eggs which retain an active nucleus. I acknowledge the view of the noble Baroness, Lady Warnock, that the amendment is limited in some respects; but I should point out that it would allow the use of all other parts of the egg when treating women. Its effect goes wider than permitting the use of cytoplasm in mitochondrial disorders —distressing conditions described by the noble Lord, Lord Walton.
As my noble friend the Duke of Norfolk said, it is not possible to specify what those wider uses might be because, as in the case of mitochondrial disorders, the treatment is far in the future and at present only theoretical.
When your Lordships' House considered this issue during Committee stage, I drew to your Lordships' attention the question of germ line gene therapy. That is where inheritable characteristics are passed on not only to the person treated but through him or her to future generations.
During the debate on his earlier amendment and again this evening, the noble Lord, Lord Walton, acknowledged that the treatment he wishes to allow is technically germ line gene therapy. In other words, a child born as a result of such treatment would have some genetic material from the donated foetal egg.
The Government consulted widely on the issue of germ line gene therapy and in 1992 accepted the Clothier Committee's recommendation that this therapy should not be attempted at this time. At present in the United Kingdom, gene therapy research is directed towards the alleviation of genetic disease, but restricted to somatic cells—cells which do not carry characteristics which are passed on to future generations.
Clause 143 bans treatment using foetal eggs. The noble Lord's amendment seeks to restrict the ban so that it does not apply to treatment using the cytoplasm. This work, being germ line gene therapy, is not currently acceptable and the amendment does not affect this. The Government look for advice to the Gene Therapy Advisory Committee, the successor to the Clothier Committee, on these issues. Therefore, if this amendment is passed and if the committee recommends that germ line gene therapy should be permitted, the work could proceed without breaching the prohibition on treatment using foetal eggs, provided it is approved by the Government.
In the meantime, the Government continue to support the decision not to approve any proposals for germ line gene therapy. I endorse the views of my noble and learned friend Lord Rawlinson that we need a wider discussion and we should start by seeking the views of the Gene Therapy Advisory Committee and invite Parliament, in a fuller debate, to consider the wider implications of such a development when the time is right.
This is a free vote issue. It is a matter on which your Lordships have an opportunity to exercise your individual judgment. As I have said, the Government consider that the amendment is workable. It is for your Lordships' House to decide whether it is acceptable. I
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think we have had a full and constructive debate on the amendment and I hope that my comments will assist your Lordships in reaching your decision.
Lord Walton of Detchant: My Lords, I am very grateful to all noble Lords who have spoken in the debate on this extremely sensitive issue. I hope that the noble Duke, the Duke of Norfolk, will forgive me if I say that in his opening remarks after I had spoken he had totally misinterpreted the objectives and the meaning and significance of my amendment. I hope that I did not confuse him by what I said. Let me make it quite clear.
This is not an amendment which is concerned with the transfer of the nucleus of a foetal egg to the ovum of a woman. It is concerned solely with the possibility that a foetal egg from which the nucleus had been removed or in which the nucleus had been inactivated—that the cytoplasm of that cell containing the mitochondria might then be used to be transferred into the cell of a woman undergoing in vitro fertilisation. That would result in a cell in which 99.5 per cent. of the genetic material in the nucleus was that of the natural parents. Only the tiniest proportion would result from the transfer of cytoplasm. There is no prospect that this could lead to cloning. There is no prospect that it could lead to any of the disturbing consequences which some noble Lords have mentioned. It is simply a means of using a tiny proportion—37 genes as against 75,000 in the nucleus—to prevent serious and crippling human disease.
I wholly appreciate the point that was made by the noble and learned Lord, Lord Rawlinson. This matter was not considered in the 1990 Act. The reason why it was not considered at that time was that medical research had not moved sufficiently far for this process to be understood as being a mechanism which could have the enormously valuable effect of preventing crippling disease of very great severity. I accept that it is rare; and it would therefore be very rare indeed that this mechanism, if once it became feasible as a consequence of research, would be used.
I accept the point that was made by the noble Baroness, Lady Jeger. The same criticisms as were made by the noble and learned Lord, Lord Rawlinson, about the inclusion of the clause late at night were made in another place. But if only Dame Jill Knight had waited until the Human Fertilisation and Embryology Authority had completed its consultation. Twenty-thousand consultation papers went out around the country. An enormous number of replies have been received. This clause in the Bill pre-empts that consultation process.
The amendment that I have set down is one that would produce —it is perfectly true; as the noble Baroness, Lady Cumberlege, said—a form of germline gene therapy. Had there been time, and had we been able to accept that the consultation process being undertaken by the authority must be completed and then legislation would be brought before both Houses of Parliament for all the implications of the use of foetal ovarian tissue in research to be considered, it would not have been necessary for me to bring forward an amendment such as this, important though it is in the prevention of human

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disease. Therefore I answer the noble Earl, Lord Perth, by saying, of course public opinion should have been consulted. If only Dame Jill Knight had waited for that process to be completed we should not have been in the situation that we now recognise.
I am most grateful to the noble Baroness, Lady Warnock, for her support. I believe that to allow matters to stand as they were will do a disservice to women and to humanity as a whole. To the noble Lord, Lord Milverton, I would say, as a committed Christian myself, that we have no intention—and I hope that there is no misunderstanding—that this amendment would allow nucleus transfer; it would not allow any of the horrors that might arise in consequence of the kind of genetic manipulation that has been of such concern to other Members of this House.
I believe that morally and spiritually this amendment is well worthy of serious consideration by your Lordships. As a neurologist and one who has seen children and adults paralysed, suffering severe epilepsy and severe mental deterioration as a consequence of mitochondria] disease, I believe that the Christian attitude must be and should be to take whatever action is reasonable and proper, with full legal limitation, through the licensing activities of a statutory licensing authority, to allow such work to go ahead. I am very grateful indeed to the noble Baroness, Lady Jay, for her support on that point also.
Finally, in reply to what was said by the noble Baroness, Lady Cumberlege, I am grateful for her reassurance and careful consideration. I am also grateful for the consideration given by her officers as we discussed the amendment. She said that it is workable and I believe that to be the case. She said that the Government are neutral and I am happy to accept that point. As I said, it is only dealing with cytoplasmic transfer. I accept that that is in minimal degree a form of germline gene therapy. Had there been time, it would have been much better to have consulted the Clothier Committee on gene therapy before any such amendment were tabled.
Now that the clause set down in another place by Dame Jill Knight is a part of this Bill, we do not have the time to undertake that consultation. I must remind the House again that we are dealing with an issue which could only relate to 37 cytoplasmic genes carried in the mitochondria - nothing to do with the 75,000 genes which are the major constituent of the body's genetic constitution which lie in the nucleus. I have to say, with the greatest reluctance, that it is my wish to test the opinion of the House.
12.17 a.m.
On Question, Whether the said amendment (No. 152A) shall be agreed to?
✶Their Lordships divided: Contents, 35; Not-Contents, 57.

Division No.6

CONTENTS

Ackner, L.

David, B.

Carlisle of Bucklow, L.

Glenarthur, L.

Courtown, E.

Gould of Potternewton, B.

Craigavon, V.

Graham of Edmonton, L.

Darcy (de Knayth), B.

Hamwee, B.

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Harris of Greenwich, L.

Park of Monmouth, B.

Hylton, L.

Rea, L.

Jay of Paddington, B.

Saltoun of Abernethy, Ly.

Jeger, B.

Seear, B.

Kimball, L.

Sefton of Garston, L.

Lawrence, L.

Soulsby of Swaffham Prior, L.

Lockwood, B.

Stockton, E.

Marlesford, L.

Taylor of Blackburn, L.

McIntosh of Haringey, L.

Trumpington, B.

Monson, L.

Walton of Detchant, L. [Teller.]

Mottistone, L.

Warnock, B. [Teller.]

Nickson, L.

Winchilsea and Nottingham, E.

Palmer, L.

NOT-CONTENTS

Ashbourne, L. [Teller.]

Long, V.

Astor, V.

Lothian, M.

Balfour, E.

Lyell, L.

Belhaven and Stenton, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Macleod of Borve, B.

Brabazon of Tara, L.

Masham of Ilton, B.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Burnham, L.

McNair, L.

Carnock, L.

Miller of Hendon, B.

Chalker of Wallasey, B.

Milverton, L.

Clanwilliam, E.

Morris, L.

Cork and Orrery, E.

Mountevans, L.

Craigmyle, L.

Norfolk, D. [Teller.]

Cranborne, V.

Northesk, E.

De L'Isle, V.

Parmoor, L.

Denton of Wakefield, B.

Perth, E.

Dixon-Smith, L.

Rankeillour, L.

Downshire, M.

Rawlinson of Ewell, L.

Falkland, V.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

Ryder of Warsaw, B.

Gainsborough, E.

Salisbury, M.

Gisborough, L.

Seccombe, B.

Goschen, V.

Simon of Glaisdale, L.

Harris of High Cross, L.

Skelmersdale, L.

Harvington, L.

St. Davids, V.

Hemphill, L.

Strange, B.

Henley, L.

Strathclyde, L.

HolmPatrick, L.

Ullswater, V.

Kilbracken, L.

Vivian, L.

Lauderdale, E.

Wynford, L.

✶[The Tellers for the Not-Contents reported 57 names. The Clerks recorded 60 names.]
Resolved in the negative, and amendment disagreed, to accordingly.
12.26 a.m.
Clause 144 [Age at which homosexual acts are lawful]:
The Earl of Clanwilliam The Earl of Clanwilliam moved Amendment No. 152B:
Page 117, line 24, at end insert:
("( ) This section shall not come into force until the Secretary of State has—

(a) laid before Parliament,

(b) published, and

supplied to—

(i) Health Education and Authority, and

(ii) any other bodies and persons he considers appropriate,

guidance for homosexual men on the dangers of those sexual practices (including committing buggery with another man) which are likely to lead to the spread of disease, and on the measures that can be taken to minimise such dangers.").
The noble Earl said: My Lords, I am sorry to have to introduce yet another medical point in another bolt-on clause which has nothing to do with the Criminal Justice and Public Order Bill. I hope noble Lords will find this matter somewhat less complicated and more understandable.
The amendment seeks to remove a anomaly in the drafting of the Sexual Offences Act 1967. The subject of the amendment has been clearly rehearsed by the amendments of the noble Lord, Lord Mayhew, in Committee, which concentrated on the health aspects of the act. What we mentioned at that time was the report of SIGMA. SIGMA was set up by the Medical Research Council to research into the homosexual community and to report its findings, which it did in detail in 1982. The report was published with the authority of the Department of Health. A copy of the report is in your Lordships' Library.
There is much debate about the causes of AIDS, but what is clear is that of deaths from AIDS-related diseases 75 per cent. were among the homosexual community and some 25 per cent. were from the misuse of needles and other minority factors. The 1967 Act refers exclusively to homosexual practices and was drafted without knowledge of the impending crisis resulting from AIDS. Indeed, it is not concerned with the other minority causes of the disease. The chronology is important, as I hope your Lordships will agree. It supports the case for this amendment as a rider. For instance, the Wolfenden Report was prepared in the 1950s and was brought out with reference to ethics, religion, morals, society and even medical health but not with reference to disease. In the 1960s, the Act was prepared and passed—again without reference to health. In the 1970s the homosexual sub-culture developed and the first case of AIDS was not reported until 1982. What would Wolfenden have reported had he known that AIDS was to develop within a generation? As it was, all ages were considered by Wolfenden and 21 was adopted as the best compromise.
The reason we are speaking today is that a bolt-on clause to the Criminal Justice and Public Order Bill in another place reduced the age to 18. It is not the intention of this amendment to argue against that decision but it must surely be true that the 1967 Act would have been a different measure had we known then what we know now. It is ourselves who have the benefit of hindsight. It must surely be correct for a revising House to use that benefit while we are in the course of amending this bolt-on clause. Perhaps I may have the temerity to mention your Lordships' duty. We are all well aware of our own duty. It is a duty which we have to warn those newly enfranchised young men that there are dangers to health and life in the forms of lifestyle which, by influence, we are recommending them to adopt.
The work of the department and of the voluntary bodies, and especially the work of the homosexual community itself, is enormously successful. Indeed, government expenditure in publishing advice and facts and running hospices marks our country as being in the forefront of successful treatment of this matter. I have had the benefit of a kind response from the noble Baroness, Lady Cumberlege, giving me advice about the work which is being done. Expenditure this year is about £214 million.
That is all highly commendable and absolutely right. Her advisers tell me that we shall not be rocking the boat
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—although they would not use such an expression—by tabling an amendment which varies the efforts that they are making and which puts something on the face of the Bill. Their aim is to influence and educate the community in methods of safe sex, but, in the context of the acts to which this amendment refers, there is no such thing as safe sex. There are only means to make it safer. All agree on that.
This amendment applies equally and most important-ly to the uncommitted young men. It would have the authority of Parliament for the benefit of parents, who are the ones who should be given this advice, including teachers and other professional counsellors.
The truth is that the Act is flawed. There is a glaring, cardinal error. I ask your Lordships whether Parliament should abrogate its responsibilities to the nation and rely on its departments to make good the fault revealed. I think not. I am sure that I am not alone in that. As regards the nanny state, there are many more onerous interferences in our choice of lifestyle as it is. We have been debating the smoking clauses. Smoking is prohibited in many places already and indeed it is of itself almost acceptable only between consenting adults in private. There is a warning on the pack of cigarettes, but there is no point in putting a warning on the pack in this matter. It would be too late. Alcohol is allowed. Driving under the influence and making a disturbance is illegal and heavily punished. As for drugs they are illegal as much because they are lethal as because they are habit forming.
On the other hand, an act which is three times more lethal than drugs is not even the subject of a mild warning on the face of the Bill. I suggest to your Lordships that this is a necessary reform and an amendment which we know, with hindsight, to be correct and upon which we fail to act not so much at our own peril as the peril of future generations. I beg to move.
Lord Mayhew: My Lords, there is one further incidental merit in the noble Earl's amendment. It may be incidental but I believe that it is important. If this amendment is passed, it will place beyond doubt the view of this House that, although it may oppose the legal prohibition of anal intercourse, nevertheless it regards it as something to be discouraged. It is strange that it should be necessary for the House to make that clear. There has been no opposition at all in our debates to the fact that anal intercourse, with or without protectives, is a health risk. There is a risk of contracting a fatal disease to which there is no known cure.
The facts have not been disputed. One might have expected those opposed to the legal prohibition of the practice to make clear, in their eloquent and successful speeches, that they were not meaning to encourage it; indeed, that they wanted positively to discourage it. That must be the view of us all. It would help the Bill, and the House, to make the position clear. If we pass the amendment it will show that although the House may not agree with the legal prohibition of anal intercourse, it believes that the Government and the country have a duty firmly to discourage it.
Baroness Cumberlege: My Lords, I should like to say, first, that I have the greatest respect for the thinking behind the amendment moved by my noble friend Lord Clanwilliam. It very properly emphasises the need for health education to prevent the spread of disease. However, the Government believe the amendment to be unnecessary and therefore, I regret, are unable to support my noble friend.
The amendment seeks to place on the Secretary of State for Health an obligation to issue guidance to homosexual men on the dangers of infection of HIV or other sexually transmitted diseases. The issue of that guidance will then enable the clause lowering the age of consent for homosexual men to 18 to come into force. My difficulty with the proposal is that it does nothing new. At present the Secretary of State has the powers to make available advice of this sort to homosexual men, and indeed to any other group which may be placing itself at risk of acquiring any sexually transmitted disease. The Government's Health of the Nation strategy recognises that no single public health measure is sufficient to combat the risks of HIV and AIDS but rather that a concerted campaign involving many different agencies is called for. One of the great strengths of the United Kingdom's response to this new disease is the involvement and innovative partnerships of statutory and voluntary sectors in public education initiatives.
Since 1986 the Government have produced or otherwise supported an enormous range of health promotion work. The action taken has been widely admired and is emulated throughout the world. At the start of the epidemic in this country homosexual men were by far the largest group to become infected. Today they represent a smaller, but still significant percentage. To the end of March this year, there were over 21,000 reports of HIV infection in the United Kingdom of which over 60 per cent. were among homosexual men. That percentage shows that the epidemic is increasingly affecting heterosexuals, but it also shows the impact of public education on the homosexual community.
The Health of the Nation set a target for 1995 which would act as a proxy measure of incidence of sexual risk behaviour. This aimed to achieve a 20 per cent. reduction in new cases of gonorrhoea, from 61 cases per 100,000 of the population to 49 cases per 100,000. Gonorrhoea is often diagnosed in homosexual men. The target was reached two years ahead of time. That is a very promising sign.
The Government have an excellent record, with all-party support, of providing guidance to homosexual men. Indeed, the United Kingdom can claim to have done as well as some other countries and better than most. In France the Paris region alone has more AIDS cases than the entire United Kingdom. Spain has four times as many and Italy three. I do not say that to criticise our European neighbours but to give a picture of the remarkable achievement we have made in this country.
I am afraid that all the amendment would do is oblige the Secretary of State to continue with that effort. As drafted, it would also apply only at the one point in time that the clause comes into effect. Surely, the position is
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better protected by not having the amendment but by continuing under existing powers and with existing efforts. The Secretary of State is already empowered to make available advice to the whole population on the full range of health issues whenever medical science or public concern shows that that is needed. The position on HIV and AIDS will continue to be monitored closely in your Lordships' House and in another place, not only at the time of enactment but for so long as there remains a danger of spreading HIV and AIDS. For that reason, I hope that my noble friend will feel able to withdraw the amendment.
The Earl of Clanwilliam: My Lords, I thank my noble friend for her response. Of course, I did not find it at all satisfactory. I also thank the noble Lord, Lord Mayhew, for his valiant support. It is apparent that there is no further support for me in the House and I shall not bother your Lordships further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 153:
Transpose Clause 144 to after Clause 136.
The noble Baroness said: My Lords, this amendment and Amendments Nos. 155 and 157 seek to bring together in a separate part of the Bill the clauses dealing with sexual offences. This will be located between Parts X and XI of the Bill as it stands.
On Question, amendment agreed to.
Baroness Ryder of Warsaw Baroness Ryder of Warsaw moved Amendment No. 153A:
After Clause 144, insert the following new clause:
Restriction on custody of children by homosexuals

(" .—(1) Notwithstanding any other statutory or common law provision, it shall be an offence for a homosexual man or woman, other than the natural parent, to have the care or custody of a child under the age of eighteen.

(2) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.").

The noble Baroness said: My Lords, it saddens me that an amendment such as that proposed by the noble Lord, Lord Ashbourne, has become necessary in our society. Although we know that homosexual behaviour has been present for thousands of years, it has usually been a private matter in which adults engage. Children have certainly suffered from homosexual abuse in the way that they have suffered from heterosexual abuse. But in the main, children have been and are still brought up within families with a mother and father or, in some sad circumstances, by one parent alone.
What is happening now is that some homosexual lobby groups want us to support homosexuals either individually or together having the right to bring up children. They would like homosexual partners to be able to foster and adopt children not covertly but overtly. They would also like lesbian women, who obviously have the ability of any woman to conceive a child, to be able to do so anonymously through artificial insemination and then to be able to bring up the resulting child with their lesbian partners. Indeed, a

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recent court case gave parental rights to such a couple, although in that case the child had been conceived with the help of a male friend.
My concern in all of this is for the children. None of us chooses our parents or the circumstances in which we are born. Government can do little to influence such things. However, we can seek to protect children from being brought up in an environment which will not help them in their existence.
That is why I move the amendment. Its wording may not be perfect but it gives the Government the opportunity to state their position in this matter. Therefore, I hope that in reply the Minister will set out a clear statement of what the Government believe should be done to protect children from the determined homosexual lobby. I beg to move.
Lord Ashbourne: My Lords, I apologise most profusely to the House for not being in my place when the amendment was called. I am grateful to the noble Baroness, Lady Ryder, for stepping in so gallantly. Perhaps I may explain the situation—it is not an excuse but a statement of fact. Mathematics has never been my strong suit and obviously the noble Baroness, Lady Warnock, is better than I. We were Tellers in the Division on the previous amendment and I thought that we had done rather well because we agreed implicitly. However, there was a disagreement and I was called outside to do some mathematics. At just that critical juncture, the amendment was called on, and that was the cause of my absence, for which I apologise sincerely.
The amendment makes it a criminal offence for a homosexual man or woman to have care or custody of a child. I hope that the Government will state in their next Bill on childcare that the welfare and best interests of a child are never served by any order as a result of which a child is placed in a homosexual household.
The Lord Jesus Christ said:
"If anyone causes any of these little ones, who believe in me, to sin … it would be better for him to have a large millstone hung around his neck and to be drowned in the depths of the sea".
That quotation comes from Matthew, chapter 18, verse 6. I bear that warning very much in mind.
Section 28 of the Local Government Act 1988 forbids a local authority from intentionally promoting homosexuality either as such or as what it describes as a "pretended family relationship". Contrary to the statement in law that two homosexuals are not a family, Mr. Justice Douglas Brown ruled in Manchester the week before last that the Children Act 1989 may be interpreted to give the lesbian partner of a child's mother residence rights over the child, making her, in law, a parent. I feel sure that that was not intended by those who framed the Children Act. The Government should act on that point.
Homosexual relationships are notoriously short lived. On average they draw to a close after 18 months for males and two years for females. Both males and females normally have other partners during the course of a so-called monogamous relationship—males more so.
Studies of children growing up in homosexual households have rarely progressed with the child
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through adolescence into adulthood. The samples are very small. If anything can be read into them at all, it is that parental behaviour does indeed influence sexual identity in children, particularly daughters raised by lesbians. Of course, where homosexuals claim that their children show no ill-effects from being raised in a homosexual household, it is important to note that they do not regard as an ill-effect a child growing up a homosexual.
Homosexual households are inherently unstable. All the evidence shows that there is something self-limiting about homosexual relationships. Men and women are made for each other, physically and psychologically. It may not always seem so but men and women are complementary. According to psychologist David Reuben, homosexuals are:
"trying to solve the puzzle with only half the pieces".
There are no real boundaries and the need to search for the ideal partner drives their sad and inevitable promiscuity.
In spite of the blurring of the edges which the Children Act has achieved, below the age of 18, a teenager is still legally a child. That is the age at which the young are particularly appealing to homosexuals. Homosexual literature bears witness to that.
I turn to a particular situation which the amendment will address. Children may leave home for all kinds of reasons. A row over something or nothing can result in a young person walking a lonely country road or ending up at a railway station. Homosexuals are on the look-out for such young people and will offer to take care of them. The aim is to integrate the child into the homosexual network.
My investigations suggest that in Britain there is a network of homosexual men who have boys living with them. The network has what it describes as "safe houses" all over the country. By making it a criminal offence for a homosexual to have custody of a child, such frightening abuses of children should stop. I hope that this amendment will also put the brakes on homosexual men and women being given custody of children in the courts. But I recognise that an amendment to the Children Act may also be necessary. I do not claim that the amendment is perfect in every detail, but I believe that the issue is of fundamental importance. The Government have the opportunity on Third Reading to introduce their own amendment. I shall expect my noble friend the Minister to tell us tonight the Government's practical proposals to respond to the problem. I have to tell my noble friend that I may have to press the matter to a Division if it seems that the Government are unwilling to grasp this particular nettle. I commend the amendment to the House.
Lord Ackner: My Lords, I am most grateful to the noble Lords, Lord Ashbourne and Lord Orr-Ewing, for drawing my attention to the case which stimulated the amendment. The case occurred in the Manchester High Court on Friday 24th June, when Mr. Justice Douglas Brown made the order. The facts were bizarre in the extreme. A couple who had been living together for some time made the decision that they wanted a child shortly after they had started living together. One of the

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women reached a private arrangement to become pregnant by a man who wanted no involvement in the child's life. Her partner applied for a residence order after the birth of the child so that she could acquire parental responsibility, thus giving her equal legal status with the child's mother. That is a feature of the case which I believe requires some stressing.
The Official Solicitor was appointed to act for the child in order to satisfy himself that it was in the child's best interest for the order to be made. He supported the making of the joint-residence order. Mr. Justice Douglas Brown made the joint-residence order in respect of the two women, stating that he had had the child's welfare as his first and paramount consideration and that he was wholly satisfied that it was in the child's best interest to make the order.
In my respectful submission, that indicates that the ordinary legal process is perfectly appropriate for dealing with such a situation, bizarre though it is. The Official Solicitor, acting purely on behalf of the child, inquired into the situation and was satisfied that it was in the best interest of the child for the residence order to be made. On hearing the matter, the judge approved the order.
Of course, it is open to the natural mother to apply, on proper grounds, for the residence order in favour of her partner to be removed at any time. I respectfully submit that the proper approach to such cases is to leave the decision to be made by the High Court judge with his experience—and Mr. Justice Douglas Brown is a highly respected judge of the Family Division—and that any attempt to bring in a criminal offence, as suggested in this case, is an inapposite approach to this rather difficult problem which would produce a high degree of inflexibility and overrule the ordinary approach to matters which relate to children; namely, to be satisfied as the paramount consideration that it is in the child's best interest to make or not to make the order sought.
Lord Simon of Glaisdale: My Lords, my only reluctance in opposing this amendment is my respect for the proponents of it, with whom I normally expect to find myself in agreement. But, if I may say so, all my experience as a matrimonial judge concerned in countless of these custody cases convinces me that my noble and learned friend Lord Ackner is right and that these matters are far better left to the unfettered discretion of the experienced judge who is accustomed to dealing with them.
In these cases there is very rarely any one clear supervening consideration. Practically always, even when there is one predominant consideration, there are others which have to be weighed. As my noble and learned friend said, the paramount consideration is the welfare of the child. That was the word that was used by my noble friend Lady Ryder. The paramount interest is the welfare of the child. That means that its welfare outweighs all the other considerations, not merely any one of the other considerations but all the considerations put together.
It was claimed that this amendment was necessary to keep a child away from homosexual influences but it does not do that because it concedes, rightly and
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inevitably, that a homosexual natural parent should not automatically, and on criminal sanction, be deprived of the custody of his or her child. One came across a somewhat similar situation after the war during the time of the cold war. At that time there was little doubt that Communists owed their allegiance to other than this country and were busily engaged in proselytising their faith. It was constantly urged that they were, for those reasons, unfit to have custody. Neither I, nor I think any other judge, ever accepted that. It was a consideration that obviously had to be taken into account; namely, how much influence might be improperly brought on the child. Of course, one can always be sure that any consideration against any particular person having custody will be vigorously urged.
If I can make any submission sufficiently strongly, it is that this amendment should not be pressed. It is not really in the interests of the child that there should be an automatic sanction against any person having custody in all the infinite circumstances that can arise. I hope the amendment will not be pressed.
Baroness Faithfull: My Lords, while understanding and having sympathy with my noble friend Lord Ashbourne and the noble Baroness, Lady Ryder, I am worried about this amendment. I have great difficulty in understanding it completely. As drafted, I suggest that it would be difficult to administer. I also support the noble and learned Lord, Lord Simon of Glaisdale.
The amendment states that,
"it shall be an offence for a homosexual man or woman, other than the natural parent, to have the care or custody of a child".
Does a "homosexual woman" mean a lesbian? The amendment does not say so.
Those of us involved in the field of childcare find that many children, particularly very young children, do not do well in residential establishments. Therefore, we seek to place those children in foster homes. In my own authority we had a residential nursery for young babies and very young children, but we felt that those children were not receiving the bonding, nurturing and care that individuals could give to children. Therefore, we sought foster parents for those children. We found that almost the most satisfactory foster parents were two women living together. For 15 years I had three sets of two women living together who would foster children and care for them while they were waiting for adoption or long-term fostering. Those people were invaluable.
I cannot say whether or not those women were lesbians. How could I have asked them whether they were lesbians? What would they have told me if they were? What would they have thought if they were not? The fact remains that those women provided understanding, care and nurturing for the children. The amendment worries me in case such people would be cut out and would not be able to look after children and provide the service which those children demand.
As was rightly said by my noble friend Lord Ashbourne, under the Children Act the welfare of the child is paramount. Therefore, as worded, I could not accept the amendment. As the noble and learned Lord, Lord Simon of Glaisdale, said, it would not do what my noble friend Lord Ashbourne wishes. Also, from the

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wider point of view, it might cut out foster parents able to do a very good job for children in need of the kind of help they could provide.
1 a.m.
Lord Rea: My Lords, in answer to the noble Lord, Lord Ashbourne, I should like to say that no responsible local authority or adoption agency would place a child for fostering or adoption with a homosexual couple, whether male or female, unless it was very sure that the home they provided was likely to be supportive, loving and stable. It would want to be even more assured of that than if it placed a child with a heterosexual couple. For some children such a home may be the best. In some cases it may be the only one available. As a general practitioner I have looked after several families with lesbian or gay parents who care very successfully for their foster or adopted children.
To go full circle, in 1988 at the time of the passing of the Local Government Bill, which included the notorious Clause 28 referring to the "pretended family", noble Lords will remember that I described my own happy childhood in which I was brought up by two lesbian women. I am not aware that that affected my sexuality or my adjustment to society generally. Much research has shown that there is no greater incidence of homosexuality or behavioural problems in the children of gay or lesbian couples and that there is less physical or sexual abuse than in the case of the children of heterosexual couples. I agree with the noble and learned Lords, Lord Ackner and Lord Simon of Glaisdale, that the amendment is quite unnecessary. I hope very much that the House will reject it.
Lord McIntosh of Haringey: My Lords, I was sad to see the amendment on the Marshalled List. I was, frankly, appalled by the speech of the noble Lord, Lord Ashbourne. He purported to give statistics about the fidelity of homosexual couples which appeared, so far as one could tell, to include teenage relationships. Those are, inevitably and quite frequently, short term both for homosexual and heterosexual people. The noble Lord lumped the statistics together and made it appear that the stable relationships which most homosexuals attain in adult life were somehow unusual. He even went so far as to say that most homosexual couples had promiscuous relationships during the time of their other adult relationships. If the noble Lord were to read his speech again, he would find that what he said was a gross slur on the morality and sense of responsibility of a large number of faithful adult homosexual couples. The tenor of his speech and the depth of prejudice shown appalled me.
There is evidence on the point that we debate. I look at a recent article from the British Medical Journal of 3rd August 1991 by a senior lecturer at the Royal Free Hospital Medical School, Michael King, and a practising solicitor. The first piece of evidence which ought to be brought to the attention of the House is that, despite the case which the noble and learned Lord, Lord Ackner, described, it is very unusual for homosexual people, either men or women, to be granted custody of
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children. The article concludes that solicitors ought sometimes in the interests of the children to urge homosexuals more frequently to put forward a case for custody because it could well be in the interests of the child for these matters to be dealt with by the courts more frequently than they are.
The article looks at the possible problems which could arise from such custody. The arguments are that homosexual couples provide inappropriate role models; that there might be sexual relationships between those with the custody and the children; and that the child or children might be stigmatised by others. In each of those cases the argument from developmental psychology and indeed from empirical evidence is that it is infrequent for such couples—they are very often devoted couples —to be poor role models; that the vast bulk of illegal and immoral sexual relationships between adults and children are heterosexual relationships, or sometimes homosexual relationships by heterosexuals rather than by homosexuals.
With regard to whether the child is stigmatised by others, I wish to move from the general to the particular. My noble friend Lord Rea has given his example. In my own family there is a very firm and loving example of two lesbians bringing up a young boy who is now 11. He is certainly not stigmatised by others; he certainly does not suffer from inadequate role models; and he is certainly not suffering from sexual relationships with adults. And yet the amendment in the way that it is phrased, and certainly in the thinking underlying it, would make such a situation a criminal offence. That would bring a member of my own family before the courts—a member whom I know to be a loving parent although she is a lesbian and not the natural parent. I find it appalling to think that that should be the case.
When we have young children, many of us make provision for what would happen if we were to be killed or to die early. We make provision for our children to be looked after, if necessary by our friends and relations. Are we to be denied the opportunity to ask for our relations or friends, who may themselves be homosexuals, to act as the guardians of our children after our death? I find the idea quite extraordinary. This amendment must be rejected.
Lord Hylton: My Lords, this is the International Year of the Family. I think that the amendment has raised serious and important questions which deserve further research and study, before we leap to the conclusion that adoption and fostering by homosexual couples is necessarily a good thing and one to be encouraged. The movers of the amendment should not be at all disheartened.
Baroness Cumberlege: My Lords, I understand and have great sympathy with the intentions behind this amendment. My noble friend Lord Ashbourne and the noble Baroness, Lady Ryder, start from the premise that ideally a child should always have the benefit of a father and a mother who are married to each other and enjoy a loving and stable home. This is the ideal—an ideal to which most parents aspire. Those of us who have benefited from that upbringing know that it is a

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marvellous foundation for later life. Only the perverse would want it otherwise. The Government are wholehearted in their support of this ideal.
But the clause as drafted is very wide. Any homosexual person, whether a man or a woman, with a child in their care, would commit the offence. This would apply to schools, children's homes—whether run by local authorities, voluntary organisations or the private sector —and any place in which children could be detained such as secure accommodation or the new training centres. The meaning of care is potentially extremely wide. It includes anything from babysitting to full parental responsibility until the child is 18. Nevertheless, your Lordships will be aware that any law or judgment affecting children starts from the premise that the child's needs are paramount, they must come first. But the passing of this amendment would to some children deny that basic premise and deny them a chance of some semblance of home life. I am sure your Lordships would not want to do that.
I believe that one of the important objectives of your Lordships' House with its revising responsibilities is to prevent bad law reaching the statute books. It is of concern that this amendment might prove to be unenforceable or simply unworkable. I agree with my noble friend Lady Faithfull that this amendment has both characteristics.
As my noble friend, who is such a nationally respected authority in this field, said, we have at the outset to define a homosexual. I know of no such definition. Nor is there a way acceptable in law of proving whether someone is or is not a homosexual. Homosexuality is not self-evident. Nor would a declaration of one's homosexuality necessarily have the effect of confirming the fact of homosexuality in the person making it.
I referred earlier to my doubt about the wisdom of this amendment. I would also question its sense of natural justice. The amendment pre-empts the judgment of the courts and makes homosexuality the absolute bar to caring for children, in whatever capacity. In every case the prospective carer would have to suffer the indignity of having to prove their own sexuality before being allowed to take responsibility for the care of children. Surely this cannot be right; it cannot be just.
The amendment is absolute in its effect, allowing for no exceptions. It presupposes the existence of a real and major distinction between the heterosexual and the homosexual. But your Lordships' House knows only too well that human nature is far too complex to be so easily categorised. In reality, there is a large area of ambivalence between the two.
We are fortunate in these islands to have men and women prepared to come forward and take on burdens and responsibilities which most of us shy away from, particularly where a lifetime's dedication and commitment is required. Some are unmarried through choice rather than circumstance or have lost a partner through death or divorce, but feel able to devote their energies for the benefit of others. Our nation's voluntary sector, the envy of so many countries, is ample proof of that.
Many committed men and women have been prepared in the past to use their experience and skills to
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meet the diverse needs of children damaged early in their young lives, often through suffering a variety of traumatic experiences. Social workers tell me that there; can never be enough suitable substitute parents to meet the numbers of all these children. Because of the current dearth of suitable substitute parents, many, particularly older children, will never be able to experience the stability of a real home or enjoy the pleasures of a loving family, the delight of having a birthday celebrated, or the joy of Christmas with an extended family— occasions which many of us took for granted when growing up.
There are other circumstances when the experiences of a child have been so profoundly traumatic, particularly in cases of sexual abuse, that he child cannot tolerate being in the presence of a [person of the same sex as his or her abuser. In those cases it is not uncommon for social services to decide to place a child with a person of the same sex, and it may be that that person is known to have homosexual leanings. Such cases are very few, but where they have taken place the progress of the child has been favourable, as has been stated this evening.
There are also very exceptional and rare cases where a young person expresses the wish to be placed with a man or woman because of that young person's own sexual orientation. Where a judge has been convinced by the young person's preference and the reasons for it, an order has been made which has allowed an adult homosexual male or lesbian to have responsibility for that young person. These instances are very, very rare. But the courts have exercised their responsibility to ensure that the interest of the child, or indeed teenager, is placed before all other considerations and have made their decision in the light of those interests. My recommendation to the House to resist the amendment is partly based on my belief that the courts should be allowed to continue exercising their judgment in such cases. In my experience—and I have served on an adoption panel in my capacity as the chairman of a social services committee and as a magistrate—it is dangerous to say never, never, ever where these complex relationships are concerned.
Again, I can think of a case where a family may be orphaned and the older child, now a young adult, is ready and able to take charge and keep the family together but happens to be a lesbian. Would your Lordships think it wrong that she should do so, even though all the children were in favour of staying together and did not want to be placed in an institution or children's home or otherwise separated from each other? To break up the family and ignore the wishes of the children would be to contravene the 1989 UN Convention on the Rights of the Child, the 1986 European Convention on Human Rights and the Children Act 1989.
I believe that the thrust of my noble friend's amendment is to prevent people from adopting or otherwise caring for children for the wrong reasons— either to abuse them or to use them to fulfil their own selfish needs. My noble friend's intention is to be

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applauded but we have already in place effective legislation to prevent that. The amendment would simply add confusion.
We are sympathetic to what my noble friend is trying to achieve. But the amendment is clearly not good law. Such a measure would work against the best interests of children by allowing no flexibility in the law. Something already exists and is used sparingly, but I believe wisely, by the courts in the interest of the children concerned. I am most grateful to the noble and learned Lords, Lord Ackner and Lord Simon of Glaisdale, who speak from a wealth of practical experience, for explaining the circumstances and the reasons for the recent and most unusual—"bizarre" I believe was the adjective used by the noble and learned Lord, Lord Ackner—court case where a residence order was made in favour of a woman who was not the child's mother. I so agree with the noble and learned Lords that hard cases make bad law.
One of the marks of a civilised society is the quality of family life and the measures which that society is prepared to take in order to preserve and develop it. Children are our most valuable asset and deserve the best childhood which society is able to give them. The United Kingdom has come a long way in the development and preservation of the family and the right of children to be brought up by a mother and a father. It would, however, be a retrograde step for this nation to pass so restrictive a law that children unable to remain with their own parents were denied the love and care of a substitute single parent.
While having sympathy with my noble friend and other Members of the House who have spoken for the amendment, I would advise great caution and ask your Lordships to reconsider very carefully the many implications of what at first glance could appear an attractive amendment but which is neither practical nor desirable. I urge your Lordships to reject the amendment.
Baroness Ryder of Warsaw: My Lords, I am indeed grateful to noble Lords who took part in the debate on this amendment, which tries to safeguard children and is not intended as an attack on those with homosexual tendencies. The reason that I and my supporters take this view is that the Bible makes it very clear that it is unrighteous for a so-called homosexual couple to be given the care and custody of a child.
I give notice that I shall not let this matter rest. I shall certainly return to it at a later date. At this stage I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 153AA not moved.]
Clause 145 [Extension of Sexual Offences Act 1967 to the armed forces and merchant navy]:
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 153B:
Page 117, leave out line 30 and insert:
("—

(a) subsection (5) (homosexual acts in the armed forces) shall cease to have effect;

(b) in subsection (7)—

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(i) after paragraph (b) there shall be inserted the word "or"; and

(ii) paragraph (d) (homosexual acts on merchant ships) and the word "; or" immediately preceding that paragraph shall cease to have effect; and

(c) subsection (8) (interpretation) shall cease to have effect.").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 153C, 198A, 213A and 215.
Amendments Nos. 213A and 215 amend the extent provisions of Clause 159 to ensure that Clause 145 is properly applied for Scotland. As such, they are purely technical, as is Amendment No. 198A to the repeals schedule.
Amendments Nos. 153B and 153C are a little more than technical, as they alter the effect of Clause 145 as it relates to Scotland. The alteration, however, is one which I hope your Lordships will support once I have explained it. At the moment, Section 80(7) of the Criminal Justice (Scotland) Act 1980 provides that a homosexual act is an offence if it is committed without consent, or in public, or with a man younger than the prescribed age, or on board a United Kingdom merchant ship. The fourth of those triggers would be removed by subsection (5) of Clause 145 of the Bill. However, subsection (5) would also have another effect: it would make the remaining three elements conjunctive rather than alternative. In other words, a homosexual act would be an offence only if it were committed without consent and in public and with a man younger than the prescribed age. Unless all three of those elements were present, there would be no offence.
That effect appears to be the accidental result of the drafting of Clause 145 and not the deliberate intention of those who sponsored it. In any event, it is not something that the Government can accept. We believe that it should continue to be the case that a homosexual act should be an offence if it is committed either without consent or in public or with a person younger than the prescribed age. That is what Amendments Nos. 153B and 153C will achieve.
I reiterate that the amendments are of a purely technical nature and only tidy up the Bill or correct technical drafting errors. They have no bearing whatsoever on the amendments that the Ministry of Defence would seek to introduce at Third Reading. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 153C:
Page 117, line 33, leave out subsection (5).
The noble and learned Lord said: My Lords, I have already spoken to this amendment.
I beg to move. On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 154:
Page 117, leave out line 41.
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 156, 183, 193, 201, 206, 207, 208, 212 and 217. This group of amendments is purely technical. With one exception, the amendments follow on from the carrying

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of Clauses 145 and 146, decriminalising homosexual acts by members of the Armed Forces and homosexual acts on board merchant ships. I beg to move. On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 155:
Transpose Clause 145 to after Clause 136.
The noble Earl said: My Lords, this amendment and Amendments Nos. 153 and 157 seek to bring together, in a separate part of the Bill, the clauses dealing with sexual offences which will be located between Part X and Part XI of the Bill as it stands. I beg to move.
On Question, amendment agreed to.
Clause 146 [Homosexuality on merchant ships and in the armed forces: Northern Ireland]:
Earl Ferrers Earl Ferrers moved Amendment No. 156:
Page 118, line 8, leave out subsection (3).
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 157:
Transpose Clause 146 to after Clause 136.
The noble Earl said: My Lords, this amendment and Amendments Nos. 153 and 155 seek to bring together the clauses dealing with sexual offences which will be located between Part X and Part XI of the Bill as it stands. I beg to move.
On Question, amendment agreed to.
Clause 147 [Increase of fines for certain offences]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 158 to 160:
Page 118, line 23, at end insert:
("(2A) For the maximum term of imprisonment specified in column 3 of Part III of Schedule 8 to this Act that may be imposed under the enactments specified in column 2 of that Part of that Schedule on conviction on indictment, or on conviction on indictment or summary conviction, of the offences mentioned (and broadly described) in column 1 of that Part of that Schedule there shall be substituted the maximum term of imprisonment specified in column 4 of that Part of that Schedule.").
Page 118, line 27, at end insert:
("(3A) Any reference in column 2 of Part HI of Schedule 8 to this Act—

(a) to a numbered column of Schedule 6 to the Firearms Act 1968 is a reference to the column of that number construed with section 51(2) (b) of that Act; or

(b) to a numbered column of Schedule 2 to the Firearms (Northern Ireland) Order 1981 is a reference to the column of that number construed with Article 52(2) (b) of that Order.").

Page 119, line 11, leave out ("and (2)") and insert (", (2) and (2A)").
The noble Earl said: My Lords, with the leave of the House I shall move Amendments Nos. 158 to 160 en bloc and at the same time speak to Amendments Nos. 162 and 176A. This fairly formidable list of amendments increases the maximum term of imprisonment that may be imposed on conviction for a number of serious firearms offences. The full details of what we propose are set out in Amendment No. 162 which introduces a new Part III to Schedule 8 to the Bill.
I would not wish to overstate the problem of guns in crime. In comparison with some other places the use of firearms by criminals in this country remains, mercifully, quite rare. But crime involving guns, though rare, is very serious and it is important that the courts
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should have power to deal more severely than they can at present with illegal possession of firearms by criminals and their associates.
During the discussion of the Bill in another place we introduced an amendment which would increase the maximum penalty on indictment for the unauthorised possession of a prohibited weapon to 10 years' imprisonment. These amendments subsume that. They also provide heavier maximum penalties for those people who are in illegal possession of firearms which are not prohibited.
It is also necessary to ensure that the references in this part of the Bill to years and months are construed as references to terms of imprisonment of that duration. That is achieved by Amendment No. 159. Amendment No. 160 ensures that the provisions of the Bill which increase penalties for offences under the Firearms Acts will not apply to offences which are committed before those provisions come into force. I beg to move.
On Question, amendments agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 161:
After Clause 147, insert the following new clause:
("Unauthorised parking of vehicles on private land in England and Wales
Parking on private land:
The Secretary of State may make an order to control the use of immobilisation devices on private land with special regard to the safety of persons parked temporarily on such land whether with authority or not.").
The noble Lord said: My Lords, in Committee on an amendment similar to this I suggested that it would be helpful to the Government to produce an amendment of this nature which is intended to enable them to make an order suitable for exercising control over wheel-clamping as soon as they are ready to do so without waiting for the next primary legislation opportunity.
I should perhaps remind your Lordships that in writing to the Magistrates' Association on 4th March this year the Home Office official concerned said:
"Although the consultation period formally ended last May [1993] as you know the Government is still considering what action it might be appropriate to take in relation to this problem. As you will appreciate the consultation did not produce a consensus of opinion on the six options canvassed. The aim is to ensure that any measure to prevent or deter irresponsible or heavy-handed wheel-clamping on private land does not prevent land owners from taking sensible measures to control genuine parking problems".
One sees the problem the Home Office faces in advising my noble friend on how the problem should be tackled. But it is important that the Government have the facility to introduce necessary regulation, because lack of regulation means that in England and Wales some car-clamping firms are turning parking prevention into a lucrative business, often clamping vehicles indiscriminately and charging exorbitant fines— sometimes as high as £240—before releasing a vehicle.
Offenders clamped in recent months by over-zealous contractors, usually working on a commission basis, included a doctor's car, a police car, a car parked by a motorist helping at the scene of an accident and a car with the engine still running and the owner sitting in it. It sounds absurd, but those things happen and they

1783
should not be allowed to. In some cases the people concerned feel their safety is threatened by these aggressive measures on any land, private or otherwise.
A recent case involved a woman who was driving her husband to a hospital for brain surgery. She had her car clamped while she stopped to ask directions. On another occasion a taxi driver was clamped on land as he left his car to collect a disabled passenger from a library. On another occasion a mother-to-be went into labour after her car was clamped outside a coach station. The clampers refused to release it until the full fee, which she did not have, was paid. She had to be taken to hospital in an ambulance.
Such incidents could lead to all kinds of trouble for government—whatever government—and they will be made to look frightfully silly and most incompetent if they do not have handy some legislation to stop it when a serious case arises where someone is raped or attacked or a clamped car catches fire and the driver does not want to get out because he or she is frightened of the aggressive people around them. One can imagine all kinds of situations. It would help my noble friend if it were possible for the necessary regulations to be introduced.
I do not hold any brief for the wording I have used. I have put particular accent on safety because that is what matters. People may be unsafe either because they feel unsafe or because there is real danger around them. We could do with a suitable clause such as the one I have suggested. I hope that at the next stage of the Bill my noble friend the Minister will come forward with a suitable amendment to give himself the protection from the danger that will occur in the future. The legislation can then be brought in as soon as people have made up their minds as to what they can say and do in order to achieve their intended aims. I beg to move.
1.30 a.m.
Lord Harris of Greenwich: My Lords, I agree entirely with what the noble Lord has said. This has become a major racket. Some action has been taken in Scotland as a result of a judicial decision, but I find it very disappointing that we have still had no action to deal with this problem. The people who are involved in this extremely lucrative business are preying 0n the elderly and on people with disabilities, and often they direct their activities against women on their own. We cannot afford to allow this truly scandalous situation to continue. I very much hope that we shall have a clear indication that if this amendment is not acceptable there will be a government amendment at Third Reading.
Lord Brabazon of Tara: My Lords, my name is attached to the amendment, as it was to my noble friend's amendment at Committee stage. I should very much like to endorse what my noble friend and the noble Lord, Lord Harris of Greenwich, have said. It is indeed a lucrative business—estimated at around £150 million a year. It is also an extremely easy business to get into. All one needs is a mobile phone and a bit of muscle. There is no bureaucratic procedure to follow and operators can and do charge whatever they like for
1784
this so-called service. No experience is needed and it is therefore little wonder that there are so many cowboy clampers.
The RAC has prepared a dossier on some of these cases. My noble friend has quoted some examples. I shall quote a few more, although not too many at this late hour. Clampers in Doncaster threatened to hold a mother's three year-old daughter ransom until she collected £60 in cash from the bank. Clampers demanded a female motorist's gold tooth as payment on scrap land in Sheffield. A hearse was clamped outside a church—one should not laugh at that as it is a true case. Clampers insisted on taking a wedding ring from the wife of a motorist before releasing the clamp. An RAC patrol van was clamped while going to the assistance of a member in Birmingham. The clamp was not released until six hours after the £70 fee was paid and therefore priority assistance to other members was delayed as a result. In England and Wales the police are often summoned by clamped motorists. However, until there has been a breach of the peace, the police are usually unable to act as clamping on private land is a civil matter. Therefore, we have the ridiculous situation where thousands of hours of police time are wasted because cases are rarely clear cut.
A recent court case illustrates the need for urgent action. Roadrunner Security, which operated in the Slough-High Wycombe area, were recently found guilty of obtaining money by deception. The two owners of Roadrunner Security were found guilty of immobilising 23 cars parked on waste land in High Wycombe without the landowner's permission. The magistrates fined one of them £2,240 and another £1,400, and they were ordered to pay £1,399 compensation to their victims and £75 in costs. This case begs the question: How many other clamping firms are clamping on land without the owner's permission to do so? That is a matter which should be dealt with.
There are a number of things which I should like to see included in any code of practice or licence which might be issued to wheelclampers in future. A warning notice should be clearly displayed and be capable of being illuminated during the hours of darkness. They should certainly say that parking without permission is not allowed and that vehicles parked without permission are liable to be clamped. The fee for removing the wheel clamp and the name, address and telephone number of the clamping agent should be given.
The fee for the removal of the clamp should not exceed the service and administration costs of the clamping service and must not exceed the maximum clamping fee payable for illegal parking on the public road which, as your Lordships are aware, is strictly controlled whether carried out by the police or local authorities. The clamp must be removed within a reasonable length of time—I suggest one hour. Any clamp not removed within three hours of contacting the clamping people should be removed free of charge.
A notice should be affixed to the vehicle in such a manner as to cause no damage thereto, indicating that a wheel clamp has been applied and giving clear instructions as to the means of securing the release of the vehicle. Last but by no means least, and as I referred

1785
to the matter when it was dealt with at Committee stage, there should be an exemption for orange badge holders as there is in police and local authority clamping areas on the public highway.
I suggest that the wheel clamp should not be affixed —and my noble friend gave an example —where the whereabouts of the driver can easily and quickly be ascertained. Last time at Committee stage I referred to the promises made by the Government during the past two years. I remind my noble friend that it was in July 1992, which is two years ago now. The Minister of State at the Home Office said,
"I too am aware of the considerable concerns on the subject".
He went on to say,
"I give him [his honourable friend] the assurance that we will look at the matter with all urgency".
I hope that my noble friend will consider this amendment with a great deal of attention. I am also interested in the question which my noble friend posed. If the Government come up with proposals, is legislation required? If it is, would not the type of amendment which my noble friend has put forward be the ideal solution to at least getting something in preparation for when my noble and learned friend is ready to make his regulations?
Lord Brougham and Vaux: My Lords, I apologise to the House for not being here when the amendment was called. I should like to put forward the case for where we live in Westminster Gardens, Marsham Street. The residents have bought the freehold and we own the property. We have car parking space. We have notices out saying "Private property, no parking. Wheel clamping in operation. Fine £50". We are unable to use our wheel clamp because we do not think that the law is on our side, yet the parking is free to residents and no one else. Will my noble and learned friend enlighten me as to what we should do?
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, this is a theme which has arisen on a number of occasions, and of course it arose in Committee. I feel sometimes that there is something to be said for the clarity of the common law of Scotland, which resolved this matter some two years ago, and which has lain behind some of the questions on this matter that have been asked. The law of Scotland has settled the matter in one direction, but it is not necessarily one which would appeal to all those concerned because what the speeches of noble Lords—in particular that of my noble friend Lord Brabazon—have shown is that this matter is one of some complexity.
My noble friend put forward a number of considerations which he thought would be appropriate to be included in any code of practice in this area. The concerns that he put forward have been reflected in the consultation which has taken place over the years, and have been considered recently by officials in the Home Office. Whatever noble Lords may think—I well understand that they think that this has taken a considerable time—the matter has been, and is, under consideration by the Home Office.
I cannot say when that consideration will bear fruit, but the matter has not been forgotten or overlooked.
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Your Lordships' obvious concern provides a spur to those in the office who are considering it. Despite what was said about his amendment by my noble friend Lord Mottistone, I do not believe that your Lordships will think that this is the appropriate way to lake the matter forward.
Your Lordships are always concerned about the scope of primary and secondary legislation, and might think that this would be much too wide a power to give to the Secretary of State, because the issues raised by my noble friend Lord Brabazon are the kinds of issue upon which your Lordships would wish to take a view. If what is envisaged is a system whereby certain kinds of wheel clamping in certain conditions were to be legalised and others not, your Lordships would wish to consider that. The criteria for legal and illegal clamping is a matter upon which Parliament should have a say in the full sense of legislation.
As I say, I cannot say when legislation on this matter will come forward. Legislation will be required to put the matter on the clear footing that your Lordships desire. I can assure your Lordships, as I fear I have done previously, and perhaps without particular effect, that the matter is under consideration. It has not been forgotten, and your Lordships' concerns are borne: in mind.
Lord Brougham and Vaux: My Lords, before my noble and learned friend sits down, will he advise the House whether the department will be able to take a decision quicker than it did on Sunday trading, which took nearly 10 years?
Lord Rodger of Earlsferry: My Lords, I hope that it will be sooner than that.
Lord Mottistone: My Lords, I am most disappointed that my noble and learned friend does not take advantage of something along the lines of my amendment, because there is a disaster waiting to happen. Sooner or later someone will be killed by mistake. The Government will then look very silly. I might find myself drawing attention to the fact that they did not take an opportunity to have a regulation waiting.
Although on this occasion and earlier my noble and learned friend has said that the matter is being actively considered, and the fact that we have discussed it helps, if there is no impetus it naturally is pushed into the waiting tray rather than into the take-action-tomorrow tray. The great advantage of having handy the power to make an order is that it will encourage people to work faster.
However, the Government will be the loser when the disaster occurs and, on that rather gloomy note, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
1.45 a.m.
Schedule 8 [Increase of Fines]:
Lord Rodger of Lord Rodger of Earlsferry moved Amendment No. 162:
Page 158, line 25, at end insert

("Part III Increase of penalties for certain firearms offences

(1)
Enactment creating offence

(2)
Penalty enactment

(3)
Old maximum term
of imprisonment

(4)
New maximum term
of imprisonment

FIREARMS ACT 1968 (c.27).

Offences under section 1(1) committed in an aggravated form

Schedule 6,

5 years.

7 years.

within the meaning of section 4(4) (possessing etc. shortened

column 4.

shot gun or converted firearm without firearm certificate).

Offences under section 1(1) in any other case (possessing etc.

Schedule 6,

3 years.

5 years.

firearms or ammunition without firearm certificate).

column 4.

Offences under section 2(1) (possessing etc. shot gun without

Schedule 6,

3 years.

5 years.

shot gun certificate).

column 4.

Offences under section 3(1) (trading in firearms without being

Schedule 6,

3 years.

5 years.

registered as a firearms dealer).

column 4.

Offences under section 3(2) (selling firearms to persons without a

Schedule 6,

3 years.

5 years.

certificate).

column 4.

Offences under section 3(3) (repairing, testing etc. firearm for

Schedule 6,

3 years.

5 years.

person without a certificate).

column 4.

Offences under section 3(5) (falsifying certificate, etc., with view

Schedule 6,

3 years.

5 years.

to acquisition of firearm).

column 4.

Offences under section 4(1) (shortening a shot gun).

Schedule 6,

5 years.

7 years.

column 4.

Offences under section 4(3) (conversion of firearms).

Schedule 6,

5 years.

7 years.

column 4.

Offences under section 5(1) (possessing or distributing prohibited

Schedule 6,

5 years.

10 years.

weapons or ammunition).

column 4.

Offences under section 5(1A) (possessing or distributing other

Schedule 6,

(a) On summary

(a) On summary

prohibited weapons).

column 4.

conviction,

conviction,

3 months.

6 months.

(b) On conviction

(b) On conviction

on indictment,

on indictment,

2 years.

10 years.

Offences under section 19 (carrying loaded firearm other than air

Schedule 6,

5 years.

7 years.

weapon in public place).

column 4.

Offences under section 20(1) (trespassing with firearm other than

Schedule 6,

5 years.

7 years.

air weapon in a building).

column 4.

Offences under section 21(4) (contravention of provisions

Schedule 6,

3 years.

5 years.

denying firearms to ex-prisoners and the like).

column 4.

Offences under section 21(5) (supplying firearms to person

Schedule 6,

3 years.

5 years.

denied them under section 21).

column 4.

Offences under section 42 (failure to comply with instructions in

Schedule 6,

3 years.

5 years.

firearm certificate when transferring firearm to person other

column 4.

than registered dealer; failure to report transaction to police).

FIREARMS (NORTHERN IRELAND) ORDER 1981 (SI 1981/155 (NI 2))

Offences under Article 3(1) (possessing etc. firearms or

Schedule 2,

3 years.

5 years.

ammunition without firearm certificate).

column 4.

Offences under Article 4(1) (trading in firearms without being

Schedule 2,

3 years.

5 years.

registered as a firearms dealer).

column 4.

Offences under Article 4(2) (selling firearms to persons without a

Schedule 2,

3 years.

5 years.

certificate).

column 4.

Offences under Article 4(3) (repairing, testing etc. firearm for

Schedule 2,

3 years.

5 years.

person without a certificate).

column 4.

Offences under Article 4(4) (falsifying certificate, etc., with view

Schedule 2,

3 years.

5 years.

to acquisition of firearm).

column 4.

Offences under Article 5(1) (shortening a shot gun).

Schedule 2,

5 years.

7 years.

column 4.

Offences under Article 5(3) (conversion of firearms).

Schedule 2,

5 years.

7 years.

column 4.

Offences under Article 6(1) (possessing or distribution prohibited

Schedule 2,

5 years.

10 years.

weapons or ammunition).

column 4.

Offences under Article 6(1A) (possessing or distributing other

Schedule 2,

(a) On summary

(a) On summary

prohibited weapons).

column 4.

conviction,

conviction

3 months.

6 months.

(b) On conviction

(b) On conviction

on indictment,

on indictment,

2 years.

10 years.

Offences under Article 22(5) (contravention of provisions

Schedule 2,

3 years.

5 years.

denying firearms to ex-prisoners and the like).

column 4.

Offences under Article 22(7) (supplying firearms to person

Schedule 2,

3 years.

5 years.

denied them under Article 22).

column 4.

Offences under Article 43 (failure to comply with instructions in

Schedule 2,

3 years.

5 years")

firearm certificate when transferring firearm to person other

column 4.

than registered dealer; failure to report transaction to police).

The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 148 [Extraditionprocedures]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 163 to 168:
Page 119, line 15, leave out ("subsection (4)") and insert ("subsection (5)").
Page 120, line 3, after first ("powers") insert (", as nearly as may be").
Page 120, line 7, after ("him"") insert ("; and section 16(1) (c) of the Prosecution of Offences Act 1985 (costs on dismissal) shall apply accordingly reading the reference to the dismissal of the information as a reference to the discharge of the person arrested.";").
Page 120, line 7, leave out ("and") and insert:
("( ) after subsection (2) there shall be inserted the following subsection—
"(2A) If a court of committal in England and Wales exercises its power to adjourn the case it shall on so doing remand the person arrested in custody or on bail.";
( ) in subsection (4), for the words from "warrant the trial" to the end there shall be substituted the words "make a case requiring an answer by the arrested person if the proceedings were the summary trial of an information against him; and"). Page 120, line 11, at end insert:
"( ) In section 22 (International Convention cases), in subsection (5), for the words from "warrant his trial" to the end, there shall be substituted the words "make a case requiring an answer by that person if the proceedings were the summary trial of an information against him".
( ) In section 35 (interpretation), after subsection (2), there shall be inserted the following subsection—
"(3) For the purposes of the application of this Act by virtue of any Order in Council in force under it or section 2 of the Extradition Act: 1870, any reference in this Act to evidence making a case requiring an answer by an accused person shall be taken to indicate a determination of the same question as is indicated by a reference (however expressed) in any such Order (or arrangements embodied or recited in it) to evidence warranting or justifying the committal for trial of an accused person."."). Page 120, line 21, leave out second ("and") and insert: ("( ) after paragraph 6(1) there shall be inserted the following sub-paragraph—
"(1A) If the metropolitan magistrate exercises his power to adjourn the case he shall on so doing remand the prisoner either in custody or on bail."; and").
The noble and learned Lord said: My Lords, this is a series of small, technical amendments relating to the transfer procedures and in particular the effect of their changes on extradition procedures. I beg to move. On Question, amendments agreed to.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 169:
After Clause 150, insert the following new clause:
("British transport police powers
Powers of British transport police; emergencies and requests for assistance

. —(1) Section 53 of the British Transport Commission Act 1949 (transport police) shall—

(a) in its application to England and Wales, have effect subject to subsections (2) and (3) below; and

(b) in its application to Scotland, have effect subject to subsections (4) and (5) below.

(2) Notwithstanding the restrictions in subsection (1A) of that section on the powers of a constable appointed under subsection (1) of that section, such a constable may exercise his powers as a constable in any place—

(a) if he reasonably believes that it is appropriate for him to do so—

(i) to prevent or in consequence of the commission of an arrestable offence,

1790

(ii) to prevent injury to any person,

(iii) to safeguard property,

(iv) to secure, or prevent the destruction of, evidence which is relevant to proceedings for a criminal offence, or

(v) in any other emergency; or

(b) if any person has requested him to do so in order to assist him.

(3) Where any constable is acting as such only by virtue of subsection (2) (b) above and the person there mentioned is a constable who is a member of another police force, the police authority who are responsible for that constable shall also be responsible for the first-mentioned constable's acts and defaults as if he were a member of their force.

(4) Notwithstanding the restrictions in subsection (4) (b) of that section on the powers of a constable appointed under subsection (2) of that section, such a constable may exercise his; powers as a constable elsewhere than in the places mentioned in subsection (4) (a) of that section—

(a) if he reasonably believes that it is appropriate for him to do so—

(i) to prevent or in consequence of the commission of an offence for the commission of which a person may be apprehended without warrant,

(ii) to prevent injury to any person,

(iii) to safeguard property,

(iv) to secure, or prevent the destruction of, evidence which is relevant to proceedings for a criminal offence, or

(v) in any other emergency; or

(b) if any person has requested him to do so in order to assist him.

(5) Where any constable is acting as such only by virtue of subsection (4) (b) above and the person there mentioned is; a constable who is a member of another police force, the police authority who are responsible for that constable shall also be responsible for the first-mentioned constable's acts and defaults as if he were a member of their force.").

The noble Lord said: My Lords, the amendment deals with two issues. The first is that the existing area of jurisdiction of the British Transport Police does not enable its officers to act with constabulary powers in the event of emergencies away from the railways. The second issue is that, following privatisation, some parts of the railway network under franchise—for instance, stabling yards—will not be included within their area of jurisdiction.
The first of those issues was raised during our debate on the Transport Police (Jurisdiction) Bill, which the House will recall had to be put through in a single day following an error in the drafting of the rail privatisation legislation. On that occasion, the noble Earl, Lord Ferrers, said:
"I know that the British Transport Police provided the Department of Transport with detailed and indeed quantified information about the matter. The Department of Transport is, in turn, taking it up with my department to see if and how the issue can be addressed. Clearly this is a matter which relates to wider police powers in general. I shall certainly see that the matter is looked at".—[Official Report, 24/3/94; col. 823.]
In reply to a point which I made, he later said:
"I will also see that I am adequately and suitably briefed to answer the noble Lord's amendment if he intends to put it down"—
that is to this Bill—
"which perhaps he may not".—[col. 824.]
As the House will realise, the noble Lord has indeed decided to put this amendment down because it is most important that the issues involved should now be clarified as much as possible.
Perhaps I may deal briefly with the extension of British Transport Police powers off the railways. It is generally conceded that there are occasions when

1791
British Transport Police are required to act as constables away from the railways; for example, when they are called upon to assist a member of the public beyond the confines of British Rail property, or in an emergency, or when they are called upon to assist a police officer in a Home Department police force. At present, when constables act in that emergency situation, they are confronted with a number of quite substantial problems. First, it is unlawful if they exercise any power above that of a private citizen. Secondly, they are acting without the powers of a constable, despite the fact that they are acting in precisely that capacity. Of course, in those circumstances, they would not be subject to legislation relating to complaints against the police.
That situation should be clarified by defining the jurisdiction of British transport police officers so that they can deal with situations in which they find themselves on a routine basis; for example, when they respond to requests for assistance from another police constable or a member of the public or where, in the course of the emergency situation, it is clearly desirable that they should take some form of action as constables.
With regard to the jurisdiction in relation to property when one is dealing with the post-privatisation situation, as I indicated earlier, most railway franchise operators, as the noble and learned Lord will be aware, are required to have a licence issued by Railtrack. In most cases, to obtain such a licence, they must enter into a policing agreement with the British transport police. That in turn gives the officers concerned jurisdiction.
However, some franchise holders—for example, those companies which will operate freight and stabling yards—will not have to have a licence. By definition, they will not have to enter into an agreement with the British transport police. That would mean that British transport police officers might see a crime being committed in a freight yard but they would be unable to act within their powers to prevent it and they would have to call for support from a Home Department police force. That makes no sense at all. I hope that the noble and learned Lord will be able to indicate what action the Government are to take to deal with the situation, which is, as I believe the noble and learned Lord will have been informed, causing a substantial amount of disquiet. I beg to move.
Lord Rodger of Earlsferry: My Lords, the noble Lord, Lord Harris, has, in short compass, raised matters of considerable interest and importance to your Lordships.
As he said, constables of the British transport police are confined in their jurisdiction to railway premises and the surrounding vicinity or to the pursuit of crimes committed on railway premises. That is a perfectly logical position. Those constables do not come under the authority of the chief constable of the local force and the day-to-day policing of the locality is not their professional concern.
The two points which the noble Lord raised were, first, the matter of the jurisdiction of those officers when they move away from the railways and are requested to assist other police officers or members of the public.
1792
The noble Lord has tabled an amendment which tries to define that jurisdiction. But I am sure that the noble Lord will be the first to recognise that there is a fundamental constitutional problem in relation to the fact that the British transport police are, in one sense, a national force, and therefore it is important—and I know that the noble Lord takes a view as to the importance of the local nature of the police force—to get right the jurisdictional aspect.
I can say to the noble Lord—as was said by my noble friend Lord Ferrers when the matter was raised previously—that the Home Office and the Department of Transport are looking into the problems which the noble Lord has raised. As I said, we are discussing difficult issues which involve legal and constitutional matters. The noble Lord has moved an amendment which gives certain powers to the British transport police. Although the noble Lord has included certain restrictions, those powers are, by their very nature, quite wide. In some sense at least, they would give the British transport police constables a roving national jurisdiction to intervene in certain circumstances. That fact raises certain issues and is under active consideration.
The noble Lord's further point arises out of the privatisation. As he said, the vast majority of those who hold licences have licences which require the British transport police to use them for core police activities such as safety, anti-terrorism, and so on. But, as the noble Lord said, there is a small number of exempt operators who will not be required to use the police. As the noble Lord knows, that is a very small proportion.
Nonetheless, the noble Lord has raised a matter of considerable interest. I can undertake to draw it to the attention of my right honourable friends the Secretary of State for Transport and the Home Secretary so that it can also be fed into their discussions. I cannot give a timescale for the matter. It is clearly a matter which requires consideration. But, as I said, it is a delicate matter. The Government recognise and are addressing the matter of the jurisdiction. As I believe the noble Lord knows, it is not a new or an easy question. However, we shall do our best to bring forward an acceptable answer.
Lord Harris of Greenwich: My Lords, I am obliged to the noble and learned Lord. He will not be astonished to learn that I do not propose to continue the debate as it is nearly two o'clock in the morning. However, I can say that I welcome the noble and learned Lord's response to the second leg of my argument, if I may so describe it. Although it is a limited issue, as the noble and learned Lord rightly said, it needs to be addressed with some degree of urgency. The wider question dealing with the extension of police powers in emergency situations is, again, a matter of considerable importance. I hope that we shall see some progress in the matter with a reasonable degree of despatch. Nevertheless, I have made my point and I intend to follow up the matter both with the Home Office and the Department of Transport in the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 169ZA:
Before Clause 151, insert the following new clause:
Procuring disclosure of computer-held personal information

. —(l) In section 5 of the Data Protection Act 1984 (prohibitions in relation to personal data, including its disclosure), after subsection (5), there shall be inserted the following subsection—

"(6) A person who procures the disclosure to him of personal data the disclosure of which to him is in contravention of subsection (2) or (3) above knowing or having reason to believe that the disclosure constitutes such a contravention shall be guilty of an offence."

(2) In consequence of the amendment made by subsection (1) above—

(a) in subsection (5) of that section, after the word "other" there shall be inserted the word "foregoing"; and

(b) in section 28 (exemptions: crime and taxation), in subsection (3)—

(i) after the word "contravening" there shall be inserted the words "or in the case of section 5(2) (d) procuring the contravention of; and

(ii) after the words "to make" there shall be inserted the words "or (in the case of section 5(2) (d)) to procure".").

On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 169ZB:
After Clause 151, insert the following new clause:
("Closed-circuit television by local authorities
Local authority powers to provide closed-circuit television

.—(1) Without prejudice to any power which they may exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime—

(a) providing apparatus for recording visual images of events occurring on any land in their area;

(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;

(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.

(2) Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.

(3) Before taking such a step under this section, a local authority shall consult the chief officer of police for the police area in which the step is to be taken.

(4) In this section—

"chief officer of police", in relation to a police area in Scotland, means the chief constable of a police force maintained for that area;

"local authority"—

(a) in England and Wales, means a county council or district council; and

(b) in Scotland, has the meaning given by section 235(1) of the Local Government (Scotland) Act 1973; and

"telecommunications system" has the meaning given in section 4 of the Telecommunications Act 1984 and "licence" means a licence under section 7 of that Act.").

The noble and learned Lord said: My Lords, in Committee there was a rather brief debate on an amendment tabled by my noble friend Lady Flather to give local authorities specific powers to enable them to incur expenditure on installing closed circuit television surveillance systems in towns and cities. My noble friend said that the existing powers of local councils in that area were unclear and that they needed to be clarified.
At that time, the Government were sympathetic to the aims of the amendment and it was said that they would consider the matter further. The amendment was then withdrawn. The proposed new clause is a result of the consideration that was given to the points made in Committee. The purpose of the clause is simply to remove the doubt which exists about the powers that are available to local councils outside London to enable them to spend money on such closed circuit televisions in town centres and other areas which are not council property. In that sense, it is essentially a technical amendment. I beg to move.
2 a.m.
Lord McIntosh of Haringey: My Lords, I know that the local authority associations will be grateful to the Government for this new clause which is one they have been pressing the Government to adopt.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 169A:
After Clause 152, insert the following new clause:
("Copyright and illicit recordings: enforcement of offences
Enforcement of certain offences relating to copyright and illicit recordings

.—(1) The Copyright, Designs and Patents Act 1988 shall be amended as follows.

(2) After section 107 (offences relating to copyright) there shall be inserted the following section—

"Enforcement by local weights and measures authority.
107A.—(1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 107.
(2) The following provisions of the Trade Description!; Act 1968 apply in relation to the enforcement of that section by such an authority as in relation to the enforcement of that Act—

section 27 (power to make test purchases),

section 28 (power to enter premises and inspect and seize goods and documents),

section 29 (obstruction of authorised officers), and

section 33 (compensation for loss, &c. of goods seized).

(3) Subsection (1) above does not apply in relation to the enforcement of section 10'' in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland.
For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.
(4) Any enactment which authorises, the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 107 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.
(5) Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.".
(3) After section 198 (offences relating to illicit recordings) there shall be inserted the following section—
"Enforcement by local weights and measures authority.
198A.—(1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 198.
(2) The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of that section by such an authority as in relation to the enforcement of that Act—

section 27(power to make test purchases),

1795

section 28 (power to enter premises and inspect and seize goods and documents),

section 29 (obstruction of authorised officers), and

section 33 (compensation for loss, &c. of goods seized).

(3) Subsection (1) above does not apply in relation to the enforcement of section 198 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland.
For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.
(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 198 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.
(5) Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.".").
The noble and learned Lord said: My Lords, in moving Amendment No. 169A, I wish to speak at the same time to Amendment No. 214A. This amendment arises out of an amendment which was tabled in Committee by the noble Lord, Lord Tordoff. As I indicated on that occasion, the Government were sympathetic to the aims of that amendment and I undertook to take this away and consider the matter. I am accordingly happy to bring an amendment forward on this occasion.
I know that copyright owners are active in pursuing pirates, and where appropriate the police also take action. However, there are many links between copyright piracy and counterfeiting of trade marks. As trading standards officers are already actively involved in enforcing trade mark offences, it is logical to empower them also to take action against copyright piracy. If this new clause is enacted, I am sure that the different enforcement agencies—that is, the police and trading standards officers—will be able to co-operate to avoid duplication of effort. I trust that copyright owners will continue to play an active part in enforcement activities.
This amendment also empowers trading standards officers to enforce the offences relating to illicit recordings of performances—so-called bootleg copies. As these copies are closely linked to pirate copies, it is sensible to take this opportunity additionally to allow trading standards officers to enforce those offences. The Government are aware that local authorities may view this amendment as imposing an additional burden on them. I am also aware of course that the noble Lord, Lord Tordoff, suggested that no additional resources would be required, and this may indeed prove to be the case. However, in order to allow for proper consultations to take place with the local authority associations, this amendment will not come into immediate effect. Nonetheless, the amendment to Clause 159 will allow this amendment to have effect throughout the whole of the United Kingdom. I beg to move.
Lord Tordoff: My Lords, there is a tradition with this amendment to speak to it at about two o'clock in the
1796
morning. When I first spoke to it, it was at just about this time. I am most grateful to the Minister for acceding to the suggestion that I made at the Committee stage at a similar hour of the morning. Indeed, he has been generous in going beyond the scope of the amendment that I first proposed. I am quite sure that all those people who are involved in this area of copyright and illicit recordings will be pleased that the Government have taken the opportunity to bring this amendment forward. Clearly, this is a matter which is important to the industry; and I am sure, as I say, that it will be most grateful. I thank the Minister for bringing forward this amendment.
On Question, amendment agreed to.
Clause 153 [Sale of tickets for designated football matches by unauthorised persons]:
[Amendments Nos. 170 to 174 not moved.]
Schedule 11 [Repeals]:
[Amendments Nos. 193A and 197A had been with-drawn from the Marshalled List.]
Clause 154 [Touting for hire car services]:
Earl Ferrers Earl Ferrers moved Amendment No. 175:
Page 125, line 27, after ("154") insert ("of the Criminal Justice and Public Order Act 1994").
The noble Earl said: My Lords, this is a drafting amendment. When the Bill was reprinted after the Committee stage, the words, "of the Criminal Justice and Public Order Act 1994" were not inserted in Clause 154 as they should have been. I beg to move.
On Question, amendment agreed to.
Clause 155 [Minor and consequential amendments and repeals]:
Earl Ferrers Earl Ferrers moved Amendment No. 176:
Page 125, line 36, after ("repealed") insert ("or revoked").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 143. I beg to move. On Question, amendment agreed to.
Schedule 9 [Minor Amendments]:
Earl Ferrers Earl Ferrers moved Amendment No. 176A:
Page 162, leave out lines 1 to 29
The noble Earl said: My Lords, the amendment was spoken to with Amendment No. 158. I beg to move. On Question, amendment agreed to.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, Amendment No. 177A has been marshalled in the wrong place on the Marshalled List and should be called after Amendment No. 176A and before Amendment No. 177.
Baroness David Baroness David moved Amendment No. 177A:
Page 162, line 34, at end insert:
( "Treatment of mental condition of offenders placed on probation

. —(1) Paragraph 5 of Schedule 1A to the Powers of Criminal Courts Act 1973 (requirement in probation order for treatment of offender's mental condition) shall be amended as follows.

(2) In sub-paragraph (2)—

(a) after the words "such part" there shall be inserted the words "or parts"; and

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(b) after the words "medical practitioner" there shall be inserted the words "or a chartered psychologist (or both, for different parts)".

(3) In sub-paragraph (3) (c), after the words "medical practitioner" there shall be inserted the words "or chartered psychologist (or both)".

(4) In sub-paragraphs (6) and (8), after the words "medical practitioner" (wherever they occur) there shall be inserted the words "or chartered psychologist".

(5) In sub-paragraph (10), after the words "In this paragraph" there shall be inserted the words "—

"chartered psychologist" means a person for the time being listed in the British Psychological Society's Register of Chartered Psychologists; and".").

The noble Baroness said: My Lords, I moved a very similar amendment at Committee stage on 16th June. The purpose of that amendment was to allow conditions of treatment for a medical condition in a probation order to be carried out by a clinical psychologist. The present law appears to restrict such treatment conditions to treatment carried out by or under the direction of a duly qualified medical practitioner. But multi-disciplinary treatment in psychiatric services has ensured that clinical psychologists have developed expertise in providing treatment to offender patients. In some cases that is the most appropriate form of treatment.
Ways have been found to get round the present law, but it seemed better to change the law and clarify and regularise the position. That was the reason for the amendment that I moved.
The noble Earl said in responding that he sympathised with the amendment and if I was willing to withdraw it he would look at it and perhaps come forward with an amendment at Report stage which would get over the technical difficulties with my amendment. Amendment No. 177A is that amendment. I am most grateful to the Minister for producing it.
In his letter to me explaining the position, he said:
"we recognise that, in practice, clinical psychologists already regularly take on the responsibility for the supervision of offenders who are on probation and who are required to undergo treatment for a mental condition. This is considered to be quite effective in treating their offending behaviour.
The amendment provides the opportunity to specify that only a chartered psychologist, who is a person who is listed on the British Psychological Society's Register of Chartered Psychologists, may direct or carry out this treatment. The advantage of this formulation is that it does not confine to clinical psychologists the ability to treat offenders on probation. Forensic psychologists and counselling psychologists, for example, can also have a valuable role in the treatment.
The wording of the amendment also ensures that any psychologist who undertakes treatment will be properly qualified since it is quite possible for a person to complete a course of psychology and take up practice, but only chartered psychologists are recognised by the profession and are bound by the profession's code of ethics".
I hope that that is sufficient explanation to make the matter clear. I have great pleasure in moving the amendment and again thanking the noble Earl for supplying it. I beg to move.
Earl Ferrers: My Lords, the amendment of the noble Baroness would confirm what is already being done. The amendment specifies that only a chartered psychologist may direct or carry out treatment for a mental condition under a probation order with a requirement. This wording of the amendment does not confine to clinical psychologists the ability to treat
1798
offenders on probation. Forensic psychologists and counselling psychologists can also have a valuable role in the treatment.
The amendment requires that any psychologist who is undertaking treatment must be properly qualified. It is quite possible for a person to complete a course in psychology and then to take up a practice, but it would be only chartered psychologists who are recognised by the profession and who are bound by the profession's code of ethics who would be allowed under this amendment to treat offenders with a mental condition.
I welcome and support the noble Baroness's amendment, which I advise your Lordships to accept.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 177:
Page 165, line 24, at end insert:
("Transfers of proceedings
.In section 62(10) of the Police and Criminal Evidence act 1984 (power of court to draw inferences from failure of accused to consent to provide intimate sample), after paragraph (a) there shall be inserted the following paragraph—

"(aa) a judge, in deciding whether to grant an application made by the accused under—

(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act); and".").

The noble Earl said: My Lords, I beg to move Amendment No. 177, which was taken with Amendment No. 56.
On Question, amendment agreed to.
Baroness David Baroness David moved Amendment No. 178:
Page 168, line 39, leave out ("subsection") and insert ("subsections").
The noble Baroness said: My Lords;, in moving the amendment, I speak also to Amendments Nos. 180 and 181.
The amendments stipulate that courts may dispense with pre-sentence reports only if their sentence would be the same whatever the content of any such report. Section 3 of the Criminal Justice Act 1991 suites that a court must consider a pre-sentence report prepared by a probation officer or social worker before passing a custodial sentence on an offender. The only exception is where the offence is triable only on indictment—that is, murder, manslaughter, rape, causing grievous bodily harm or robbery—and the court considers such a report to be unnecessary.
Section 6 of the 1991 Act required courts also to obtain pre-sentence reports before passing certain community sentences such as community service orders and probation orders with certain additional conditions. This was based on the assumption that before passing such a sentence it made sense to obtain a report containing an assessment of the offender's suitability for it and for alternative non-custodial sentences made by the agency which would be responsible for supervising the sentence.
However, the Bill empowers courts to dispense with reports before passing these sentences if they consider that obtaining a report is unnecessary. These amendments would retain the mandatory requirement to obtain a pre-sentence report in these cases unless the court is satisfied that its sentence will be the same whatever the content of a pre-sentence report. The circumstances in which a court might reach the latter conclusion could include: first, where the offender is already serving a prison sentence and the court's intended sentence would not increase the overall length of time which he would have to spend in prison; secondly, where the envisaged sentence falls at the lower end of the range of sentences which are possible for the offence within Court of Appeal guidelines, for example in a drugs case; and, thirdly, where the offender has been remanded in custody and the short custodial sentence which the court considers appropriate would result in his immediate release because of the time spent on remand. In other cases, however, the court would be required to obtain a pre-sentence report.
Those who have been involved with sentencing know the immense value of having a really up-to-date pre-sentence report. There are a great many reasons why that is important. The reasons have been discussed previously and at this time of night I shall not enlarge on them. However, I believe that the report is of extreme importance except in those cases where the sentence would be the same whatever the content of the report. I beg to move.
Lord Harris of Greenwich: My Lords, at this hour of the morning I certainly do not propose to extend the length of the debate. In passing, I have to say—I have said it once or twice before—that this is a classic example of how we should not be legislating. It is nearly 12 hours since this House met yesterday afternoon. This is a major issue. There are eight Members of your Lordships' House present. If there were a Division on the issue, the Government would be extremely lucky to find that they had a quorum. That is not an indication that I propose to put the matter to a vote but that I hope that serious consideration will be given to the way in which business is conducted in this House. It is absolutely absurd that important issues of this kind are being handled in this fashion. Last week we did not sit on a Friday. We could have had a useful debate on a number of the issues which have taken so much of our time today.
Having made that complaint—I propose to repeat it on many occasions in the future if we continue to organise our business in this extremely incompetent fashion—I simply say that I agree with everything that the noble Baroness, Lady David, said. I very much hope that the remarks I have made will be heard by the Government. If this process continues serious difficulties will arise for them from many quarters of the House.
Earl Ferrers: My Lords, I hear the bleat of the noble Lord, Lord Harris of Greenwich. I would not say that I do not have some sympathy with him. He blames the Government for the situation. Of course, the Government are not entirely to blame for these matters.
1800
The business is very much a matter for your Lordships. If your Lordships decide to spend a long time talking about various subjects—
Lord McIntosh of Haringey: My Lords, the Government have put down more amendments than all the rest of the House put together today and yesterday.
2.15 a.m.
Earl Ferrers: My Lords, what on earth has that to do with it? We have not spent a long time discussing the amendments, we have been trying to consider the amendments which your Lordships have put down. They have been most unsatisfactory and that is why they need so much discussing. I am actually trying to be quite helpful.
The noble Lord, Lord Harris of Greenwich, always has a way of sidetracking us from what we were really trying to discuss, which in this case is the noble Baroness's amendment. Perhaps we may revert to it. Her amendments attempt to define the circumstances in which a pre-sentence report might be waived, and this will, of course, limit the court's discretion.
The amendments allow the court to dispense with a pre-sentence report only if it is of the opinion that the sentence which it will pass will be the same whatever the pre-sentence report says. This will mean that, in practice, it will rarely be possible to dispense with a pre-sentence report.
The amendments suggest that the court would be able to decide that the sentence which it would pass would be the same, whatever the content of the pre-sentence report. I am bound to say that I thought this seemed an absurdity because a court cannot possibly know in advance what sentence it might have passed if it had seen a pre-sentence report. How could it know that the sentence would not be any different from the sentence which it would have passed if it had not seen the pre-sentence report?
The definition in the amendment, far from adding a helpful explanation, is positively unhelpful. In any individual case, where a report is waived, it is impossible for the court to know whether the final outcome, in terms of the sentence, its length or its type, would have been different.
The present wording is clear and simple. It allows sentencers to decide, in the individual circumstances of a case, whether a pre-sentence report is necessary. The Appeal Court will, of course, in time provide further guidance. I suggest that further definition in the Bill is not necessary.
Baroness David: My Lords, I think that everything the noble Earl has said convinces me that an up-to-date pre-sentence report is essential. That is exactly what we tried to secure earlier on, but again it was at an unfortunate time of night or morning.
I do not waver at all in my opinion that it is essential to have pre-sentence reports which are up-to-date. This was just a way of trying to achieve that in a slightly different manner. I hope we shall come back to the matter at Third Reading. It is extremely important, if we are to get proper sentencing which will help the offender. So I give warning that I am quite certain we

1801
shall revert to this, and I reinforce the objections of the noble Lord, Lord Harris, to conducting business of this importance at this time of the morning. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 179 to 182 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 183:
Page 171, line 28, leave out from ("than") to ("an") in line 32.
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 184:
Page 172, line 45, leave out from beginning to end of line 3 on page 173.
The noble Earl said: My Lords, I beg to move Amendment No. 184 and speak to Amendments Nos. 202 and 204 at the same time. These are technical amendments.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 185:
Page 173, line 33, at end insert:
("(2) For the purposes of section 69 of the Northern Ireland (Emergency Provisions) Act 1991 (temporary provisions) the amendment made in that Act by this paragraph shall be treated, as from the time when this paragraph comes into force, as having been continued in force by the order made under subsection (3) of that section which has effect at that time.").
The noble Earl said: My Lords, this too is a purely technical amendment to ensure that an amendment to the Northern Ireland (Emergency Provisions) Act 1991 will fall to be renewed by Parliament each year. I beg to move.
On Question, amendment agreed to.
Schedule 10 [Consequential Amendments]:
Earl Ferrers Earl Ferrers moved Amendment No. 186:
Page 174, line 28, at end insert:
("Responsibility for fine for breach of requirements of secure training order
. In section 55(1A) of the Children and Young Persons Act 1933 (power of court to order parent or guardian to pay fine imposed on child or young person), after paragraph (b) there shall be inserted the following paragraph—
"(c) a court would impose a fine on a child or young person under section 4(3) of the Criminal Justice and Public Order Act 1994 (breach of require-ments of supervision under secure training order),".").
The noble Earl said: My Lords, the purpose of this amendment is to make clear what happens when a juvenile who is subject to a secure training order is found to have been in breach of supervision and made subject to a fine.
As your Lordships know, the second half of a secure training order is served under supervision in the community. Under Clause 4, where an offender is in breach of that supervision, the court may either return the offender to the secure training centre for up to three months or impose a fine not exceeding level 3 on the standard scale.
At Committee stage, my noble friend Lord Elton asked whether it would be the parents or the child who should pay the fine. We have considered the matter since then and have decided that the same arrangements should apply which apply in respect of fines imposed on
1802
youngsters of this age who fail to comply with requirements of a supervision order. This means in effect that where the juvenile is under 16 it is the duty of the court to order that the fine is to be paid not by the: juvenile but by the parent or guardian unless the court is; satisfied that the parent or guardian cannot be found or that it would be unreasonable to make an order for payment having regard to the circumstances of the case.
In the case of juveniles over the age of 16—there may be a small number of juveniles of that age who fail to comply with secure training order supervision—the court is not under a duty to make the parents pay but it will have a power to do so. I hope that noble Lords will agree to the amendment. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 186A to 186D:
Page 178, line 17, at end insert:
("Sexual offences: male rape
. In section 9(2) of the Theft Act 1968 (offences which if intended by a trespasser constitute burglar), for the words "raping any woman" there shall be substituted the words "raping any person".").
Page 179, line 14, at end insert:
("Sexual offences: male rape

.—(1) The Sexual Offences (Amendment) Act 1976 shall be amended as follows.

(2) In section 1(2) (reasonable grounds for belief in consent to intercourse), after the word "woman" there shall be inserted the words "or man".

(3) In section 2(3) (restrictions on evidence at trials for rape etc.), after the word "woman" there shall be inserted the words "or man".

(4) In section 7(2) (interpretation of terms used in the Act)—

(a) the words from "references" to "only);" shall be omitted; and

(b) for the words "and section 46 of that Act" there shall be substituted the words "section 46 of the Sexual Offences Act 1956".").

Page 179, line 14, at end insert:
("Sexual offences: male rape

.—(1) Section 4 of the Sexual Offences (Amendment) Act 1976 (anonymity of complainants in rape etc. cases) shall be amended as follows.

(2) In subsection (1)—

(a) in paragraph (a)—

(i) after the word "woman" in both places where it occurs there shall be inserted the words "or man";

(ii) for the words "woman's name nor her address" there shall be substituted the words "name nor the address of the woman or man";

(iii) after the words "of her" there shall be inserted the words "or him";

(iv) for the words "her lifetime" there shall be substituted the words "that person's lifetime"; and

(v) for the words "identify her" there shall be substituted the words "identify that person"; and

(b) in paragraph (b)—

(i) after the word "woman" there shall be inserted the words "or man"; and

(ii) for the words "her lifetime" there shall be substituted the words "that person's lifetime".

(3) In subsection (5A), after the word "woman" there shall be inserted the words "or man".

(4) In subsection (5B), for the words "woman's peace or comfort" there shall be substituted the words "peace or comfort of the woman or man".

(5) In subsection (6), in the definition of "complainant", after the word "woman" there shall be inserted the words "or man".".

Page 183, line 22, at end insert:
("Sexual offences: male rape and buggery
. In Part I of Schedule 5 to the Police and Criminal Evidence Act 1984 (serious arrestable offences mentioned in section 116(2) (a) of that Act), for item 7 (buggery) there shall be substituted— "7.
Buggery with a person under the age of 16.".").
The noble Lord said: These amendments were spoken to by my noble friend Lord Ponsonby of Shulbrede when he moved Amendment No. 126B, which the House agreed to. With the leave of the House I should like to move all four amendments en bloc.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 187:
Page 183, line 28, at end insert:
("( ) In Article 3(1) (a), after the word "questioned" there shall be inserted the words "under caution".").
The noble Earl said: My Lords, this amendment was taken with Amendment No. 34. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 188:
Page 188, line 14 at end insert:
(". For Schedule 5 to the Criminal Justice Act 1991 (supplementary provisions about the Parole Board) there shall be substituted the following Schedule—

SCHEDULE 5
THE PAROLE BOARD: SUPPLEMENTARY PROVISIONS
Status and capacity
1.—(1) The Board shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board's property shall not be regarded as property of, or held on behalf of, the Crown.
(2) It shall be within the capacity of the Board as a statutory corporation to do such things and enter into such transactions as are incidental to or conductive to the discharge of its functions under Part II of this Act.
Membership
2.—(1) The Board shall consist of a chairman and not less than four other members appointed by the Secretary of State.
(2) The Board shall include among its members—

(a) a person who holds or has held judicial office.

(b) a registered medical practitioner who is a psychiatrist;

(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after-care of discharged prisoners; and

(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders.

(3) A member of the Board—

(a) shall hold and vacate office in accordance with the terms of his appointment;

(b) may resign his office by notice in writing addressed to the Secretary of State;

and a person who ceases to hold office as a member of the Board shall be eligible for re-appointment.
Payments to members
3.—(1) The Board may pay to each member such remuneration and allowances as the Secretary of State may determine.
(2) The Board may pay or make provision for paying to or in respect of any member such sums by way of pension, allowances or gratuities as the Secretary of State may determine.
(3) If a person ceases to be a member otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances that make it right that he should receive compensation, the Secretary of State may direct the Board to make to that person a payment of such amount as the Secretary of State may determine.
(4)A determination or direction of the Secretary of State under this paragraph requires the approval of the Treasury.
Proceedings
4.—(1) Subject to the provisions of section 32(5) of this Act, the arrangements relating to meetings of the Board shall be such as the Board may determine.
(2) The arrangements may provide for the discharge, under the general direction of the Board, of any of the Board's functions by a committee or by one or more of the members or employees of the Board.
(3) The validity of the proceedings of the Board shall not be affected by any vacancy among the members or by any defect in the appointment of a member.
Staff
5.—(1) The Board may appoint such number of employees as it may determine.
(2) The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the Board.
(3) Any determination under sub-paragraph (1) or (2) shall require the approval of the Secretary of State given with the consent of the Treasury.
(4) The Employers' Liability (Compulsory Insurance) Act 1969 shall not require insurance to be effected by the Board.
6.—(1) Employment with the Board shall be included among the kinds of employment to which a scheme under section 1 of the Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed) at the end of the list of Other Bodies there shall be inserted—
"Parole Board.".
(2) The Board shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to this paragraph in the sums payable under the Superannuation Act 1972 out of money provided by Parliament.
Financial provisions
7.—(1) The Secretary of State shall pay to the Board—

(a) any expenses incurred or to be incurred by the Board by virtue of paragraph 3 or 5; and

(b) with the consent of the Treasury, such sums as he thinks fit for enabling the Board to meet other expenses.

(2) Any sums required by the Secretary of State for making payments under sub-paragraph (1) shall be paid out of money provided by Parliament.
Authentication of Board's seal
8. The application of the seal of the Board shall be authenticated by the signature of the Chairman or some other person authorised for the purpose.
Presumption of authenticity of documents issued by Board
9. Any document purporting to be an instrument issued by the Board and to be duly executed under the seal of the Board or to be signed on behalf of the Board shall be received in evidence and shall be deemed to be such an instrument unless the contrary is shown.
Accounts and audit
10.—(1) It shall be the duty of the Board—

(a) to keep proper accounts and proper records in relation to the accounts;

(b) to prepare in respect of each financial year a statement of accounts in such form as the Secretary of State may direct with the approval of the Treasury; and

(c) to send copies of each such statement to the Secretary of State and the Comptroller and Auditor General not later than 31st August next following the end of the financial year to which the statement relates.

(2) The Comptroller and Auditor General shall examine, certify and report on each statement of accounts sent to him by the Board and shall lay a copy of every such statement and of his report before each House of Parliament.
(3) In this paragraph, "financial year" means the period beginning with the date on which the Board is incorporated and ending with the next following 31st March, and each successive period of twelve months.
Reports
11. The Board shall as soon as practicable after the end of each financial year make to the Secretary of State a report on the performance of its functions during the year; and the Secretary of State shall lay a copy of the report before Parliament." ").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 142. I beg to move.
On Question, amendment agreed to.
Schedule 11 [Repeals]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 189 and 190:
Page 189, line 11, column 3, at beginning insert:

("In section 43(1) (a), the words "trial or".").

Page 189, line 13, column 3, at end insert:

("In section 43(2) (b) and (c), the words "trial or".").

The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 56. I beg to move.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment Nos. 191 and 192:
Page 189, line 14, column 3, at beginning insert:
("In section 2(1), the word "unlawful".") .
Page 189, line 14, column 3, at end insert:
("In section 3(1), the word "unlawful".") .
The noble Earl said: My Lords, in moving these amendments I should like also to speak to Amendment No. 197. These are purely technical amendments. They are consequential upon your Lordships' decision to accept at Committee stage an amendment put forward by the noble Lord, Lord Lester of Herne Hill, which clarifies that it is an offence for a man to rape his wife. I beg to move.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 193:
Page 189, line 30, at end insert:

("1967 c.60.

Sexual Offences Act 1967.

In section 1(1), the words "but subject to the provisions of the next following sec- tion". Section 1(5). Section 2.").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
[Amendment No. 193A not moved.]
Earl Ferrers Earl Ferrers moved Amendments Nos. 194 and 195:
Page 189, line 40, column 3, leave out from ("from") to end of line 42 and insert:

(""section 13(3)" to "but"").

Page 190, line 18, at end insert:

("1973 c. 62.

Powers of Criminal Courts Act 1973.

In section 32(1) (b), the words "tried or".").

The noble Earl said: My Lords, these two amendments were spoken to with Amendment No. 56. I beg to move.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 196:
Page 190, line 18, at end insert:

("1974 c.23.

Juries Act 1974.

In section 10, the words "physical disa-bility or".").

The noble Earl said: My Lords, this amendment is consequential to the new clause on disabled persons and jury service which was accepted by the House on 7th July. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 197:
Page 190, line 25, at end insert:
("1976 c. 82. Sexual Offences (Amendment) Act 1976, Section 1(1).")
The noble Earl said: My Lords, this amendment was; spoken to with Amendment No. 191. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 197A:
Page 190, line 25, at end insert:

("1976 c. 82.

Sexual Offence (Amendment) Act 1976.

In section 7(2), the words from "referen-ces" to "only);".").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 126B. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 198:
Page 190, line 27, at end insert:

("1978 c. 30.

Interpretation Act 1978.

In Schedule 1, para-graph (a) of the defini-tion of "Committed for trial".").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 56. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 198A:
Page 190, line 53, at end insert:

("1980 c. 62.

Criminal Justice (Scotland) Act 1980.

In section 80, subsec-tion (5); in subsection (7), paragraph (d) and the word "; or" im-mediately preceding that paragraph; and subsection (8).").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 153B. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos 199 and 200:
Page 190, line 53, at end insert:

("1981 c. 47.

Criminal Attempts Act 1981.

In section 2(2) (g), the words "or committed for trial".").

Page 190, line 54, column 3, at beginning insert:

("In section 1(2), the words "trial or".").

The noble Earl said: My Lords, Amendments Nos. 199 and 200 were spoken to with Amendment No. 56. I beg to move.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 201:
Page 191, line 3, at end insert:

("S.I. 1982/1536 (N.I. 19)

Homosexual Offences (Northern Ireland) Order 1982.

In Article 3, in para-graph (1), the words "and Article 5 (merch-ant seamen)" and para-graph (4). Article 5").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 202:
Page 191, column 3, leave out line 33.
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 184. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 203:
Page 192, line 13, column 3, at end insert ("section 50(4)").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 143. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 204:
Page 192, line 13, column 3, at end insert: ("Section 52(2).").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 184. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 205:
Page 192, line 17, at end insert:
("S.I. 1992/1829. Parole Board (Transfer of Functions) Order 1992. In Article 3, the words from "and 39" to "licence)" and the words "and (4)".").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 143. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 206:
Page 192, line 21, after second ("the") insert (", Sexual Offences Act 1967, the").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 206A:
Page 192, line 21, after ("1968") insert (", the Sexual Offences (Amendment) Act 1976").
The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 126B. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 207 and 208:
Page 192, line 21, leave out ("and").
Page 192, line 22, at end insert (", the Criminal Justice (Scotland) Act 1980 and the Homosexual Offences (Northern Ireland) Order 1982.").
The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 154. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 159 [Short title, commencement and extent]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 208A:
Page 126, line 33, after ("section") insert ("75 and").
The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 124A. I beg to move.
On Question, amendment agreed to.
[Amendment No. 209 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 209A:
Page 126, line 44, leave out ("75") and insert ("74").
The noble Earl said: My Lords, I understand that this amendment goes with an amendment which was accepted earlier. On behalf of my noble friend, I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 209B:
Page 126, line 45, after ("VIII,") insert ("(Rape of women and men), (Sexual offences: revised penalties),").
The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 126B. I beg to move. On Question, amendment agreed to.
Baroness David Baroness David moved Amendment No. 210:
Page 126, line 45, after ("VIII") insert ("(offence of selling confidential financial information)").
The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 146B, when the House accepted the amendment of the noble and learned Lord, Lord Brightman. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 211:
Page 126, line 45, before ("144") insert ("Powers to recall prisoners released on licence),").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 143. I beg to move. On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 212:
Page 126, line 45, after ("144,") insert ("145, 146,")
The noble Earl said: This amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
[Amendment No. 212ZA not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 212A:
Page 126, line 46, at end insert:
("(4A) Section 75 shall come into force in relation to the area of any local authority on such day as the Secretary of State may appoint by order made by statutory instrument, provided that the day appointed shall not be before 1st July 1999.
(4B) No order under subsection (4A) above shall be made unless it has been laid before, and approved by, each House of Parliament.").
The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 124A. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 213:
Page 127, line 10, leave out from ("56") to ("65") in line 11 and insert ("to 62, ').
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 98. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 213A:
Page 127, line 11, after ("77,") insert ("145(6),").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 153B. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 213B:
Page 127, line 11, after ("147(1),") insert ("(2A) and (3A), (Local authority powers to provide closed-circuit television)").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 169ZB. I beg to move.
On Question, amendment agreed to.
[Amendment No. 214 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 214A:
Page 127, line 15, after ("152,") insert ("(Enforcement of certain offences relating to copyright and illicit recordings),").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 169A. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 215:
Page 127, line 26, after ("144(2),") insert ("145(3),").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 153B. I beg to move.
On Question, amendment agreed to.
[Amendment No. 216 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 217:
Page 127, line 31, after ("81(2)") insert (",144(3), 146")
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
[Amendment No. 218 had been withdrawn from the Marshalled List.]
In the Title:
Earl Ferrers Earl Ferrers moved Amendment No. 218A:
Line 1, leave out from first ("to") to end of title and insert ("make further provision in relation to criminal justice (including employment in the prison service); to amend or extend the criminal law and powers for preventing crime and enforcing that law; to amend the Video Recordings Act 1984; and for purposes connected with those purposes.").
The noble Earl said: My Lords, I should be delighted to be able to tell the noble and learned Lord, Lord Simon of Glaisdale—if he were here—that Amendment No. 218A is being moved because, if not necessarily inspired by the noble and learned Lord's own amendment brought forward at Committee stage, it certainly reflects the spirit of that amendment. I am sure that it would have the approval of the noble and learned Lord and also that of my noble and learned friend Lord Hailsham who is always keen on brevity, and the noble Lord, Lord Harris of Greenwich, who takes every opportunity of pillorying the Government over anything. The length of the Long Title did not escape the lash of the noble Lord's tongue, even if the tongue is not at present in the Chamber.
The amendment considerably shortens the Long Title of the Bill. I beg to move.
Lord Tordoff: My Lords, I rise in defence of my noble friend and also to say that the noble and learned Lord, Lord Simon of Glaisdale, is always hen; in spirit whether or not he is here in person. He will no doubt be grateful to the Minister for making this; amendment to the Long Title.
Lord McIntosh of Haringey: My Lords, I thought that the noble and learned Lord the Lord Chancellor would wish to inform the House that Amendment No. 219 is pre-empted by Amendment No. 218A.
Earl Ferrers: My Lords, while my noble and learned friend is considering that important procedural matter perhaps I can say that I am grateful to the noble Lord, Lord Tordoff, for his gracious comments. The noble: Lord, Lord Harris, said that we were making the Long Title very long and we accepted the spirit of what both, he and the noble and learned Lord, Lord Simon of Glaisdale, said; that is, to make the Long Title shorter. In fact, if we had made the Long Title shorter in the beginning it would have enabled more things to be added to the Bill than having a longer Long Title at the beginning. Now that we have come to the end of the Bill it is appropriate to make the Long Title shorter.
On Question, amendment agreed to.
[Amendment No. 219 not moved.]

Croydon Tramlink Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.

London Local Authorities Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at twenty-nine minutes before three o'clock.