Criminal Justice and Public Order Bill

HL Deb 12 July 1994 vol 556 cc1714-803

Further consideration of amendments on Report resumed.

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—

1. (a) the shop is used wholly or mainly for the retail sale of such products; or
2. (b) the advertisement—
1. (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
2. (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") 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—

1. (a) on summary conviction to a fine not exceeding level 4 on the standard scale, or
2. (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—

1. (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
2. (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 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 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 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.

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 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 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.

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 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 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 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 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 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 —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 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 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 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.

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 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.

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 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—

1. (a) he intends thereby to stir up hatred against any group of persons in Great Britain on the ground of their religious beliefs; and
2. (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 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.

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, 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 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 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 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.

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 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 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 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.

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 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.

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 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 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 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.

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 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 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 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 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".

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: 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.

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 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 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.

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 moved Amendment No. 152B:

Page 117, line 24, at end insert:

("( ) This section shall not come into force until the Secretary of State has—

1. (a) laid before Parliament,
2. (b) published, and
3. supplied to—
1. (i) Health Education and Authority, and
2. (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 —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 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 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 moved Amendment No. 153A:

After Clause 144, insert the following new clause:

Restriction on custody of children by homosexuals

1. (" .—(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. (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 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 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 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 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 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 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 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 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 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) moved Amendment No. 153B:

Page 117, leave out line 30 and insert:

("—

1. (a) subsection (5) (homosexual acts in the armed forces) shall cease to have effect;
2. (b) in subsection (7)—
1780
1. (i) after paragraph (b) there shall be inserted the word "or"; and
2. (ii) paragraph (d) (homosexual acts on merchant ships) and the word "; or" immediately preceding that paragraph shall cease to have effect; and
3. (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 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 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 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 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 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 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 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—

1. (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
2. (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 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 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 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 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 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.

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 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 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 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. . —(1) Section 53 of the British Transport Commission Act 1949 (transport police) shall—
1. (a) in its application to England and Wales, have effect subject to subsections (2) and (3) below; and
2. (b) in its application to Scotland, have effect subject to subsections (4) and (5) below.
2. (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—
1. (a) if he reasonably believes that it is appropriate for him to do so—
1. (i) to prevent or in consequence of the commission of an arrestable offence,
1790
2. (ii) to prevent injury to any person,
3. (iii) to safeguard property,
4. (iv) to secure, or prevent the destruction of, evidence which is relevant to proceedings for a criminal offence, or
5. (v) in any other emergency; or
2. (b) if any person has requested him to do so in order to assist him.
3. (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. (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—
1. (a) if he reasonably believes that it is appropriate for him to do so—
1. (i) to prevent or in consequence of the commission of an offence for the commission of which a person may be apprehended without warrant,
2. (ii) to prevent injury to any person,
3. (iii) to safeguard property,
4. (iv) to secure, or prevent the destruction of, evidence which is relevant to proceedings for a criminal offence, or
5. (v) in any other emergency; or
2. (b) if any person has requested him to do so in order to assist him.
5. (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 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.

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 moved Amendment No. 169ZA:

Before Clause 151, insert the following new clause:

Procuring disclosure of computer-held personal information

1. . —(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. (2) In consequence of the amendment made by subsection (1) above—
1. (a) in subsection (5) of that section, after the word "other" there shall be inserted the word "foregoing"; and
2. (b) in section 28 (exemptions: crime and taxation), in subsection (3)—
1. (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
2. (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 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. .—(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—
1. (a) providing apparatus for recording visual images of events occurring on any land in their area;
2. (b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;
3. (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. (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. (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. (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"—
1. (a) in England and Wales, means a county council or district council; and
2. (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 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. .—(1) The Copyright, Designs and Patents Act 1988 shall be amended as follows.
2. (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 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 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 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 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 moved Amendment No. 177A:

Page 162, line 34, at end insert:

( "Treatment of mental condition of offenders placed on probation

1. . —(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. (2) In sub-paragraph (2)—
1. (a) after the words "such part" there shall be inserted the words "or parts"; and
1797
2. (b) after the words "medical practitioner" there shall be inserted the words "or a chartered psychologist (or both, for different parts)".
3. (3) In sub-paragraph (3) (c), after the words "medical practitioner" there shall be inserted the words "or chartered psychologist (or both)".
4. (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. (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 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 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—

1. (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
2. (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 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.

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 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 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 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 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 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 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 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. .—(1) The Sexual Offences (Amendment) Act 1976 shall be amended as follows.
2. (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. (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. (4) In section 7(2) (interpretation of terms used in the Act)—
1. (a) the words from "references" to "only);" shall be omitted; and
2. (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. .—(1) Section 4 of the Sexual Offences (Amendment) Act 1976 (anonymity of complainants in rape etc. cases) shall be amended as follows.
2. (2) In subsection (1)—
1. (a) in paragraph (a)—
1. (i) after the word "woman" in both places where it occurs there shall be inserted the words "or man";
2. (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";
3. (iii) after the words "of her" there shall be inserted the words "or him";
4. (iv) for the words "her lifetime" there shall be substituted the words "that person's lifetime"; and
5. (v) for the words "identify her" there shall be substituted the words "identify that person"; and
2. (b) in paragraph (b)—
1. (i) after the word "woman" there shall be inserted the words "or man"; and
2. (ii) for the words "her lifetime" there shall be substituted the words "that person's lifetime".
3. (3) In subsection (5A), after the word "woman" there shall be inserted the words "or man".
4. (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. (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 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 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—