Criminal Justice and Public Order Bill

HL Deb 12 July 1994 vol 556 cc1643-708

3.7 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Earl Ferrers.)

On Question, Motion agreed to.

The Earl of Longford moved Amendment No. 145:

After Clause 140, insert the following new clause:

("Duty to provide resettlement assistance to released prisoners

1. .—(1) Where a released prisoner is subject to a licence, it shall be the duty of the Secretary of State to ensure that the supervision received as a condition of that licence includes advice and assistance to further the resettlement of that released prisoner.
2. (2) Where a short-term prisoner (within the meaning of section 33(1) (a) of the Criminal Justice Act 1993) is released unconditionally, it shall be the duty of the Secretary of State to ensure that that released prisoner receives advice and assistance to further his resettlement.
3. (3) In subsections (1) and (2) above, "advice and assistance" to further the resettlement of released prisoners shall include, in particular, advice and assistance in connection with finding—
1. (a) accommodation; and
2. (b) employment.").

The noble Earl said: My Lords, my amendment would have the effect of placing a statutory responsibility on the Government for the welfare of all ex-prisoners, especially in regard to employment and housing. I have spoken twice on the subject recently. I expressed my views at each stage and they were supported in principle by my noble friend Lord McIntosh and the acting leader of the Liberal Party. Indeed, the latter made some important points which may or may not be repeated today.

I have admitted that if my proposal were put into effect some considerable increase in the number of probation officers would be required. My noble friend Lord McIntosh pointed out that it would come to that in the long run because there would be a big reduction in crime if there was not only an imaginative policy for ex-prisoners but also one for resettlement as advocated by myself in the past and also by the noble Baroness, Lady Seear, on the last occasion.

However, one has to face the fact that some considerable increase in probation staff would be necessary in the immediate future. I am not expecting the noble Earl to say that the necessary money will be forthcoming and that all will be well. All I can ask of the noble Earl today—and this is not my last word on the matter because, if I am spared, I shall return to it again and again—is to give us an idea about the guidelines being issued to the probation service.

Noble Lords may or may not have it in their minds, but under the 1991 Act the probation service has a responsibility for supervising—and I repeat the word "supervising"—those ex-prisoners who have served more than a year in prison since the end of 1992. Of course, that is not a large proportion of prisoners, but it is obviously a large number of them. The question is whether the Government are ready to give some guidance to those people. Whatever the Government do in the way of guidance, I am bound to say that not an awful lot can be achieved if that very overworked service is not given more resources.

When I raised the matter on previous occasions, the Government were very forthcoming in describing the wonderful things that they believe are being done. However, I am afraid that they are living in a fool's paradise if they believe that is so. I know that the noble Earl is a very busy man, but if I had a few moments with him I could introduce him to a few ex-prisoners who would tell him a very different story. But, leaving that aside, I am only asking today whether the Government can throw any light on the guidelines which they are now issuing to the probation service as regards not only supervision but also the help that is being given to ex-prisoners who are seeking employment or accommodation. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I should like to support in a few words the amendment of my old noble friend Lord Longford. With high levels of unemployment, the re-employment of people who have paid a penalty, so to speak, becomes increasingly difficult whether or not they have reformed. Much work is being done in that connection. For example, I am president of an organisation called NACRO which undertakes a good deal of that work, and there are two or three other organisations carrying out similar tasks.

I should like to feel absolutely certain that the new economies which the Government are finding in almost every direction—and about which we are complaining day after day—will not extend to reducing the limited amount of help which exists at present for ex-prisoners. Some of those people will never be better; but many of them are much like us and badly need help.

The Marquess of Hertford

My Lords, I should like briefly to support the noble Earl's amendment with the simple thought that it can sometimes be very much cheaper to keep someone out of prison than to keep them incarcerated. That is putting the matter at its lowest level, which is purely financial.

Earl Ferrers

My Lords, the noble Earl's interest in the resettlement of prisoners is well known. He recently tabled an Unstarred Question on the subject and moved the same amendment last month in Committee. At that stage, my noble and learned friend Lord Fraser explained why we could not accept the amendment. I am bound to give the noble Earl the same answer today. However, I know that he did not expect me to say that it would be acceptable.

The prison and probation services already give high priority to resettlement. Preparation for release starts from the beginning of imprisonment through initiatives such as sentence planning, personal officer schemes and a range of specific programmes, including inmate development courses, pre-release courses and job clubs.

The noble Earl has often spoken highly of the resettlement establishments. I can assure him that the prison service is committed to extending the resettlement concept and is proposing to establish small units in establishments which are best placed to allow maximum advantage of work placement and closeness to home. After release, advice and assistance are provided by the probation service to offenders whom it supervises in the community.

Bach probation service is required to establish a local offender accommodation forum. That forum is expected to produce an area strategy for offender accommodation, to assess demand for such accommodation and the extent to which it is being met, and to arrange for homeless offenders to be referred to voluntary sector accommodation schemes in the area.

The noble Earl asked about guidance for the probation service. I can tell him that the Home Office and the Association of Chief Officers of Probation recently issued joint guidance aimed at improving the employment prospects of offenders under probation supervision. Each probation service is expected to develop an area employment policy, to identify the extent of local unemployment, how it can be addressed and the ways in which co-operation with other probation areas and other organisations should take place in order to improve the employment prospects of offenders. I shall ensure that a copy of that guidance is placed in the Library of the House.

The noble Earl may also be aware that the national standards for the probation service are currently being revised and will be circulated to a wide range of organisations for comment in the near future. A copy of that revised draft will also be placed in the Library.

As the noble Earl knows, the probation service works closely with the voluntary sector on both accommodation and employment issues through two schemes. The Home Office's probation accommodation grant scheme helps to provide supported accommodation for homeless offenders and the supervision grants scheme provides grants to support non-residential projects for those on bail and convicted offenders: many of those projects provide training and employment skills.

I hope I have made it clear that the Government share the noble Earl's anxiety about resettlement. However, I do not believe that the statutory requirement proposed is necessary or indeed appropriate.

Supervision in the community following release from custody has three main objectives. It is intended to protect the public, to prevent re-offending and to help offenders to resettle successfully in the community. Supervision needs to be adapted carefully to the individual circumstances of the offender and probation officers must be allowed to exercise their professional judgment in planning what that supervision should contain.

The amendment also seeks to impose advice and assistance on offenders who are not subject to statutory supervision. The probation rules in England and Wales already provide for advice and assistance to be given to such offenders if they so wish. In practice, voluntary supervision often means advice and assistance, again with practical difficulties, including accommodation and employment.

I hope that the noble Earl will accept that we are not poles apart on the issue. We agree about the importance of accommodation and employment. That is why both the prison and probation services are already devoting so much attention to them. But flexibility must exist to enable a programme of supervision in the community to be adapted to fit the individual circumstances; of the particular offender. By giving undue emphasis to one element of supervision, the amendment may well inhibit that flexibility.

The Earl of Longford

My Lords, it is only fair to say that the noble Earl made many encouraging remarks in the course of his reply. As time goes on, I can only hope, whether it be with this Government—or indeed, as is more likely, under another one—that advances will be made. At present, such fine words are not in fact mirrored by deeds, as any prisoner will tell you if you happen to have time to meet him.

However, the Minister made one comment of great importance which I am bound to say I have not fully appreciated. He said that under the idea of supervision is the idea of trying to help the offender. I do not believe that that is generally understood, but it is a most important point. I believe that I may be able to make use of that in the future. But, at the present time, I am bound to say that the probation service only receives £40 million by way of resources to assist it in helping prisoners, while the total prison service budget is. £1,400 million. All the fine words in the world, I am afraid, will not cure this problem or deal with it effectively until more resources are available. But at the moment I am grateful to the noble Earl for his concern. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 146:

After Clause 140, insert the following new clause:

("Creation of an offence of racially motivated violence

.—(1) A person shall be guilty of an offence of—

1. (a) racially motivated manslaughter,
2. (b) racially motivated grievous bodily harm,
3. (c) racially motivated wounding with intent,
4. (d) racially motivated common assault occasioning actual bodily harm, or
5. (e) racially motivated common assault

if, with racial motivation he commits manslaughter, grievous bodily harm, wounding with intent, assault occasioning actual bodily harm, or common assault respectively.

(2) In this section "racial motivation" shall mean motivation on the grounds of colour, race, nationality (including citizenship) or ethnic or national origins.

(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding five years in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault, assault occasioning actual bodily harm, or assault occasioning grievous bodily harm respectively.").

The noble Lord said: My Lords, I made the case for this amendment in Committee. There is a rising tide of racism in Europe. In Britain racially motivated violence is prevalent. I can do no better on Report than quote paragraph 75 of the recent report of the Home Affairs Committee on racial attacks and harassment, which states: In recent months there have been a number of widely-reported incidents of racially-motivated violence. In September 1993, a 17 year-old Asian youth, Quaddus Ali, was 'nearly beaten to death' in east London, and remained in a coma for a number of weeks. In June 1993 a black man was assaulted by ten white men who broke into his flat in Birmingham The Observer has reported an upsurge of racial violence in east London during the past six months, culminating in an attack in February 1994 on a 19 year-old Asian youth by 20 to 30 white men which is being treated by the police as attempted murder. There have also been racially-motivated murders, such as those of Stephen Lawrence and Fiaz Mirza. These violent assaults are tragic and sickening; they also fuel an atmosphere of fear and anger amongst the ethnic minority community as a whole".

The noble Earl will not dispute—I recognise that he did not do so in Committee—that racial violence is prevalent. Nor did he, or would he, dispute that it is a great evil. I paid respect yesterday, in the context of the amendments put forward concerning gypsies, to the liberal intellect and instincts of the noble Earl. The issue, however, as it emerged in our discussions in Committee, was whether society, through the law, should signal its abhorrence of racial violence by creating distinct offences of violence committed on racial grounds. The Government, through the noble Earl, argued—if I may summarise—that all violence is to be abhorred, so racially motivated violence should not constitute a distinct offence as that would be offensive to the victims of non-racially motivated violence.

I respectfully suggest that that does not begin to measure up to the gravity of the social evil we face. We are a multiracial society. We aspire to be an open and tolerant society. The justification for distinct offences is that the victim of violence is selected on grounds of race or colour. The attack is on a member, or members, of a group precisely because they belong to that group. The attack is, and must be, intended to have effects far beyond the immediate victim. It is intended to terrorise the group of which the victim of the attack is a member.

Attacks within the general community are made on the weak, on the vulnerable, on old ladies and on the disabled. There is no issue about that. Such attacks are evil and deplorable. We all agree on that. Let us therefore put that to one side. All crime is likely to be aimed at those who, to a greater or lesser extent, are perceived to be unlikely successfully to defend themselves. However, the burden of the argument in support of the amendment is that racially motivated violence is characteristically distinct. It involves a deliberate selection of victims on the basis of the accident of their birth or their colour. These offences must be gravely socially divisive. The rationale of their commission is that the victims are not entitled to equal rights or to equal citizenship; that they deserve lesser, violent treatment; that they should be pushed to the margins of society.

The point of principle with which I am happy to engage is that racially motivated violence is distinctly identifiable and socially corrosive. It is in a class of its own. The noble Earl, in Committee, said: If, for example, a black person and a white person were to be victims of similar assaults I would question whether it would be right or even equitable for the assailant of the white person to get a lesser sentence simply because his victim was a white person and not a black person".

The noble Earl will forgive me if, having paid tribute to his liberal instincts, I say that I was disappointed when I heard him say that and disappointed when I read it set out for all to read hereafter in Hansard. With respect I would suggest to him that he misses the key point. A white man may attack a black man, or a black man may attack a white man, without any racial motivation whatever in either case. The courts will then impose whatever penalty fits the crime in the circumstances of either case. But if both attacks were racially motivated, then the offences are characteristic-ally different because the victim in each case became a target for the reason of his race or colour. Nothing could be more destructive of the principles of a multiracial, plural society and the values of a liberal democracy.

The whole of our law on discrimination is based on a recognition that particular groups require special protection because of their race, their colour or their gender. The purpose of our anti-discrimination laws, which no one calls in question, is not to confer special privileges on particular groups but to ensure that those groups most in need of protection by the law receive that protection. The purpose is to ensure that they enjoy equality of legal protection. In setting themselves against these amendments—I invite the noble Earl to think again —the Government reject the advice of the Home Affairs Select Committee, the Council of Churches, the Board of Deputies of British Jews, the Commission for Racial Equality, the Law Society, the Bar Council and other bodies. Their voices have been powerfully reinforced by the recent observations, reported in The Voice, of the Metropolitan Police Commissioner Sir Paul Condon. It is really difficult to think of a more eminent and authoritative voice which the Government should heed.

The Metropolitan Police Commissioner said that the introduction of new laws to make racial violence and harassment specific criminal offences would "help rather than hinder". He added: It is a very important symbolic thing to do. It is society saying we will not tolerate racial harassment. We condemn it to the point that we have created a new piece of legislation".

I have to say, would that the Government were equally aware. Will the noble Earl not listen to the most senior police officer in our country?

Finally, I move from the issue of principle to the one other practical objection to the constitution of such new offences: the alleged difficulties of proving racial motivation. The law is perfectly familiar with the task of ascertaining intention or motivation. All offences in our law, other than offences of strict responsibility, require the court or the jury to determine whether the necessary mental element is present. That is what many, and probably most, criminal trials are ultimately concerned with.

These new offences would be charged only when the prosecuting authorities thought that there was a better than evens prospect of conviction, namely, where the evidence of racial motivation is cogent. I have no doubt that a jury is well capable of convicting of ordinary manslaughter and acquitting of racially motivated manslaughter if the racial motivation is not proved beyond reasonable doubt to the satisfaction of the jury. To argue the contrary betrays a lack of confidence in the jury system and a lack of confidence in the sound common sense of the British jury which serves our country so well.

I said yesterday, as I have already said, that in many areas I respect the noble Earl's liberalism. But I desire now to call the attention of the House to the recent report of the Home Affairs Select Committee, and in particular to paragraphs 82 and 83. Paragraph 82 reads: Believing as we do that racially motivated violence is growing, that more positive action must be taken to stop it and that such motivation, provided that it is properly proved, should lead to an increased sentence, we recommend the creation of a new offence of racially motivated violence. We further recommend:

1. (i) that whenever there is a count or charge of violent assault and there is sufficient evidence that the violence was occasioned on the grounds of colour, race, nationality, or ethnic or national origins, a separate count should be added to the indictment and the jury or magistrates should be invited to decide on the alternative: which offence, common assault, actual bodily harm, wounding with intent, grievous bodily harm or manslaughter, or racially motivated common assault, actual bodily harm, wounding with intent, grievous bodily harm or manslaughter, if any, has been made out;
2. (ii) that if the offence of racial violence is proved an additional and consecutive sentence should be imposed on the offender of up to five years' imprisonment for the racial element in that offence".

Paragraph 83 reads: In order to effect this recommendation a majority of us tabled a new clause to the Criminal Justice and Public Order Bill during its Report stage. In debate the Minister, Mr. Lloyd, deployed the same arguments against a new offence of racial violence as he had during his earlier oral evidence. On a Division the new clause was defeated by 283 votes to 254".

In the other place that was obviously a tight vote. The paragraph continues: Nevertheless we recommend that the Government should reconsider its opposition to an offence of racially motivated violence. We further recommend that such an offence be introduced as an amendment to the Criminal Justice and Public Order Bill".

I, for my part, would endorse that recommendation. I respectfully submit that this is an issue on which, having regard to the tight vote in the other place, this House could properly resolve to give a lead. Many other people and many organisations are of that view. I beg to move.

3.30 p.m.

Noble Lords

My Lords—

Noble Lords

Lord Boyd-Carpenter!

Earl Ferrers

My Lords, perhaps I may intervene. It may be easier if we hear one noble Lord at a time. I am sure that there will be time for all three noble Lords to speak, but if all three stand their ground vociferously saying "My Lords" we shall never get anywhere. I propose, at your Lordships' suggestion, that my noble friend Lord Boyd-Carpenter should speak and then my noble friend Lord Campbell. Perhaps we could then move on.

Lord Boyd-Carpenter

My Lords, I am obliged to my noble friend. I shall not detain your Lordships for more than a few moments.

I believe that all Members of the House understand the feelings which lie behind the amendment and sympathise with the sentiments of the noble Lord who has just spoken. However, it does not follow that it is conclusive that this House should, as he recommends, reverse the decision of another place. Nor does the amendment necessarily deal with the full merits of the matter.

This is a rather peculiar proposal. It is proposed that where racial motivation is demonstrated in a particular case in which there are other, perhaps several other, serious charges, an additional sentence over and above that earned for the basic offence shall be imposed. That would introduce a complicated provision into our sentencing system.

Suppose that the court dealing with the matter feels that a sentence of x years is appropriate. Then, if it finds separately that there is racial motivation, as I understand the amendment, a maximum of five years is automatically added to what was otherwise thought to be the appropriate sentence. That seems to undermine to a considerable extent the discretionary position of the court which is dealing with the matter. Those of us who have had some experience of these matters know how difficult it is to decide on an appropriate sentence. There are a great many different factors which the judge has to take into account and it is far from easy to decide on an appropriate sentence. If one then introduces an automatic addition for a separate aspect of the matter one will make the job of sentencing one of great difficulty.

Lord Irvine of Lairg

My Lords, I am grateful to the noble Lord for giving way so that I may clarify the position. The noble Lord assumes that the maximum sentence available to the court under the amendment would reflect the sentence imposed by the court. I invite him to look at the proposed new clause, and in particular subsection (3), which reads: A person guilty of an offence under this section is liable"— I emphasise the word "liable"— on conviction on indictment to imprisonment for a term not exceeding five years"— what he receives up to that maximum is entirely a matter for the judge—

in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault", and so on.

Therefore, there is a liability to a maximum sentence. The judge has discretion and the additional sentence could be as little as a day. Does the noble Lord not appreciate that?

Lord Boyd-Carpenter

My Lords, I do not think that the noble Lord and I differ greatly on this issue. I believe that he accepts, as I indicated to the House, that a judge trying a case where there is an allegation of racism will first have to decide on the appropriate penalty for that particular offence, and would then find that there was imposed the possibility of automatically adding up to five years to that sentence. That appears to introduce awkwardness and difficulty into the whole sentencing procedure. Obviously, when a judge tries such a case, if there is a racial element the judge will undoubtedly bear that in mind as he will all the circumstances of the case including the degree of violence, the degree of provocation and all the other factors. But to impose this additional factor, having decided on a sentence which is appropriate for the offence, surely is to make a nonsense of our sentencing system. It was no doubt for that reason that another place, in my view very properly, rejected the proposal.

Lord Campbell of Alloway

My Lords, I accept, of course, without qualification the interpretation of the amendment by the noble Lord, Lord Irvine of Lairg. I disagree with my noble friend Lord Boyd-Carpenter that it is wrong for an additional sentence to be imposed. However, the amendment, although well intended and in a sense well supported by bodies outside your Lordships' House, is not well conceived. I oppose it.

I do not believe that any emotive speech on such a serious situation, with deplorable examples, serves any purpose in helping your Lordships to find the appropriate resolution. I wish to be brief and to speak in terms of principle. First, as I see it—it is only a personal opinion—I believe that it is wrong in principle to create a racially motivated offence. As I see it, that is a matter to be taken into account in sentencing, an aggravation giving rise to an additional sentence, and, according to extant practice, specified as such certainly by the recorders and, I think, by the judges. If the extant practice stemmed from the sentencing of Mr. Justice Salmon (as he then was) in the Notting Hill case at the Old Bailey, in which he imposed deterrent sentences, so be it. That is the right way in which to approach the problem. I accept that there are two ways. But that, I suggest, is the right way. Those sentences and the precedent which arose from them had a most salutary effect.

Considering the amendment—I do not deal with details—one does not surely have to reach for a dictionary or fumble through a statute to define racial motivation. Every magistrate, every judge, every one of your Lordships, everybody in the country knows what it is. We all know what it is. It is utterly abhorrent. And surely there is no need to define a limit to the duration of the additional sentence in aggravation of the offence. It is a matter for the judiciary.

Surely, in a multiracial society, where we are all subjects of the Queen, it is wholly inappropriate to create two classes of offences: one, the offence on the statute book; the other, where it is racially motivated. Let us be practical for a moment and not idealistic. That could well have a most undesirable backlash consequence, envisaged by the right reverend Prelate the Bishop of St. Albans, albeit in another context some time ago. If the racially motivated offence were charged, and if the accused, as he may, is prepared formally to admit that he committed the offence but not with racial motivation, what happens? He pleads not guilty. The trial then proceeds on the issue of racial motivation in our country. May the good Lord preserve us from such an unacceptable and potentially volatile situation. Surely, that is no way in which to signal our abhorrence of racially motivated violence.

Lord Avebury

My Lords, in cases where there is doubt as to whether racial motivation is involved, both charges would be preferred against the defendant. If the proof is not forthcoming that racial motivation was involved, the prosecution would fall back on the ordinary charge of murder or manslaughter as the case may be.

Lord Campbell of Alloway

My Lords, with respect to the noble Lord I am afraid that my experience leads me to differ from him. I do not wish to take up the time of the House. The noble Lord may be right, but I do not believe that he is.

Finally, perhaps I may say this. The analogy with racial discrimination is far too far fetched to be credible. For those reasons, I oppose the amendment.

3.45 p.m.

Lord Beloff

My Lords, although a non-lawyer, I venture to enter on this dangerous field to explain why, with some reluctance, I have come round to the view that the creation of this new offence, as proposed by the noble Lord, Lord Irvine, is desirable.

In the course of the past few days I have been attending an international academic conference on the rise of racial violence, and its accompanying propaganda, not merely in this country but in the United States and in much of Europe. It is, I think, clear that we cannot dissociate the local circumstances, referred to in the report of the committee of another place, and, alas, well known to us from the press, from what is going on in other countries. A great deal of propaganda is being fed to our young, partly from American sources where the expression of such sentiments is protected by the first amendment to the American constitution, but also from Europe. Our young people are being asked to repudiate views which most of us held at the end of the last war: that the defeat of Nazism had put an end to one form of human depravity, and for good. We can no longer take that for granted. Therefore, whatever the technical problems that lawyers may find in respect of sentencing, the mere absence of such a provision from the statute book could be regarded as acquiescence in the normality (I put it no higher) of the expression of views which lead to, and indeed encourage, racial violence.

I regret that it does not include violence against minorities singled out for religious reasons, although I understand that an amendment which will be before your Lordships later deals with that point. But we members of the Jewish community realise that in this our faith is bound up with that of other minorities, even if they are referred to as "ethnic" rather than religious.

One of the moving stories which came from a member of the conference, who represents an important ethnic minority in the borough of Hackney, related to an attack by three youths upon a Jewish schoolboy in Stoke Newington. He was, no doubt, easily recognisable by his dress. He was rescued from serious bodily harm by the fortunate presence of a rather large young black man from whom the three white thugs rapidly retreated.

It should not be necessary for that to happen on our streets and I and, I am sure, the noble Lord, Lord Irvine, would not pretend that merely putting something on the statute book will be enough to prevent it. Nevertheless, a committee of another place looked into the matter in great detail. If it believes—as some of us also believe —that there would at any rate now be a marker, a declaration, that in this country the repudiation of racial prejudice leading to physical violence is a part of our statute law as well as of our national ethos, it will have been well worth the House accepting the noble Lord's amendment, as I dearly hope it will.

Baroness Seear

My Lords, like the noble Lord, Lord Beloff, I had doubts about the racially motivated attack some months ago. In fact, on a television programme I said that I had my doubts because I thought that it might lead to cases being lost on the grounds that one could not prove the racial motivation and therefore the whole case would fall.

However, like the noble Lord, Lord Beloff, I have changed my mind. It was made clear to me—I know that the noble Lord, Lord Campbell, questions this—that if a racially motivated attack were being tried and there were doubts about the racial motivation, nevertheless the case could be won for the bodily harm or whatever it was which was associated with the racial discrimination. So one avoids the obviously undesirable situation in which what was a racially motivated attack led to harm but the offender got off because the racial motivation had not been proved. I understand that that is how the law stands at present but one can get a conviction. That is why I am doubtful about the amendment.

However, as the noble Lord, Lord Beloff, said, we have to put down a marker. The increase in racial attacks over the past year is well documented and extremely alarming, in view of what is going on in continental Europe. We are a part of continental Europe, whether or not some Members of the House like it. The evil doctrines which are spreading fast in other countries are also evident here.

I make a special plea that the amendment should be passed today. Since it has reached the Marshalled List and is before the House, it would be sad if it went out that the House of Lords had voted against making a special offence of racially motivated violence. It would be a marker that I am sure none of us would want to put up. And it would be put up if the amendment were defeated. Even if the amendment would be difficult to implement, as many of us recognise, it is important symbolically at this time, when the dangers are becoming more and more apparent, that we show where we stand on this vital matter.

Lord Ackner

My Lords, I respectfully submit that it would be wrong for your Lordships to think that the amendment proposed will make the life of the sentencer any more difficult than it is at the moment. The judge has to decide what is the right sentence for the crime or crimes which have been committed. It is proposed that the judge reaches his decision on the basis of the particular act of violence or crime of violence without taking into account, if it can be established, the racial motivation. For example, let that sentence be 18 months. The judge is then satisfied that the serious aggravating factor of racial motivation has been established. He adds to that sentence of 18 months such further sentence as he thinks appropriate, up to a maximum of five years. Having had considerable experience in sentencing from recordership upwards and having presided over sentencing conferences for many years, I should have thought that this was one of the least of the problems.

Without the amendment, and given racial harassment, the judge has to go through that process anyhow.

The only difference is that the accused has a better right of appeal, if he is minded to exercise it, because he can point out to the Court of Appeal, Criminal Division, "My seven years was made up of two years for the ordinary assault and five years for the racial motivation. The five years is excessive and therefore it should be reduced". The division, in my respectful submission, causes no complication at all.

Taking up a point made by the noble Lord, Lord Campbell, if the accused says that he is prepared to plead guilty to an assault but not to a racially motivated assault, then there is a trial. Again, then; is no complication about that. The issue will be the motive with which he committed the crime of violence. At present, if he pleads guilty to the crime of violence and the prosecution says, "A major aggravating factor in this crime was the racial motivation", and the defence says, "Nonsense. We don't accept that for one moment", that issue has to be determined not by a judge and jury, which is the most satisfactory process but, since he has pleaded guilty, by the judge alone. It proceeds just like any other trial on the basis of the prosecution calling the witnesses to support the allegation of racial motivation. The defence has to produce its evidence, no doubt in particular the evidence of the accused person. Then the judge has to determine the point.

So there is no sentencing problem at: all. That seems to me to enable your Lordships to proceed on the basis of the extent to which noble Lords are persuaded by what appears to be a strong body of outside opinion wishing to emphasise that this type of behaviour must be highlighted and treated as being particularly evil.

4 p.m.

Lord Renton

My Lords, so far I do not think that we have fully addressed ourselves to the present burden of proof upon the prosecution. In our criminal law the prosecution has to prove that the offence was committed with a criminal intent. It does not have to prove motive, although those of us who have been involved in the administration of the criminal law know that there nearly always is a motive of one kind or another. In Northern Ireland, alas, there is very often a political motive—

Lord Hailsham of Saint Marylebone

Or a religious one.

Lord Renton

Or a religious one, as my noble and learned friend says. Alas, sometimes there is; a commercial motive.

To introduce a requirement that the prosecution, in addition to proving the fact of the offence and the intent of it, also has to prove motive adds to the burden upon the prosecution. And paradoxically, as the noble Lord, Lord Irvine of Lairg, may notice, that would lead to a number of acquittals which you would not expect.

The noble and learned Lord, Lord Ackner, confined his remarks to the question of sentence. We do not need the creation of the new offence in order to enable the court to consider the motive when sentencing the accused. Indeed, there is another amendment on the Marshalled List, Amendment No. 146B. I do not wish to prejudice any noble Lord's mind in advance of consideration of that amendment, much less my own, but if we are to have that written into the law it would be done much better in my opinion by Amendment No. 146B. With deep respect to the purpose of the noble Lord, Lord Irvine, with which I believe all noble Lords agree, by the agreement of all parties we have our anti-discrimination legislation. With the help of the law we have tried to protect the various races who are now part of our country. But I really do fear that if the noble Lord's amendment were to be passed it would be self-defeating.

Lord Monson

My Lords, the noble Earl, Lord Ferrers, was quite right to resist this amendment the last time round. I hope that he will stick to his guns on this occasion. The noble Lord, Lord Irvine of Lairg, cited some terrible examples of attacks upon individuals who happen to be members of racial minorities. But if and when the perpetrators are caught, very severe sentences are already available to the courts, and quite rightly so. So far as I am aware, no member of the judiciary has complained that the present maximum penalties are inadequate. Surely the important thing is to catch the perpetrators. Unless they are caught, no sentence of any sort can be imposed. If the tightly knit communities, from which the perpetrators tend to come, feel, rightly or wrongly, that the law has been slanted in favour of the incomers, as it were, they will be much less likely to shop the perpetrators to the police than would otherwise be the case.

The Earl of Onslow

My Lords, the noble Baroness, Lady Seear, has brought me to my feet, and not for the first time. I suddenly imagine myself rather drunk in a public house, aged 20.I come out of that public house; I see the noble Baroness, Lady Seear; and I suddenly have a passionate hatred of Liberal Peeresses. So I go and thump the noble Baroness, Lady Seear. I believe that everyone would regard that as a crime of the utmost heinousness for which I should be dealt the most serious possible sentence. Alternatively, I come out and I thump (this is 20 years ago) an 18 year-old black man and I say: "I hate black men". That would be rightly regarded as heinous. But I suggest to noble Lords that it is no less and no more heinous, and is if anything less heinous, than thumping the noble Baroness, Lady Seear. Surely it is whom you thump and under what circumstances, irrespective of the colour of their skin, that matters. That is what should motivate the issue.

I do not in any way stand in protection of anyone who wants to thump someone else. It is an unattractive habit. It is especially unattractive to thump people because of their colour or religion, or if it is the noble Baroness, Lady Seear. But it is better to leave out that extra motivation, because I want the noble Baroness, Lady Seear, to be treated with greater respect than 18 year-olds, whatever the colour of their skin.

Baroness Seear

My Lords, I know that this is Report stage and I am therefore not supposed to reply. I think, however, that I would have been able to deal with that matter myself. Perhaps I may make a more serious point. In attacking me or any woman Peer, you would not be attacking—at least, I think not—a whole community. When you attack a black person you are seen as attacking the whole black community. That is a very important difference.

Lord Renfrew of Kaimsthorn

My Lords, I support the noble Lord, Lord Irvine, in this matter. In earlier discussions my noble friend the Minister made the point —he made it very effectively in introducing Clause 141 on harassment, alarm or distress—that in an ideal world we would not be highlighting racial distinctions. Violence is violence; it is to be abhorred in any circumstances. To some extent that was the point my noble friend Lord Onslow was making. Indeed, it was a point made by the most reverend Primate the Archbishop of York on Thursday, 16th June when he said: What we want is a society in which race does not matter, a racially blind society".—[Official Report, 16/6/94; col. 1923.] The society we have is a very long way from the one to which the most reverend Primate would aspire. In my own view—and I take the point the noble Baroness, Lady Seear, made a moment ago—it is the circumstance that matters. There is a whole series of racial offences that are committed, and many of them are committed in what can only be described as an organised way.

It would be unusual indeed if there were a conspiracy of Peers to assault Liberal Baronesses, just as in the same way —and I do not want to be frivolous about these matters—it would be unusual if there were a conspiracy to assault persons in wheelchairs because they are in wheelchairs; or even a conspiracy to assault old ladies and rob them of their handbags because they are old ladies. Such offences of violence occur because they are easy to pull off, easy to perpetrate. The unpleasant offences of racial motivation that we are now discussing are of a different nature. The point was made by the noble Lord, Lord Irvine, but it is one that I do not believe was fully taken by my noble friend or by the most reverend Primate. We are talking about offences which arise from a coherent philosophy—an obnoxious philosophy—directed towards a group of people in our society, not just towards vulnerable individuals who happen to pass by.

My noble friend Lord Renton mentioned—I should like to draw attention to this procedural point—that following this amendment there will be Amendment No. 146B^✶, which is on the offence of selling confidential financial information. Then we shall return to Amendment No. 146B with its rubric, Racial motivation to be an aggravating factor in sentencing". That is the point the noble Lord, Lord Renton, was making. I do not wish to speak to that amendment now. We shall have the opportunity of doing so later. I simply want to draw your Lordships' attention to the fact that our debate on this series of matters will be interrupted, for procedural reasons of some complication, by a very different matter. I would not want noble Lords to feel that, in the unfortunate circumstance that the present amendment should be lost on Division, the entire issue has gone by the board for the day. However, I am happy to support this amendment. It relates to a matter of paramount importance and shows that we in this House and in this Parliament recognise the serious state to which we have come. I support the amendment warmly.

Lord Hailsham of Saint Marylebone

My Lords, I wonder if I may say a fairly brief word. I believe that the amendment is fatally flawed intellectually. I do not think that there is any difference among Members of the House about the vile nature of inter-communal hatred and motivation. But the definition of crimes is normally, should usually be, and might universally be, confined to two different elements. There is what you do and there is the intention with which you do it. Intention is not the same as motive. It is very important to realise how different the two are. The intention is part of the definition of the crime. The motive is usually something outside the definition which is uniquely relevant to sentence when it has been discovered.

I deplore racial or communal motivation of any kind as much as any Member of this House. But I do not think that it is uniquely horrible. I believe that there are other crimes which are every bit as bad as racially motivated ones. For instance, there are religiously motivated crimes. I can remember very clearly when I was a Member of another place and one of the discrimination Bills was under discussion that I tried to add discrimination on grounds of religion to the racial discrimination which was then under discussion. I was ruled out of order by the chairman, who said that it was outside the scope of the Bill. I pointed out that, if I wanted to discriminate against members of the Jewish religion, one could very easily do something about bacon without attacking the race at all.

The fact is that all forms of cultural discrimination are equally bad. This morning's paper carried the news of a Protestant who had been murdered by a Catholic in Northern Ireland. The crime was not racially motivated because they were members of the same ethnic community and the same national community. Equally, it was committed in revenge for an earlier murder of a Roman Catholic by a Protestant. I have known cases of people convicted of wounding with intent—for instance, in the course of a rape of a very small child by a sexually motivated man, or in the course of violence against a young woman for refusing her sexual favours. I regard that as every bit as bad as doing violence because the perpetrators hate people of a particular colour. It may be less or more rational, whichever way one looks at it. On the other hand, the crimes are serious.

I agree with an observation that came from my noble friend Lord Renton, who said that if this amendment were to be passed, it would erect an extra barrier against conviction because the motivation has to be proved beyond reasonable doubt to be one of the motives described in subsection (2) of the proposed amendment; and that would lead to a number of unjustified acquittals. You may say, as was said by the noble Lord, Lord Irvine of Lairg, that you do not trust the jury system. I do not trust juries always to convict when they ought to do so. I have known too many perverse acquittals in my life. If the House passes this amendment, it will in fact erect another barrier against conviction for racially motivated crime.

The truth is that motivation is a relevant factor in sentence. That was recognised by my noble and learned friend Lord Ackner, although I thought that thereafter he addressed the wrong point. During the course of a prosecution, words would be used to describe the motivation of the crime, which might be a more or less serious physical assault—a wounding with intent or manslaughter at the top of the scale and common assault at the bottom of the scale. There would be the evidence which the prosecution would be bound to lead and it would be in the mind of any right-minded judge whom I have ever known an aggravating offence which would add to the sentence employed after the jury had given the inevitable verdict. No chance would be given to cop out. There would be a number of disagreements and perverse acquittals, no doubt. There always are in such cases. But the judge would have in front of him the evidence on which to assess the gravity of a particular offence and, if he were a right-minded judge, it would be an aggravating factor that the offence had in it an element of motivation on racial or communal grounds.

I cannot forget the words, of the Pope when he went to Drogheda in the Republic of Ireland. He administered the Eucharist to over 1 million persons and in the course of that service he said: "Murder is murder is murder". That was meant to condemn murders of Protestants by Catholics or of Catholics by Protestants or of Jews by Christians or of Moslems by Jews or vice versa. It was meant to condemn murder as such. In my book, wounding with intent is wounding with intent and the motivation is a matter for sentence and degree in which the function of the judiciary is involved, as distinct from the function of the jury.

That is a fault which is absolutely fundamental to the amendment. It confuses definition with culpability.

4.15 p.m.

Lord Jakobovits

My Lords, after the last contribution to our debate I rise with particular reluctance because I hate to cross swords with so esteemed a friend, and in many ways a mentor, as the noble and learned Lord, Lord Hailsham. But I am afraid that I am far from agreeing that the arguments are flawed, as he claimed. One of the arguments which have not so far been emphasised sufficiently is that not only is the heinousness of the offence in a special category and not only has the offence perhaps wreaked more havoc in human history, especially modem human history, than any other single offence, but over and above the difference in degree, it is different in kind from other offences of violence.

First, it is based on a denial of human equality. Murder is not normally based on that. To say that there are human beings who are not created in the image of God and who are no longer entitled equally with ourselves because they have been born with a different label, is a kind of offence that drives a wedge into humanity that cannot be tolerated.

Moreover, we know from recent experience that racially motivated violence has effects different from those of any other form of violence. I lived in Germany when Hitler came to power and was among those who suffered racial discrimination and the constant threat of violence. Hitler used racial discrimination to climb to power. It was the basest instincts to which he appealed. He could not have done it through any other crime. As a result, millions of Germans—a decent people, an intelligent and highly civilised people—were turned into mass murderers, either perpetrating or conniving in mass murder. No other crime could have achieved that. No other offence could have caught on and infected an entire nation with such indescribable consequences; only the offence of degrading human beings by arguing that some are worth more than others could do that. Some, such as the Teutonic race, have to be protected at all costs; others, such as Jews and gypsies, can be shoved into the oven.

Lord Hailsham of Saint Marylebone

My Lords, perhaps I may say, if the noble Lord will allow me, that for political reasons Stalin did the same thing against classes of people.

Lord Jakobovits

My Lords, that is quite true and I can use the same argument to condemn him. However, he did not do it because people were born under a certain star or under a certain label; he did it because they had ideas that he opposed and he was frightened that if those ideas caught on it would mean his downfall. Therefore he had some rational argument, whereas racial discrimination and violence has no reason whatever. It is a prejudice that is implanted by propaganda and can lead to the most dangerous consequences.

I am therefore delighted that the amendment was moved with such force and supported with such irrepressible logic as we witnessed here this afternoon. If we strike a blow at one of the major evils of modern society, which is the evil of degrading whole groups of human beings because they are born differently from others, then we shall forever be looked up to as having contributed to a better society and a safer world.

Lord Lowry

My Lords, no one could challenge the purity of the motive behind the amendment. Nearly everybody must feel a temptation to be associated with a mark of strong disapprobation of racialism. Cogent points have been made on either side. My real difficulty with the amendment is this. The amendment contains a list of offences and the proposal is that a certain motivation should make those offences more serious in a formal way by proposing an addition to the sentence. I ask myself what other motivations there may be. There are many in number that one could add to racialism.

Let us say that racism or several other motivations are the trigger of a crime. There must be several other offences besides those listed in the amendment that we should like to include under the same principle. Because I foresee the most enormous difficulty in drawing up the list of offences and the motivations which should be matched to some of them, I revert to what has been the tradition. An offence is committed; guilt is either admitted or proved; the judge must then take into account the circumstances of the offence —including, in many cases, the motivation—and impose an appropriate sentence. If there are offences—they have been discovered from time to time—where the statutory punishment is considered too light, then a proposal is made and sometimes adopted to increase the maximum penalty. I am not talking about that now; that is an extension of the subject. But that explains my difficulty in accepting an otherwise laudable proposal.

Earl Ferrers

My Lords, we all listened with considerable interest to the intervention of the noble Lord, Lord Jakobovits, when he drew attention to the terrible problems that racial discrimination and motivation can bring. We all know what the noble Lord, Lord Irvine of Lairg, intends by the amendment, and we all respect it. I agree with my noble and learned friend Lord Hailsham that there is no difference between any of us in the House in relation to the vileness of racially motivated offences. It is that matter which the amendment tries to address.

This is the third time on which this amendment has been debated. It was debated in another place and then in Committee in your Lordships' House and now again. The noble Lord, Lord Irvine of Lairg, is persistent if nothing else—and he is a lot else. The Government's position on the amendment has been made clear and I can assure the noble Lord, Lord Monson, that I shall not change my view on that. The noble Lord, Lord Irvine, repeated his amendment and I hope therefore that your Lordships will forgive me if I repeat some of the arguments I put forward at Committee.

Racial motivation can be and often is taken into account by the judge as a seriously aggravating factor. That is the point which the noble and learned Lord, Lord Lowry, was making and indeed the noble and learned Lord, Lord Ackner. At Committee I cited the case of Fiaz Mirza, to which the noble Lord, Lord Irvine, today referred. He was an Asian taxi driver who was murdered by two white passengers. The two murderers received life with a recommendation to serve 22 years, which your Lordships will recognise as a very heavy punishment. The judge rightly recognised the appalling circumstances of that specific case in delivering his sentence.

All violent offences are deplorable and all should be severely punished. But I suggest that it would be inequitable to single out crimes where racial motivation is proved for a specific and greater penalty. I am sure that many victims of assaults which were not racial in nature would find it a difficult concept to accept. At Committee I gave an example which the noble Lord, Lord Irvine, said he found disappointing when I gave it and even more disappointing when he read it. As he reminded us, I gave the example of a black person and a white person who were both knifed. I questioned whether it would be right or even equitable for the assailant of the white person to receive a lesser sentence simply because his motivation was not racial even though the effect of the knifing on the victim was physically identical and just as traumatic. I agree with my noble friend Lord Onslow when he said that he felt that it was the offence which was perpetrated rather than the person against whom the offence was committed which was the important point.

The amendment refers to racially motivated manslaughter, racially motivated grievous bodily harm, racially motivated wounding with intent, and so forth. The amendment ascribes a mental element in all those cases, and I agree with my noble friend Lord Renton that if motivation in a case must be proved, the burden on the prosecution is increased. As my noble and learned friend Lord Hailsham said, it is putting up an extra barrier against conviction and might result in some acquittals where there should be convictions.

There is a world of difference between intent which relates to the desired outcome of the act and motivation which concerns why a person intended to produce that effect. Intent is a matter of daily concern in criminal trials. Motivation would be a new and entirely different element for a court to prove and of which courts have no experience. At Committee I remember saying that a woman may be found dead and her husband found with a knife. It may be proved that the husband murdered the wife. It may be obvious that he intended to kill the woman. Much more difficult to discover is what the motivation was for the killing—whether it was because they had had a row; because she had run off with his money; or because he wanted her insurance policies. The motivation is far more difficult to prove, and that is what the amendment asks the court to include.

The noble Lord also said that a separate offence would be needed because racial attacks are made on members of a group and are intended to affect all members of the group. The noble Baroness, Lady Seear, made the same point, as did my noble friend Lord Renfrew. He said that such attacks were the result of a coherent philosophy against a group of people. That may be so. But we do not need to restrict that to racial attacks. Attacks are made on other people who are being targeted, and groups of people are subject to those attacks putting all members of the group in fear. For example, attacks on women, attacks on homosexuals, attacks on people who are part of a protection racket and attacks on people who are part of a drug baron's empire.

The noble Lord, Lord Irvine, then said that the commissioner of the Metropolitan Police, Mr. Condon, supported this new offence and he asked why the Government do not listen to eminent policemen. The commissioner of the Metropolitan Police is a very eminent policeman and I respect his views; but those views are not shared by the Association of Chief Police Officers, which does not believe that a separate offence is either workable or desirable.

My noble friend Lord Beloff said that support for the amendment was misguided and that we already have an offence of incitement to racial hatred which deals with the expression of Nazi ideas. The amendment of the noble Lord, Lord Irvine, does not deal with propaganda. The Home Affairs Select Committee's report was not unanimous on the need for a racial violence offence. At least four members of the committee opposed it. I would merely stress what I said in Committee. The law provides for a range of penalties and it sets the maximum which can be allowed for any one type of crime. In this kind of case the maximum allowed could well be reached by the fact that the assailant had been racially motivated in his crime. But we do not need more than that.

Not only do I suggest that the new clause would be wrong in principle but it would have curious results. In the case of common assault the offender would face a prison sentence which, if his offence were shown to be racially motivated, could be 10 times greater than is the current maximum penalty for any other form of motivation. For actual bodily harm the sentence could be doubled. I am sure that all noble Lords would agree that those who commit these vicious and abhorrent crimes should be properly punished. The way to achieve that is to make sure that at every stage of the process racial motivation is flagged up, evidence is collected and evidence is put before the courts so that it can then be taken into account as an aggravating factor for sentencing. I suggest to your Lordships that: it would be wrong in principle to legislate in such a way as to create a separate class of violent crime of racial motivation which is worse than all other types, as the clause attempts to do. All classes of violent crime, whatever the motivation, are wrong and are to be condemned. But I think it would be wrong to make it a worse offence to commit a crime just because of the person's race than it would be if the person was a homosexual, an elderly person or a disabled person.

I agree with the forceful argument of the noble and learned Lord, Lord Ackner, who said that he found the amendment unacceptable. He said that in his experience there was no sentencing difficulty over this matter. I agree with him and I hope that your Lordships will not agree to the inclusion of the amendment in the; Bill.

4.30 p.m.

Lord Irvine of Lairg

My Lords, I am encouraged in the strength of the case for the amendment by the support I have received for it from many quarters of the House and, if I may say so, by the weakness of the arguments which have been addressed against it. First, I welcome the support of those who have spoken specifically in its favour. I mention the noble Baroness, Lady Seear. The noble Earl, Lord Onslow, has indicated his enthusiasm on occasions over many years for thumping the noble Baroness. I would simply observe that if the noble Earl were to engage in such a contest it would be very unequal and one in which the thumping in the opposite direction would be likely to exceed that which the law of reasonable self-defence permits. I welcome in particular the informed and eloquent support of the noble Lord, Lord Beloff, the noble Lord, Lord Jakobovits, the noble Lord, Lord Renfrew, and the noble Baroness, Lady Seear.

An early contribution to the debate came from the noble Lord, Lord Boyd-Carpenter. We will not, if we give a signal to the other place by voting in favour of the amendment, be reversing the decision of the other place, as the noble Lord suggested. We will be making a proposal or a suggestion to the other place and we will be giving the moral support of the considered opinion of this House to that very large number of Members of the other place who, before the report of the Home Affairs Select Committee coming down in favour of this offence, were in favour of it. It is not the case, as I sought to demonstrate when intervening in his speech —the noble Lord permitted me to do so—that another automatic block of sentence will be added if the racially motivated offence is proved. That is to confuse the maximum available with the discretion of the judge. The racially motivated offence will have to be proved beyond reasonable doubt to the satisfaction of the jury.

Lord Boyd-Carpenter

My Lords, perhaps I may intervene as the noble Lord referred to me. I made the point—and I stick to it—that we should be reversing the considered decision of another place. We are perfectly entitled to do that but the noble Lord cannot get away from it by saying, "Oh well, there is just a slight difference of opinion". We should be reversing the considered decision of another place.

Lord Irvine of Lairg

My Lords, I do not desire to engage in semantics. It would be right, however, to say that we would be reversing it if our decision automatically bound the other place. We are not reversing it. We are expressing our own judgment. And as we well know, the other place will ultimately have its way. My proposition is that it was such a tight matter in the other place. We now have the report of the Home Affairs Select Committee. We now have the opportunity to influence the other place to think again in a matter in which its previous judgment was tight. I respectfully suggest that that is par excellence where we should feel no inhibition in expressing our own view and we certainly should not think—and it would be vain to think—that if we decided in a particular way that would reverse, in the sense of automatically changing for ever, the decision of the other place.

I was grateful for part of the observations of the noble Lord, Lord Campbell of Alloway, which were to the effect that there would be no difficulty, as he saw it, in identifying racial motivation when one saw it. I agree. There will be a high standard of proof—beyond reasonable doubt. But it is the jury that will have to resolve that.

I would make a separate point to noble Lords who have emphasised that under the current dispensation it is a discretionary factor in sentencing for the judge who sentences to take into account racial motivation. He may gain an appreciation of whether there was racial motivation from the conduct of the trial itself. He may form an impression from being the judge at trial. He may, in addition, form an impression or a judgment from material after the conclusion of the trial which the prosecution draws to the court's attention when the verdict of guilty has been brought in and the matter of sentence is under discussion before the judge. But the advantage of making racially motivated offences is that the defendant in a sense has a better protection because racial motivation will have to be determined beyond reasonable doubt by a jury. It is inconceivable that, if there is an acquittal on a charge of racially motivated manslaughter, the factor of racial motivation could be taken into account when the judge comes to sentence for manslaughter simpliciter, not racially motivated manslaughter.

The noble Lord, Lord Campbell of Alloway, said that one ought to be a realist and not an idealist. I would like to think that to some degree I am an idealist and also without illusions. Quite realistically, a jury is well capable of acquitting of racially motivated manslaughter and convicting of manslaughter simpliciter. I have far too much confidence in the jury to believe that an acquittal on the first would endanger a justifiable conviction on the second.

The noble Lord, Lord Renton, said that there was some difficulty in a jury distinguishing between the criminal intent which is necessary to be proved in all cases of which that is an ingredient and the commission of the offence on racial grounds. He said that that adds to the burden on the prosecution. I do not accept that. I have greater confidence in the jury. There is no difficulty whatever in a jury doing what it does daily in deciding whether the criminal intent is established beyond reasonable doubt and also of addressing the question of whether the offence as a matter of fact was committed for racial reasons. I have a high opinion of the jury. The noble Lord is raising difficulties which would not exist in practice.

Perhaps I may correct one other observation made by the noble Lord. He said that I acknowledged that the creation of these new offences would give rise to acquittals. I said no such thing and suggest to the noble Lord that when he looks at Hansard tomorrow he will look in vain for anything which I said to that effect.

Lord Renton

My Lords, I did not suggest that the noble Lord suggested that. It was my suggestion that that would be the result.

Lord Irvine of Lairg

My Lords, in that case the issue between us is plain. In my judgment there is no such risk. However, I noted that the noble Lord said that the correct vehicle for dealing with these matters was in the context of Amendment No. 146B in the name of the noble Baroness, Lady Flather. It is interesting. I do not know whether the noble Lord was saying that it was in that area that we shall find the natural context for debate on this subject or whether he was intending to intimate that he is minded to support that amendment when it is moved by the noble Baroness. We shall await that with interest.

The noble and learned Lord, Lord Hailsham, will forgive me if I say that he said, slightly grandiosely, that this amendment was fatally flawed intellectually: if the offence is committed on racial grounds then a jury is well able to resolve that issue as well as the issue of criminal intent. I believe that what the noble and learned Lord was saying was not that that intellectual exercise was beyond his own capacities but beyond those of the common jury.

The noble and learned Lord went on to say in terms —and I confess that I was surprised to hear it—that he for his part did not trust juries because of the perverse acquittals which come from them. I remind him of the many judges of the greatest eminence who across this century have said of acquittals to which their immediate reaction was to disagree but who on mature reflection have concluded and gone out of their way to say that the jury was right not to be satisfied beyond reasonable doubt. I hope that perhaps on reflection the noble and learned Lord will repent of his aspersion on juries when he said, "I for one do not trust juries".

Lord Hailsham of Saint Marylebone

My Lords, I said that in a particular context. I said that there would be a certain number of perverse acquittals, and that I stand by. It is not true to say that I was making a general proposition that I do not trust juries. I have just as much faith in the jury system as anybody else.

Lord Irvine of Lairg

My Lords, if that be right— and I readily accept the noble and learned Lord's explanation—he is doing no more than expressing the opinion that in the law in general in his judgment the jury sometimes returns perverse acquittals. There is no reason to suppose that in relation to this particular offence proposed by this amendment the jury would behave any differently. As a matter of logic it would not always get it right, but we can still trust it.

Lord Hailsham of Saint Marylebone

My Lords, the noble Lord is misrepresenting me. I do not want to continue this altercation, but he is misapprehending me. I was saying that if the amendment were passed it would be counterproductive because there would be fewer convictions for this offence.

Lord Irvine of Lairg

My Lords, there is an issue on that. I understood the noble and learned Lord—as Hansard will show tomorrow—to say that he did not for his part trust juries. I believe that that is an accurate quotation.

Finally, the noble and learned Lord, Lord Lowry, accepted that racial motivation was uniquely pernicious. What he really said was that, because other offences might have been comprehended within this amendment and because there might be other motivations in addition to racial ones which could be included within an appropriate amendment, this amendment was to be placed in the box marked "too difficult" and therefore we should do nothing about it. That is not a form of reasoning which appeals. The balance of the argument is all one way. I propose to test the opinion of the House.

4.46 p.m.

On Question, Whether the said amendment (No. 146) shall be agreed to?

Their Lordships divided: Contents, 110; Not-Contents, 198.

Division No.1
CONTENTS
Ackner, L.	Clinton-Davis, L.
Addington, L.	Cocks of Hartcliffe, L.
Airedale, L.	Dahrendorf, L.
Allen of Abbeydale, L.	Dainton, L.
Alport, L.	David, B.
Annan, L	Dean of Beswick, L.
Ardwick, L.	Desai, L.
Ashley of Stoke, L.	Donaldson of Kingsbridge, L.
Avebury, L.	Dormand of Easington, L.
Barnett, L.	Eatwell. L.
Beaumont of Whitley, L.	Ewing of Kirkford, L.
Beloff, L.	Fisher of Rednal, B.
Blackstone, B.	Fitt, L.
Boston of Faversham, L.	Flather, B.
Bottomley, L.	Gainford, L.
Brooks of Tremorfa, L.	Gallacher, L.
Campbell of Eskan, L.	Geraint, L.
Carmichael of Kelvingrove, L.	Gladwyn, L.
Carter, L.	Glasgow, E.
Chappie, L.	Glenamara, L.
Cledwyn of Penrhos, L.	Gould of Potternewton, B.

Graham of Edmonton, L.	Nicol, B.
[Teller.]	O'Cathain, B.
Gregson, L.	Parmoor, L.
Hamwee, B.	Peston, L.
Harris of Greenwich, L.	Peterborough, Bp.
Hilton of Eggardon, B. [Teller.]	Pitt of Hampstead, L.
Hollis of Heigham, B.	Plant of Highfield, L.
Houghton of Sowerby, L.	Prys-Davies, L.
Howell, L.	Rea, L.
Hughes, L.	Renfrew of Kaimsthorn, L.
Irvine of Lairg, L.	Richard, L.
Jacques, L.	Ritchie of Dundee, L.
Jakobovits, L.	Robson of Kiddington, B.
Jay of Paddington, B.	Rochester, L.
Jeger, B.	Russell, E.
Jenkins of Hillhead, L.	Sainsbury, L.
Kilbracken, L.	Seear, B.
Kintore, E.	Sefton of Garslon, L.
Kirkhill, L.	Serota, B.
Lester of Herne Hill, L.	Shepherd, L.
Llewelyn-Davies of Hastoe, B.	Simon of Glaisdale, L.
Longford, E.	Strafford, E.
Mackie of Benshie, L.	Swinfen, L.
Mallalieu, B.	Taylor of Gryfe, L.
Mar and Kellie, E.	Turner of Camden, B.
Mason of Barnsley, L.	Warnock, B.
Mayhew, L.	Wedderburn of Charlton, L.
McGregor of Durris, L.	Whaddon, L.
McIntosh of Haringey, L.	Wharton, B.
McNair, L.	White, B.
Merlyn-Rees, L.	Williams of Crosby, B.
Monkswell, L.	Williams of Elvel, L.
Morris of Castle Morris, L.	Williams of Mostyn, L.
Morris of Kenwood, L.	Winchilsea and Nottingham, E.
Mulley, L.

NOT-CONTENTS
Aberdare, L.	Craigavon, V.
Ailesbury, M.	Cranborne, V.
Aldington, L.	Crickhowell, L
Annaly, L.	Cullen of Ashbourne, L.
Archer of Weston-Super-Mare, L.	Cumberlege, B.
Arran, E.	Davidson, V.
Ashbourne, L.	De L'Isle, V.
Astor, V.	Dean of Harptree, L.
Attlee, E.	Denham, L.
Balfour, E.	Denton of Wakefield, B.
Barber, L.	Dilhorne, V.
Bauer, L.	Donaldson of Lymington, L.
Belhaven and Stenton, L.	Dormer, L.
Blatch, B.	Downshire, M.
Blyth, L.	Dundonald, E.
Borthwick, L.	Effingham, E.
Boyd-Carpenter, L.	Elibank, L.
Brabazon of Tara, L.	Elles, B.
Bridgeman, V.	Elliott of Morpeth, L.
Bridges, L.	Elphinstone, L.
Brookeborough, V.	Erne, E.
Brougham and Vaux, L.	Faithfull, B.
Bruntisfield, L.	Ferrers, E.
Burnham, L.	Foot, L.
Butterworth, L.	Fraser of Carmyllie, L.
Cadman, L.	Fraser of Kilmorack L.
Caithness, E.	Gainsborough, E.
Campbell of Alloway, L.	Gardner of Parkes, B.
Campbell of Croy, L.	Gibson-Watt, L.
Carlisle of Bucklow, L.	Glenarthur, L.
Carnarvon, E.	Goschen, V.
Chalker of Wallasey, B.	Grafton, D.
Charteris of Amisfield, L.	Grantchester, L.
Chelmer, L.	Gray of Contin, L.
Chelmsford, V.	Greenway, L.
Chesham, L.	Gridley, L.
Clanwilliam, E.	Grimston of Weslbury, L.
Clark of Kempston, L.	Hailsham of Saint Marylebone, L.
Colnbrook, L.	Halsbury, E.
Constantine of Stanmore, L.	Hanworth, V.
Cork and Orrery, E.	Harding of Petherton, L.
Cornwallis, L.	Harmar-Nicholls, L.
Courtown, E.	Harmsworth, L.

Hams of High Cross, L.	Oxfuird, V.
Harvington, L.	Palmer, L.
Hemphill, L.	Pearson of Rannoch, L.
Henley, L.	Peel, E.
Hertford, M.	Pender, L.
Hesketh, L.	Perth, E.
Hives, L.	Peyton of Yeovil, L.
Holderness, L.	Pike, B.
HolmPatrick, L.	Platt of Writtle, B.
Hood, V.	Plummer of St. Marylebone, L.
Hooper, B.	Pym, L.
Hothfield, L.	Rankeillour, L.
Howe, E.	Rawlinson of Ewell, L.
Hylton, L.	Reay, L.
Hylton-Foster, B.	Rees, L.
Inchyra, L.	Renton, L.
Ironside, L.	Rodger of Earlsferry, L.
Jenkin of Roding, L.	Salisbury, M.
Johnston of Rockport, L.	Saltoun of Abernethy, Ly.
Keyes, L.	Sanderson of Bowden, L.
Kimball, L.	Sandford, L.
Lane of Horsell, L.	Seccombe, B.
Lauderdale, E.	Selborne, E.
Leigh, L.	Sharpies, B.
Lindsay, E.	Simon, V.
Lindsey and Abingdon, E.	Skelmersdale, L.
Lloyd-George of Dwyfor, E.	Soulsby of Swaffham Prior, L.
Long, V.	St. Davids, V.
Lucas, L.	St. John of Bletso, L.
Lyell, L.	Stanley of Alderley, L.
Mackay of Ardbrecknish, L.	Stockton, E.
Mackay of Clashfern, L. [Lord	Strange, B.
Chancellor]	Strathclyde, L.
Macleod of Borve, B.	Strathcona and Mount Royal, L.
Manchester, D.	Strathmore and Kinghorne, E.
Mancroft, L.	[Teller.]
Manton, L.	Sudeley, L.
Marsh, L.	Swaythling, L.
McColl of Dulwich, L.	Terrington, L.
Merrivale, L.	Thomas of Gwydir, L.
Mersey, V.	Thurlow, L.
Monson, L.	Tollemache, L.
Montgomery of Alamein, V.	Torrington, V.
Mottistone, L.	Trefgarne, L.
Mountgarret, V.	Trevethin and Oaksey, L.
Mowbray and Stourton, L.	Tryon, L.
Munster, E.	Ullswater, V. [Teller.]
Nelson, E.	Vaux of Harrowden, L.
Newall, L.	Vivian, L.
Nickson, L.	Wade of Chorlton, L.
Norfolk, D.	Wakeham, L. [Lord Privy Seal.]
Norrie, L.	Walton of Detchant, L.
Northesk, E.	Westbury, L.
Onslow, E.	Wilberforce, L.
Oppenheim-Bames, B.	Wise, L.
Orkney, E.	Wyatt of Weeford, L.
Orr-Ewing, L.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.56 p.m.

[Amendment No. 146A had been withdrawn from the Marshalled List.]

Lord Brightman moved Amendment No. 146B^✶:

After Clause 140, Insert the following new clause:

( "Offence of selling confidential financial information

1. .—(1) It is an offence for a person ("the seller") to sell or offer to sell information as to the financial affairs of another person if—
1. (a) the seller knows that the information has been or will be obtained dishonestly or by deception; and
2. (b) the information is intended to be disclosed without the consent of such other person.
2. (2) An advertisement or circular indicating that information of that description is or may be for sale is an offer to sell within the meaning of subsection (1).
3. (3) A person guilty of an offence under this section is liable—
1. (a) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both;
1668
2. (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.").

The noble and learned Lord said: My Lords, I shall be as brief as I can, because I know that there are many amendments still to come. There are agencies in this country which offer to sell, at a price, confidential information about other people's affairs. The prices range between £100 and £1,000—sometimes more. I have in my hand a circular distributed by one of those agencies. It is headed, "Price list 1993–94". It states: The agency will provide a person's bank balance for £245; a copy of his last bank statement for £1,000; his average bank balance over the past six months for £250; his overdraft facilities for £300; his salary £200; pension details £200; the balance on his last credit statement £750".

What is called a sweep search for other accounts and balances is £450, then: Overseas tax havens—price on application. Numbered banking accounts—price on application",

and so forth.

At the foot of the circular is stated: Absolute confidence and discretion assured. More sensitive areas of intelligence are available on request".

Last year a reporter on the staff of the Daily Telegraph interviewed a gentleman who called himself the operations controller of one of those agencies. The operations controller said to the reporter: There is no security system which cannot be circumvented. Details can be obtained for banks or building societies by using pretext or subterfuge. The other way is to pay insiders for contacts and services".

There are other similar circulars because the agency described itself as: 'The widely acknowledged market leaders in the specialist procurement of highly sensitive commercial and personal information".

That circular is a blatant offer to sell confidential information which will be obtained by pretext or subterfuge —that is, dishonesty.

The Director of Public Prosecutions stated unequi-vocally that such offers are not a criminal offence. My amendment will make them a criminal offence. It reads: It is an offence for a person ('the seller') to sell or offer to sell information as to the financial affairs of another person if… the seller knows that the information has been or will be obtained dishonestly or by deception".

In Committee two—and only two—objections were raised by the Minister. The first was: 'The biggest trouble … is that it would outlaw activities which are perfectly legitimate … credit reference agencies would be covered by the amendment".—[Official Report, 16/6/94; col. 1826.]

That objection is met by my amendment as now tabled because it applies only to information that has been or will be obtained dishonestly or by deception. A reputable credit agency does not acquire its information dishonestly or by deception, pretext or subterfuge.

The Minister's second objection was: The amendment might even make it an offence for a bank to charge a customer for sending him his own bank statement".— [Official Report, 16/6/94; col. 1827.]

If I may say so without giving offence, I cannot help feeling that that observation was rather scraping the barrel in the search for objections to my amendment. Be that as it may, the amendment that is tabled could not possibly be attacked on that score because my bank is not engaged in deception or dishonesty, pretext or subterfuge when it sends me my bank statement. Those were the only two objections that the Minister could find to my amendment tabled in Committee.

I turn to the Government's Amendment No. 169ZA, which is grouped with my amendment and has been tabled in response to my amendment. I am grateful to the Minister for tabling the amendment. It is an amendment to the Data Protection Act and makes the wrongful procurement of computer-held personal information an offence. The amendment is undoubtedly useful. It marries perfectly with my amendment and could well count as subsection (2) to a clause which contains my amendment.

However, it does not on its own go far enough in two respects. First, it is confined to computer-held information. It does not touch the wrongful procurement of information that is held, or happens at the stage of procurement to be held, outside the computer. Secondly, it does not stop these iniquitous offers to sell financial information which can be obtained only corruptly— rather like an advertisement, "Country houses robbed to order. Price £10,000".

I shall not detain your Lordships further on this busy day. I respectfully invite all noble Lords who wish to stop at source this incitement to corruption to support my amendment. I beg to move.

Lord Williams of Mostyn

My Lords, speaking personally, I recognise the vice that the noble and learned Lord is seeking to attack. However, I respectfully question whether he has procured the means to attain his objective. Perhaps I may give an illustration which is far from being presently current. Let us assume that it were to be suggested that one or two Members of your Lordships' House were in the habit of accepting money for tabling Questions. Of course, we should immediately reject such a proposition as being quite monstrous. Let us further suppose that an investigative journalist, pretending to be a businessman, approached a Member of your Lordships' House with this monstrous suggestion and obtained certain knowledge about financial affairs; namely, that a cheque for £ 1,000 or even a postal order in the same sum might be quite acceptable. If the freelance journalist then offered that story for sale, perhaps even to the Sunday Times, he would be committing a criminal offence because he would have obtained knowledge about the financial affairs of one of your Lordships by deception; namely, that he was a businessman genuinely interested in procuring information.

Of course, that is a relatively light-hearted illustration but there is a much more serious proposition which I put to see whether my thoughts are correct or whether I have mistaken entirely the effect of the noble and learned Lord's amendment. In our society there is a proper value for investigative journalism, whether undertaken by the newspapers or television. The late Captain Maxwell might usefully have been the recipient of more vigorous investigative journalism while he was alive rather than after he is dead. Many people would have benefited. Generally, the press carries out a useful service in examining the financial affairs not only of politicians or those who hold themselves out in public life but also of companies. Often, as the press ethics set out, it may be necessary to resort to a subterfuge or a deception. If the present amendment is accepted, there is a danger that all such investigative journalism carried out by freelancers, or freelancers working for television companies, will become a criminal offence. I very much doubt that that is the intention of the amendment. Speaking for myself, I should very much deprecate that such a consequence could be brought about.

There is a vice that we. need to deal with and the Government's amendment comes closer to doing that, though not perfectly. I should be most grateful to hear the noble and learned Lord's answers to my fears about an unnecessary cramping of proper investigative journalism. It is a useful component in our society, beset as it is with obsessive secrecy for no sensible purpose.

Earl Ferrers

My Lords, it may be for the convenience of the House if, in replying to the: amendment, I speak to my Amendment No. 169ZA because they are grouped together. Your Lordships might find it convenient to have both sides of the same argument at the beginning of the debate rather than at the end.

When the noble and learned Lord, Lord Brightman, moved his amendment on this subject in Committee, I indicated that I should like to reflect further on the arguments that had been put by your Lordships. The result of that deliberation is Amendment No. 169ZA. I should like to suggest that this is a more suitable way of approaching what we all agree to be an offensive and noxious practice—that is, the deliberate obtaining of private information by those who are not entitled to have it.

We have approached the problem through the medium of the Data Protection Act, as the information which is being sought is increasingly likely, these days, to be held on a computer, and because the Data Protection Act contains clear arrangements for determining who is entitled to receive data.

Under the Act, data may be disclosed only to categories of people who are described in the relevant entry in the register, which is held by the Data Protection Registrar. It is already an offence knowingly or recklessly to disclose data to someone who is not described in the register entry. Therefore, the employee of, for example, a bank, who disclosed data to someone whom he knows is not entitled to receive that data, would be liable to prosecution. If an outsider bribed him to do it, that person might also be guilty.

But there is no offence at the moment if the outsider deceives a bank employee into thinking that the person who is making the inquiry is a person who is covered by the relevant register entry; that is, by pretending to be the person to whom the data relate, or by pretending to be someone who is acting on that person's behalf.

That is what our amendment seeks to catch. It makes it an offence to procure the disclosure of data where that disclosure is in contravention of the relevant data protection register entry, and where the person, who is doing the procuring, knows or has reason to believe —in other words he ought to know—that the disclosure constitutes a contravention.

I believe that that approach addresses the mischief where it is necessary—at the point of disclosure. If you can stop information from being improperly disclosed in the first place, it will not be available for subsequent misuse; for example, for selling. If I may say so, I see several advantages to our approach compared with the approach which is proposed by the noble and learned Lord, Lord Brightman, in his amendment. In the first place, the Government's amendment is not related to the subsequent use which is made of the information which has been improperly obtained. Our amendment applies wherever information is obtained in the way described, and even to any attempt to do so.

Under the noble and learned Lord's approach, the would-be procurer of the information has to be successful in his attempt to obtain this information, and has then to proceed to offer the information for sale before he can be caught by the amendment. In other words, he has to sell before the noble and learned Lord's amendment works. If the inquirer does not offer to sell the information—perhaps because his deception has been discovered before he has had an opportunity to sell the information or if he uses it for some other purpose —then no offence will have been committed.

Secondly, the noble and learned Lord's amendment is confined to financial information. The Government's amendment, though, applies to any information which is protected by the Data Protection Act, such as medical information; tax information; social security information; ex-directory telephone numbers and so on. I know that improper access to these other types of information was a cause of anxiety to some of your Lordships.

Thirdly, I do not think the noble and learned Lord's amendment will be very easy to prove. Establishing the fact of offering something for sale is obvious enough. But to prove that the seller has used, or had intended to use, deception to obtain the information in question, could be very difficult indeed. In the Government's amendment, it is only necessary to prove that a person has procured the disclosure of information when that disclosure contravenes the Data Protection Act. It is not necessary to prove deception.

I understand the outrage which many noble Lords felt on receiving advertising material which had blatantly offered for sale confidential information about other people. As a result of that anxiety, I have considered long and hard with my advisers how best to overcome the problem. But I am bound to tell your Lordships that there is no easy way of dealing with it and that I have, if I may say so, serious misgivings about the approach which the noble and learned Lord has proposed.

The noble and learned Lord's amendment is not confined to the Data Protection Act, but it applies to information of any kind which is obtained dishonestly or by deception, and where the person concerned does not consent to its disclosure.

5.15 p.m.

Lord Brightman

My Lords, my amendment does not refer to any information; it refers to "financial information".

Earl Ferrers

My Lords, I accept that, but the information to which the noble and learned Lord refers does not have to be restricted by the Data Protection Act. The Data Protection Act is a very specialised provision: it is concerned with personal data which is held on a computer, not with information more generally. It was deliberately drafted in that way because of the particular threat which computers entail, by reason of their ability to collate and disseminate lots of pieces of information very rapidly. Given the special direction of the Act, there was no need to include in it any separate provisions; for example, in respect of the activities of the press.

Had the Data Protection Act been concerned with the use of personal information in general, the position would have had to be very different. I have no doubt that Parliament would have felt it necessary to make provision to safeguard the legitimate activities of investigative journalists, to which the noble Lord, Lord Williams of Mostyn, referred. That is why I am particularly concerned about the noble and learned Lord's amendment, which is not confined (as is the Government's) to information which is obtained in contravention of the Data Protection Act but affects the sale of financial information in any form if it is obtained by deception.

I am not suggesting that we should approve of any and every sort of underhand means employed by journalists. But it is not difficult to envisage some circumstances where information ought to be in the public domain. Leaving aside the Data Protection Act, if it was discovered, for example, that a Minister had pocketed £1 million out of public funds —and I hope that your Lordships will agree that I am inviting your Lordships to extend your imagination to its extremities —it could be said that it would be in the public interest for that fact to be in the public domain, even if the information had been obtained by a questionable route. That is when personal privacy and public interest may come into conflict. And this is the area which the noble and learned Lord, Lord Brightman's amendment enters, and in a significant way.

These are difficult questions, and I am not suggesting to the House that the answers are straightforward. Where the line should be drawn between the individual's right to privacy on the one hand, and society's interest in a free press on the other, is a fairly fundamental, contentious and delicate subject. That is why Sir David Calcutt was asked to look into and advise upon the problem and it is one of the issues which the Government will be addressing in their forthcoming White Paper on the press and privacy.

I do not think that we can anticipate the White Paper in what we attempt to do in the course of this Bill, and I do not think that we would be sensible to enter those murky waters. I must advise the House that I think it would be unwise to make changes as the noble and learned Lord's amendment proposes which could have wide-ranging and perhaps unexpected implications for the operation of a free press in this country.

By contrast, I suggest, that the Government's amendment is a valuable step forward. I cannot claim to your Lordships that it will guarantee the end of all the practices in this area which many of your Lordships have found so distasteful. For one thing, the mere fact that we make an activity unlawful does not, regrettably, mean that it never happens. Plenty of people, unfortunately, continue to commit murder despite the law. Many people—although I am sure few of your Lordships are among them—go faster than 30 miles per hour when the law provides that they should not. But I do think that our amendment fills a significant loophole in the protection provided by the Data Protection Act. We have moved quickly in order to bring it before your Lordships, and I hope that it will send a clear signal that the Government view very seriously the misuse of personal information in the way in question.

Lord McIntosh of Haringey

My Lords, before the Minister sits down, perhaps I may ask a question simply for information, because I am still listening very carefully to the debate and trying to make up my mind what to do about it. The government amendment refers to "computer-held personal information". Would that include, for example, a bank statement which is produced electronically and printed out on to paper?

Earl Ferrers

My Lords, I may not have the wording quite right but I believe that the amendment refers to information which is held in a computer and which—I believe that I am correct in saying—is subsequently printed out.

Viscount Mountgarret

My Lords, I should say to the noble and learned Lord, Lord Brightman, how strongly I subscribe to his views and feelings on this matter. When the subject was raised in Committee, I noted that my noble friend Lord Ferrers said that he would take away the matter to consider it. To a great extent, I believe that the noble and learned Lord is to be congratulated on having raised the matter in such a way as to persuade my noble friend the Minister to go a long way towards agreeing the substance of the amendment.

The noble and learned Lord was kind enough to circulate a briefing to many noble Lords. I was interested to read that his amendment had been retabled for the Report stage in case —and I emphasise the words "in case"—a government amendment was not forthcoming. However, a government amendment has been put forward; indeed, it is now before the House. Having asked my noble friend the Minister to think again, and in view of the fact that he has produced an amendment, I feel that the matter should rest there. I hope the noble and learned Lord will feel that his concerns have been met to some extent. He deserves the congratulations of your Lordships' House, but my noble friend the Minister should also be congratulated on having been able to persuade his colleagues to go a long way towards meeting the requirements of the noble and learned Lord's amendment.

Elarl Baldwin of Bewdley

My Lords, perhaps I may just ask my noble and learned friend a point of clarification. In subsection (2) of the amendment should it not be "an offer to sell" rather than "an offer to well"?

Lord Brightman

My Lords, there is a mistake on the Marshalled List. Subsection (2) should indeed refer to "an offer to sell".

Lord Peyton of Yeovil

My Lords, I express my gratitude to my noble friend Lord Ferrers for the amendment he has produced. On the other hand, it seems to me that we shall be left in a very odd position; namely, if the information is "computer held" there will be no great magic about it. It will be protected. But if it is not computer held and is obtained by trickery and dishonest means there will be no sanctions against it. I believe that my noble friend is asking us to live with a rather anomalous situation. The real basis for the amendment is the boast that there is no security system that cannot be circumvented. Surely that must make all noble Lords feel uncomfortable and insecure. I am not suggesting for one moment that your Lordships have anything to hide. It is simply that there is a need for all of us to be protected against quite unwarranted intrusions.

A further matter worries me. Unfortunately, there is no shortage of easily corruptible people who will make use of their positions as regards access to private information to make a profit for themselves by selling such information to some kind of grubby organisation like the agencies to which the noble and learned Lord referred. I would be most disturbed if the Government were really asking your Lordships to be content with their amendment, valuable though it is; indeed, I certainly would not deny that fact.

However, I have a certain sympathy with my noble friend on the Front Bench in that he has to answer so powerful and lucid an advocate as the noble and learned Lord who moved the amendment. If I may say so without giving offence to anyone, the brevity with which the noble and learned Lord moved his amendment was matched by his clarity. I can only suggest that the noble and learned Lord offers a marvellous example. The noble and learned Lord put a proposition to my noble friend the Minister which I, for one, hope he will not think of rejecting.

Baroness Faithfull

My Lords, I may be wrong, but the list read out by the noble and learned Lord of items which could be obtained included, I believe, the circumstances of a person's private life. Presumably, such information would not be held on a computer; nevertheless, it might damage a person and his or her reputation irreparably if it was forwarded at the request of the person seeking the information from the agency.

Lord Burnham

My Lords, when my noble friend speaks further to the amendment, I should like him to clarify a point which confuses me. The noble and learned Lord spoke categorically and unequivocally of the "seller" as the man who is to be held guilty of such a crime. However, my noble friend's amendment refers to "a person who procures". I may have misunderstood, but I find the procurer to be the man who obtains the information and he may well not be the seller of such information. Will my noble friend's amendment deal equally with both the seller and the procurer of such information?

Lord Fraser of Kilmorack

My Lords, I strongly support the amendment moved so well and clearly by the noble and learned Lord, Lord Brightman. To me, it fulfils a very long felt need in our society and one that could not be more clearly and fully dealt with. As I said, I strongly support the amendment and I hope that my noble friends will also support it.

Lord Donaldson of Lymington

My Lords, I should very much like to support the amendment of my noble and learned friend Lord Brightman. In doing so, I want to make it clear that I equally support the Minister's amendment. I find nothing inconsistent between the two. One deals with the problem of leaking information which is held on computer but, of course, does nothing about information which is not held on computers. In many cases, there will be considerable difficulties in proving who it was who procured the leak, and so on. But the incentive to leak and to cover up the leakers, if I may put it that way, will exist so long as it is open to people to offer such information for sale. Therefore, in my view, the right way to tackle the problem is to accept both amendments and adopt a two-barrelled approach, bearing in mind the fact that it will be easier to get the man who is offering such information for sale than the man who procured the disclosure of the information.

It would be quite inappropriate for me—and, indeed, quite inappropriate for any Member of this House—to discuss the issue of payment for Questions. I certainly do not intend to do so. However, the Minister raised the question of what we should do upon discovering that a member of Her Majesty's Government had abstracted £1 million from the public till. I believe that the answer is quite clear. You tell the Leader of the Opposition, or, conceivably, and perhaps first, the police.

However, the one thing you do not do—or, at any rate, I see no reason why a special exception should be left to enable you to do so at the price of the very desirable reform of my noble and learned friend—is to offer it to the Sunday Times for a very large reward. I appreciate the force of the very proper tenderness of the noble Lord, Lord Williams, for the press in its investigative journalism role. But it may have escaped your Lordships' attention that the noble Lord started to say that the amendment would inhibit investigative journalism. As I know so well, an advocate listening to himself is sometimes surprised at what he is saying and corrects himself. Indeed, the noble Lord did correct himself. He said that he meant to refer to a freelance. An employee of the Sunday Times doing so would not be offering the information for sale and, therefore, would commit no offence under the Brightman amendment. It is only the freelancer who would be in difficulty and for my part I can live with that.

5.30 p.m.

Lord Williams of Mostyn

My Lords, before the noble and learned Lord sits down, I hope I may deal with that point. The Sunday Times itself would be offering to sell information, or would be selling information, as to the financial affairs of a particular person exposed in the City. Therefore it would not simply be a case of the freelancer. Would not the noble and learned Lord agree that someone who published a book exposing a City fraudster would similarly be offering to sell information?

Lord Alexander of Weedon

My Lords, I would like, if I may, to support the approach which has just been put forward by the noble and learned Lord, Lord Donaldson. The first thing I wish to do, if I may, is to thank the Minister for his genuine attempts to meet the mischief which your Lordships have been seized of not only in Committee but in Parliamentary Questions recently. I believe that we owe him a debt for doing so and I know it has demonstrated his personal interest in the issue. But I, too, see nothing inconsistent with the acceptance of that approach and the acceptance of the approach put forward by the noble and learned Lord, Lord Brightman. May I say why I am attracted to the approach of the noble and learned Lord, Lord Brightman? I believe that the amendment put forward on behalf of the Government is valuable, but the root of this mischief is that there are organisations which seek to obtain information in order to sell it. I believe that we ought to go to what is the vice of what we are seeking to deal with.

I know that your Lordships feel that confidentiality is immensely important to customers, and banks agree with that. It is also immensely important to the reputation of banks. These issues are by no means easy to deal with. There may be occasions, which may be difficult to trace, when organisations that seek to sell information procure that information by offering money to those who work within financial institutions. I have no direct evidence of that, but there may well be such cases. However, there are other occasions when such organisations deceive those who work within financial institutions by obtaining sufficient details of the customer's account to enable them to ring the institutions. I have listened in to those telephone calls at the receiving end. The person who is receiving literally hundreds of calls a day has at a moment in time to decide whether the information he is being given is genuine, because if it is genuine that person must, to a degree, be "user friendly"—as it would be put in the jargon—and give information to genuine customers.

This is a difficult tightrope to tread. I am not absolutely clear myself whether the Government's amendment would make it an offence if someone procured information from an employee of a financial services institution who unwittingly disclosed it with no mens rea and therefore might not himself have committed an offence under the Data Protection Act. I rather doubt that that would be the case but I would be grateful if in response my noble friend the Minister—if he does respond—could help on that. Whether that is the case or not, I believe that the essence of this matter is that we all know that the real mischief we want to strike at is those who seek to gain a profit from this information by selling it. I should have thought, having heard the constructive tones of this debate, it would not be impossible to put together the best of the Brightman amendment and the best of the government amendment and bring that back to us, on an agreed basis, at Third Reading.

Lord Hailsham of Saint Marylebone

My Lords, I was about to say almost what has fallen from the lips of my noble friend Lord Alexander of Weedon. I wish to endorse what he has said as a possible way out in the hope of proving helpful to both parties. I wish to thank my noble and learned friend Lord Brightman for having paid attention to the rather pedantic little point I made in Committee, to which I think he gave a somewhat inadequate reply. However, he has now dealt with it completely. But there is a hole in his amendment; namely, that it is confined to financial information. I thought that my noble friend Lord Ferrers made a good point when he said that medical information, for instance, could be equally sensitive.

My noble and learned friend Lord Donaldson and my noble friend Lord Alexander of Weedon made the point that the government amendment is defective in one respect; namely, that it is confined to computer held information. There must be information of a kind which one would like to protect which is not computer held. I do not even know whether my bank, which is a small one, holds my financial information on a computer, and there are certainly a lot of other details about me which are not held on computers which I certainly would like to protect. I am therefore in the position of the man in the "Beggar's Opera" who sang a song —perhaps your Lordships remember this— I could be happy with either Were t'other dear charmer away, But when they both tease me together. To neither a word will I say, But fa-lah di-lah lah di-loh-lah". I think my noble friend Lord Alexander has suggested a way out and that is that the benefits and the limitations of the two amendments, which are now apparently in contention with one another, could be reconciled. They are not incompatible basically, and the point of the noble Lord, Lord Williams of Mostyn, could be fanned in because, if he really tried, I do not think it would be beyond him—it certainly would not be beyond other legal brains interested in this matter—to put in a public interest defence to the version of the clause of my noble and learned friend Lord Brightman. I wonder whether it is not right therefore to accept the suggestion of the noble Lord, Lord Alexander, that we should take these matters away at this stage and come back at Third Reading with an amalgam between the two cases. If they are incompatible, I do not know which of the two charmers I would like to vote for.

Earl Attlee

My Lords, I rise briefly to support both amendments. The noble Earl's amendment refers to personal information; that is, for example, information about the noble Lord, Lord Boyd-Carpenter, or about myself. The amendment of the noble and learned Lord, Lord Brightman, refers to information about a person. Legally, as I understand it, "a person" could be a small limited company. Therefore leaks about the financial information of a small limited company could be very valuable.

Baroness Nicol

My Lords, I ask the Minister when he is responding to this debate to say whether he is prepared to accept the useful compromise that has been put forward. I think it is a way out, and more than that, it is not just a way out but a way of improving the provisions of both these amendments. If there is a fault in the amendment of the noble and learned Lord, to which I have put my name, it is that it is limited to financial information.

The noble Baroness, Lady Faithfull, asked earlier about that point. I would say to the noble Baroness that; the circular to which we referred has a great many other items on it which for the sake of brevity we did not read out. It includes a great deal of information which will not be on computer, which is not financial and which is; "price on application" information. I would very much like to see that information included in these restrictions if it can be done. I hope that the Minister will be able to accept the idea of amalgamating both these provisions. If not, I hope that my noble and learned friend—if I may call him so—will press this to a Division because it must go through.

Lord Harris of Greenwich

My Lords, I would hope that we would be able to achieve some progress on this; matter between this debate and Third Reading. I agree: with the noble and learned Lords, Lord Hailsham of Saint Marylebone and Lord Donaldson, and with the noble Lord, Lord Alexander, that one of these; amendments is not the enemy of the other. They can in my view be reconciled. The only point I wish to make in addition is that I agree with the noble and learned Lord, Lord Hailsham, in that I too think there should be a public interest defence. I think that that is an important: matter given the speech which was made by the noble Lord, Lord Williams of Mostyn. I think it would improve the whole handling of this issue.

I welcome what the Government have said, but I very much hope that the noble Earl will indicate that he is prepared to look at this matter again between the debate today and Third Reading next week to see whether it is possible to discuss the issues behind the amendment tabled by the noble and learned Lord, Lord Brightman.

Lord McIntosh of Haringey

My Lords, I suspect that that is the emerging consensus and probably wise advice. I agree with the noble and learned Lord, Lord Hailsham, that there are difficulties and attractions in relation to both amendments. I agree particularly with his suggestion about the public interest.

The issue which would sway me most if the matter went to a Division today is the issue raised by my noble friend Lord Williams of Mostyn. That is the issue of whether this amendment—or indeed either amendment —would inhibit investigative journalism. Unless I were fully convinced by the noble and learned Lord, Lord Brightman, in his reply to the debate, or by the Minister in replying in respect of his amendment, that that was; not the case I do not at present feel that I could vote for either amendment.

Earl Ferrers

My Lords, perhaps I may have the: leave of the House to respond at this stage before the: noble and learned Lord, Lord Brightman, responds to the debate as a whole.

It is difficult to follow up the attractive suggestion of the noble and learned Lord, Lord Donaldson of Lymington; namely, to ride both horses at once and accept both amendments. I say that with a considerable amount of humility, because when the matter was discussed in Committee I was deeply attracted by the amendment which the noble and learned Lord, Lord Brightman, put down at that stage. I have tried to see whether it would be possible to accede to the points which he tried to make and which he is trying to make with his amendment today.

The Government have approached the problem by recognising that the important issue is to try to attack the mischief where it occurs. It occurs where the information is divulged. The amendment in the name of the noble and learned Lord, Lord Brightman, states: It is an offence for a person … to sell or offer to sell information … if the seller knows that the information has been or will be obtained dishonestly or by deception". Therefore, the noble and learned Lord's amendment would require that before one could catch the person one would have to establish that the information had been obtained by deception or improperly.

Lord Brightman

My Lords, the amendment says that the information "has been or will be obtained".

Earl Ferrers

My Lords, there is no dispute about that. The point is that it has to be found that the information was obtained improperly or by deception. If that is established, the person is caught under the Government's amendment. The Government's amendment tries to catch the person who has divulged the information. Therefore, before the noble and learned Lord's amendment could operate, the person would have had to have fallen foul of the Government's amendment. In that respect, I believe that we have the edge.

My noble friend Lord Alexander asked about the position of the employee who had passed on to somebody else information which he had obtained genuinely and to which he was entitled. My noble friend asked whether that person would have committed an offence. The employee would not have committed an offence if he had passed on the information to a person whom he genuinely thought to be the right person. It would be the procurer who had committed the offence by masquerading as somebody else.

I turn to the second part of the noble and learned Lord's amendment. This is the part with which I have the most difficulty. It is also the part with which I have the greatest sympathy. The noble and learned Lord, Lord Brightman, wants to catch the person who sells the information. That is what we would all like to achieve. However, once one enters that territory one faces the problem which the noble Lord, Lord Williams of Mostyn, described in relation to what is privacy and where the public interest takes precedence.

I ask your Lordships not to go down the route proposed in the amendment of the noble and learned Lord, Lord Brightman. The report of Sir David Calcutt on privacy and the public interest has been produced. The Government have to make up their mind on that issue. It is a very difficult and sensitive subject. We shall then have to issue a White Paper and there will have to be consultation. I believe that if we were to accept the noble and learned Lord's amendment we would pre-empt that process.

That is why I suggest that it would be wiser to accept the Government's amendment rather than that of the noble and learned Lord, Lord Brightman. Your Lordships have suggested that we might take the matter away and look at it again to see whether we could combine the two. I have thought hard about the matter with my advisers to see whether we could combine the two because that was my natural inclination. I am advised that it would be very difficult to combine them.

For those reasons I hope that the noble and learned Lord will acknowledge that we have gone as far as we possibly can on this matter before running into the deeper trouble which we might run into with his amendment. Therefore, I hope that he will accept the Government's amendment and graciously withdraw his own.

5.45 p.m.

Lord Brightman

My Lords, I acknowledge with gratitude the amendment which the noble Earl has put down. There is no doubt that it goes a long way to meet our problems. I am the last person in any way to denigrate what he has achieved. I must apologise if I gave the impression that I opposed his amendment. I had no intention of conveying that impression.

It is my belief that one amendment supplements the other. I should have liked to have seen my amendment followed by the Minister's amendment as two subsections of the same clause. Then I believe we would really have achieved something.

I must deal with a point which has been mentioned a great many times; namely, the point rightly raised by the noble Lord, Lord Williams of Mostyn. He was anxious about the work of investigative journalists and wanted to know what I had to say about that. I am not in favour of the acquisition of information dishonestly by subterfuge or deception. I stand by that. The press do very good work and investigative journalists are very useful, but I do not like the acquisition of information dishonestly.

I am not certain whether I quite understood the query raised by the noble Baroness, Lady Faithfull, concerning the difference between my amendment and the government amendment. My amendment is confined to financial information. It covers such information whether or not it is held on a computer. The government amendment is wider than my amendment in the sense that it applies to all personal information, but only when held on computer.

I should have thought that it would be perfectly possible for the Government to produce a combined amendment. I should not like to do anything which impeded that. However, we have not been given any undertaking by the noble Earl that the Government will come back with a composite amendment. In those circumstances, I am bound to take the opinion of the House, particularly in view of the large number of letters I have received in support of my amendment.

5.48 p.m.

On Question, Whether the said amendment (No. 146B^✶) shall be agreed to?

Their Lordships divided: Contents, 163; Not-Contents, 111.

Division No.2
CONTENTS
Ackner, L.	Houghton of Sowerby, L.
Addington, L.	Hughes, L.
Aldington, L.	Huntingdon, E.
Alexander of Weedon, L.	Hylton, L.
Allen of Abbeydale, L.	Hylton-Foster, B.
Annan, L.	Inchyra, L.
Ardwick, L.	Irvine of Lairg, L.
Attlee, E.	Jacques, L.
Baldwin of Bewdley, E.	Jakobovits, L.
Beaumont of Whitley, L.	Jeger, B.
Belhaven and Stenton, L.	Jenkins of Hillhead, L.
Blyth, L.	Kilbracken, L.
Bonham-Carter, L.	Kinloss, Ly.
Boston of Faversham, L.	Kintore, E.
Bottomley, L.	Lauderdale, E.
Boyd-Carpenter, L.	Llewelyn-Davies of Hastoe, B.
Brabazon of Tara, L.	Longford, E.
Brentford, V.	Lovell-Davis, L.
Bridges, L.	Mackie of Benshie, L.
Brightman, L. [Teller.]	Macleod of Borve, B.
Broadbridge, L.	Mallalieu, B.
Bruce of Donington, L.	Masham of llton, B.
Butterworth, L.	Mason of Barnsley, L.
Cadman, L.	Mayhew, L.
Carnarvon, E.	McGregor of Durris, L.
Chappie, L.	McNair, L.
Charteris of Amisfield, L.	Merrivale, L.
Clanwilliam, E.	Minto, E.
Cledwyn of Penrhos, L.	Monkswell, L.
Clinton-Davis, L.	Monson, L.
Colville of Culross, V.	Morris of Kenwood, L.
Colwyn, L.	Morris, L.
Constantine of Stanmore, L.	Mottistone, L.
Cork and Orrery, E.	Mountevans, L.
Cornwallis, L.	Mowbray and Stourton, L.
Craigavon, V.	Nelson, E.
Crickhowell, L.	Newall, L.
Dahrendorf, L.	Nicol, B. [Teller]
Darcy (de Knayth), B.	Onslow, E.
David, B.	Oppenheim-Barnes, B.
Davidson, V.	Orkney, E.
Dean of Beswick, L.	Orr-Ewing, L.
Desai, L.	Pearson of Rannoch, L.
Dilhorne, V.	Pender, L.
Donaldson of Kingsbridge, L.	Perth, E.
Donaldson of Lymington, L.	Peyton of Yeovil, L.
Donoughue, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Plummer of St. Marylebone, L.
Fairhaven, L.	Prys-Davies, L.
Faithfull, B.	Rankeillour, L.
Falkland, V.	Redesdale, L.
Foot, L.	Renton, L.
Fraser of Kilmorack, L.	Richard, L.
Gainsborough, E.	Ritchie of Dundee, L.
Gallacher, L.	Rochester, L.
Geraint, L.	Roskill, L.
Glasgow. E.	Russell, E.
Glenamara, L.	Salisbury, M.
Glenarthur, L.	Seear, B.
Gould of Pottemewton, B.	Sefton of Garston, L.
Graham of Edmonton, L.	Serota, B.
Greenway, L.	Shaughnessy, L.
Hamwee, B.	Shepherd, L.
Hanworth, V.	Sherfield, L.
Harding of Petherton, L.	Simon of Glaisdale, L.
Harris of Greenwich, L.	Skelmersdale, L.
Harris of High Cross. L.	St. John of Bletso, L.
Harvington, L.	Stedman, B.
Hollis of Heigham, B.	Stoddart of Swindon, L.
Hood, V.	Strabolgi, L.
Hooson, L.	Strafford, E.

Swinfen, L.	Warnock, B.
Taylor of Blackburn, L.	Waverley, V.
Taylor of Gryfe, L.	Wedderburn of Charlton, L.
Thurlow, L.	Wharton, B.
Tordoff, L.	White, B.
Torrington, V.	Wilberforce, L.
Tryon, L.	Williams of Elvel, L.
Turner of Camden, B.	Winchilsea and Nottingham, E.
Vaux of Harrowden, L.	Wyatt of Weeford, L.
Vinson, L.	Young of Dartington, L.
Walton of Detchant, L.

NOT-CONTENTS
Aberdare, L.	Ironside, L.
Annaly, L.	Jeffreys, L.
Archer of Weston-Super-Mare, L.	Johnston of Rockport, L.
Arran, E.	Kimball, L.
Astor, V.	Lane of Horsell, L.
Balfour, E.	Leigh, L.
Barber, L.	Lindsay, E.
Blatch, B.	Lindsey and Abingdon, E.
Borthwick, L.	Long, V.
Brigstocke, B.	Lucas, L.
Brookeborough, V.	Lyell, L.
Brougham and Vaux, L.	Mackay of Ardbrecknish, L.
Bruntisfield, L.	Mackay of Clashfern, L. [Lord
Carlisle of Bucklow, L.	Chancellor.]
Carmichael of Kelvingrove, L.	Manton, L.
Carter, L.	Marlesford, L.
Chalker of Wallasey, B.	McColl of Dulwich, L.
Chelmer, L.	McIntosh of Haringey, L.
Chelmsford, V.	Merlyn-Rees, L.
Chesham, L.	Mersey, V.
Clinton, L.	Mountgarret, V.
Courtown, E.	Munster, E.
Cranborne, V.	Northesk, E.
Cumberlege, B.	O'Cathain, B.
De L'Isle, V.	Oxfuird, V.
Dean of Beswick, L.	Peel, E.
Denham, L.	Peston, L.
Denton of Wakefield, B.	Pike, B.
Dormer, L.	Platt of Writtle, B.
Downshire, M.	Rawlinson of Ewell, L.
Dundonald, E.	Rodger of Earlsferry, L.
Elibank, L.	Romney, E.
Ellenborough, L.	Saltoun of Abemethy, Ly.
Elles, B.	Sanderson of Bowden, L.
Elliott of Morpeth, L.	Sandys, L.
Elphinstone, L.	Selborne, E.
Ferrers, E.	Sharpies, B.
Flather, B.	Soulsby of Swaffham Prior, L.
Fraser of Carmyllie, L.	St. Davids, V.
Gardner of Parkes, B.	Stanley of Alderley, L.
Geddes, L.	Stockton, E.
Gibson-Watt, L.	Strange, B.
Goschen, V.	Strathclyde, L.
Gowrie, E.	Strathcona and Mount Royal, L.
Gray of Contin, L.	Strathmore and Kinghorne, E.
Grimston of Westbury, L.	[Teller.]
Harmar-Nicholls, L.	Sudeley, L.
Harmsworth, L.	Thomas of Gwydir, L.
Hayhoe, L.	Trefgarne, L.
Hemphill, L.	Trumpington, B.
Henley, L.	Ullswater, V. [Teller.]
Hertford, M.	Vivian, L.
Hives, L.	Wakeham, L. [Lord Privy Seal.]
HoImPatrick, L.	Williams of Mostyn, L.
Hooper, B.	Wolfson, L.
Hothfield, L.	Wynford, L.
Howe, E.

Resolved in the affirmative, and amendment agreed to accordingly.

5.58 p.m.

Baroness Flather moved Amendment No. 146B:

Before Clause 141, insert the following new clause:

("Racial motivation to be an aggravating factor in sentencing

In section 29 of the Criminal Justice Act 1991, the following subsections shall be inserted after subsection (2)—

(2A) In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.

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

The noble Baroness said: My Lords, I much regret that we have had a break in the debates on the amendment standing in the name of the noble Lord, Lord Irvine of Lairg, and Amendments Nos. 146B and 146C because they relate to the same subject. It would have been far better if the mood of the House had been sustained. I am sorry that there has been a break during which your Lordships have been considering very different matters. I should have liked my amendments to follow that of the noble Lord, Lord Irvine, on racially motivated violence, because the issues noble Lords were thinking of at that stage were the very ones of which I wish to remind noble Lords again. Had I followed him, I might not have needed to say much to that effect because the matter would have been fresh in noble Lords' minds. However, I shall still not speak for a great length of time.

I just want to remind the House that there is a sickness in our society, whether or not we wish to recognise it. I was much encouraged by the sentiments that I heard from all sides of the Chamber making it clear that noble Lords abhor and despise the sickness which is present in our midst. It is good to have that feeling expressed, but there must come a moment when the feeling has to be translated into something concrete and presented to the public, the victims, those whose lives are every day being blighted in all parts of this great city. I do not know how many of your Lordships have personal experience or knowledge of families who are frightened to leave their homes. It is not something about which we can be totally intellectual or abstract, it is people's lives. It is necessary to express the sentiment that your Lordships expressed so well a short time ago in saying that noble Lords despise that kind of behaviour. It is time to do something about it, to enshrine our determination in an Act of Parliament in some way, to send out a strong message, not an empty one. No doubt my noble friend the Minister will tell us that it is merely an empty message. I do not believe it to be so.

We spoke in passing about Lord Salmon, who dealt with the rioters in the Notting Hill riots. The impact of his sentences on those rioters and that situation is remembered to this day. He said that he would not tolerate that kind of behaviour in a society which calls itself civilised, fair and just. We do call ourselves civilised, fair and just. It is, in my opinion, a most un-British thing to do, to penalise and victimise people simply because you do not like the way they look or the way they live or the way they eat. They are doing nothing to you, they are not committing any kind of offence, they are going about their normal lives. But you do not like the way they look, therefore you can create a situation where their life becomes a total and utter misery.

I think it might be a good thing if we all went back and read Lord Salmon's judgment. I had intended to bring it with me but I forgot. After all these years, it is as fresh as it ever was and it reminds us that it is important from time to time to send out a strong message to say that society will tolerate so much and no more.

I was grateful for the support of my noble friend Lord Renton: it was much welcomed by me. I look forward to what he may have to say on my modest amendment. I was told on the previous occasion that there was already guidance for judges in this area. It might interest your Lordships to know that no such guidance exists for magistrates. I have spoken to the chairman of the Magistrates' Association and she informs me that no such guidance exists. When we consider the number of offences which would be dealt with in the magistrates' courts, where these issues would be important, it is something to be concerned about.

I was at a conference this morning organised by the Association of District Councils. I spoke on the subject of racial harassment on council estates. During questions, one of the questioners mentioned that when the police finally bring someone to court, that person is not dealt with severely enough if racial harassment is proved or the racial element is proved. There is no such offence as racial harassment.

There should be no room for ambiguity, there should be a clear and precise statement of what we wish to happen. That is exactly what the Government did in another situation only last year. Section 66(6) of the Criminal Justice Act 1993 amended Section 29 of the Criminal Justice Act 1991 to stipulate that courts should regard the fact that an offence was committed on bail as an aggravating factor. The 1993 Act inserted into the 1991 Act a new Section 29(2), which states: In considering the seriousness of any offence committed while the offender was on bail, the court shall treat the fact that it was committed in those circumstances as an aggravating factor".

If it was a matter of common sense, one would say that this would be a most obvious point; one should not need to put it in an Act of Parliament. Yet it was considered serious enough to be put in an Act of Parliament. Is not a racial motive serious enough to be enshrined in an Act of Parliament?

I believe that it is extremely important to put something along similar lines into this Bill. We need to ensure that courts always regard racial motivation as an aggravating factor. That is the feeling behind the amendment.

The second of the two new clauses lays a duty on the prosecution to disclose any racial element in an offence. I took part in a "Panorama" programme about six months ago. One of the factors that came out through the research that was done for the programme was how frequently the racial element in a particular offence was not disclosed to the court by the Crown Prosecution Service. Very often, when the offender pleaded guilty to a lesser charge or an agreed charge, that area of concern was kept from the court. That has also come through from much anecdotal evidence. It is not always disclosed to the court that there is a racial element involved in a particular offence.

When I put the clause down at the Committee stage, the Minister said: At present, the prosecutor has a duty to inform the court of any factors which make the offence unusually serious—which includes information that an offence was racially motivated—and also to inform the court of any mitigating circumstances if those are known.

'The Government are concerned to ensure that evidence which goes to show racial motivation should be clearly indicated at every stage of the process … The police and the Crown Prosecution Service are already taking steps to identify cases where there is evidence of racial motivation. That is an issue which can be dealt with more effectively through additional guidance and training for all agencies involved in the criminal justice system rather than by legislation". —[Official Report, 16/6/94; col. 1937.]

Surely, guidance and training should be happening in any case. They are not alternatives to a duty to disclose. They should be there and they should be continuous. Each should work in such a way as to reinforce the other: guidance and training and a duty of disclosure. We need to create confidence in the victims, in the minority community, and indeed we need to send a message to the majority community or the perpetrators that this kind of behaviour will be taken into account by the courts. But it can only be taken into account by the courts if they are informed of it. If it is kept from the courts, then the decision is being made by the CPS in the first instance. We are not happy about that. It is extremely important that this clause is accepted by noble Lords. It is important that everyone who is a victim of a racially motivated crime knows that, whatever happens, that racial element will be placed before the courts. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, it is a great pleasure and privilege to support my noble friend Lady Flather in this amendment. I feel that this matter is one of the most difficult issues in our society at the present time. We had an extended debate earlier in the evening on the general theme of racially motivated crimes and how appropriate it is to respond to them. Like my noble friend I think that it is a matter for regret that for procedural reasons the debate on these subjects has been interrupted for an hour by other matters, albeit matters of importance.

It is fair to say that this amendment is in some ways less radical than the one that was proposed earlier by the noble Lord, Lord Irvine. This amendment does not set out to create new categories of offence; it deals primarily with the issue of sentencing, although there is also the succeeding amendment, on the matter of the placing of relevant information before the court.

A number of noble Lords who discussed the issue in the earlier debate addressed themselves to the matter of sentencing. The remarks of the noble and learned Lord, Lord Ackner, would have been as appropriate to this amendment as to the earlier one. The same may be true of the remarks of my noble friend Lord Boyd-Carpenter and the views expressed by my noble friend Lord Renton.

This amendment is somewhat minimal, but it sends a signal that is of great importance at the present time. It is minimal because Clause 29(2) of the Criminal Justice Act 1991 reads: Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender, nothing in this Part shall prevent the court from taking those factors into account for the purpose of forming an opinion as; to the seriousness of the offence". So the general concept of aggravating factors is clearly set out in the Criminal Justice Act 1991. The present amendment simply emphasises that racial motivation should be treated by the court as an aggravating factor in that context.

The accompanying amendment—which is a very important one, as my noble friend emphasised—that, it shall be the duty of the prosecuting authority to place before the court any information or material tending to show that the offence was committed with a racial motivation", will, one hopes, ensure that these matters are brought effectively to the attention of the courts. As my noble friend argued, that is not always the case at the present time.

It is the case that Parliament urgently needs to send a signal because of the tide of racism and racially motivated offences which is afflicting our society. That is the reason why it is appropriate to single out racial motivation at the present time. My noble and learned friend Lord Hailsham, who is, alas, no longer in his place, very effectively made the point that there are many other kinds of distasteful event of which one can take an equally dim view. That may very well be the case. But the point is that racially motivated offences are a problem in our society, and one to which Parliament should turn its attention.

A census in 1991 indicated that over the previous two years there had been 130,000 racially motivated incidents. Over two years there had been 14 racially motivated murders of Afro-Caribbean and Asian individuals. Those are very shocking figures.

The point has also been made that if each of those 130,000 incidents affects all the members of a family —perhaps five members, since many of the families involved are large —that will mean that something like one-third of the families of ethnic minority groups in the United Kingdom each year are affected by the knowledge that within their family or near their family there have been such offences.

I do not have direct personal experience of this kind of harassment. There are very few persons in this House who do. But it is an extraordinary circumstance that there is a significant proportion of the population which must sometimes walk in fear. As my noble friend said, there are people who are frightened to go out of their houses.

It is of course the case that in a society where there is a not negligible crime rate it may be that old and infirm people think twice about leaving their houses at night. But when we talk of people in minority groups, their fear is of a different kind. It is an apprehension that affects them day and night through the totality of their lives in this country, and it is deeply obnoxious. Nobody in this House denies that it is obnoxious, but in emphasising these points I am trying to underline why it seems relevant that this modest amendment providing that racial motivation should be explicitly referred to as an aggravating factor should be accepted.

In earlier discussions there was general agreement that we would wish to live in a society that was racially blind—that is to say, a society that would not take account of racial distinctions in a negative way. But I fear very much that at the present time we come very close to turning a blind eye to some of the obnoxious discriminating distinctions which are made. For that reason I think it would be very timely if noble Lords would support this amendment.

The Earl of Onslow

My Lords, again, I shall just draw a little picture. The noble Baroness, Lady Seear, does not come into it this time. If you are a Bengali mother living in a council house at the back of Brick Lane and you have had yobs throwing bricks through your window and shouting racist and offensive slogans, I think it is hard to feel anything other than the greatest possible contempt for that sort of behaviour. Where I have a difficulty, even though I have immense sympathy with the amendment, is in this respect. My noble friend has in a way highlighted the difficulty. We already have a piece of law which says that aggravating factors must be taken into account when sentencing. What we surely should not do in a piece of law is make an aggravating factor more aggravating by statute than it is by common sense.

That is where I have a slight difficulty with the amendment, even though the House is universally sympathetic to the idea behind it. It is hard to imagine the Bengali woman I mentioned suffering such treatment. I find it difficult to imagine anything nastier than that or than the treatment of Jews in the East End of London before the war. It is intolerable and quite out of kilter with a civilised society. But I have my doubts whether one should have more special aggravation laid down by statute.

Lord Annan

My Lords, I rise on the point which the noble Earl addressed and which was mentioned also by the noble and learned Lord, Lord Hailsham; namely, whether there is a distinction and a real difference between a crime committed just as a crime and a crime which is racially motivated.

The noble and learned Lord, Lord Hailsham, told the story of the Pontiff at Drogheda who said, "Murder is murder is murder." In a more sprightly vein, the noble Earl referred to his feelings as a drunken undergraduate, 20 years old, toward the noble Baroness, Lady Seear. Incidentally, he has just given exactly that kind of impression. However much he despises and hates the conduct of those who taunt and throw bricks through the windows of a Bengali mother living in Brick Lane, one must accept that there is no real distinction, but there is a distinction.

Perhaps I may tell the noble Earl my little story. I shall imagine myself motivated by highly patriotic sentiments. I go to Highgate cemetery and daub the monument to Karl Marx with the Union Jack to show my contempt for Marxism. It is an act of vandalism and totally unacceptable in a civilised society to treat graves in that way. Let me contrast that with another kind of daubing—the daubing of a Jewish grave with the swastika. There is a distinction. What the man who does that is saying to the man under the ground is, "Good riddance and good riddance to the six million who were gassed during the war". That is the distinction.

The noble Baroness is right to draw our attention to that and to the fact that the ethnic communities in the East End of London—and not merely there but in Leeds and elsewhere, all over the country—who are subjected to that kind of violence and harassment suffer violence of a different order from the kind of mindless violence and yob behaviour that we see every day in our midst. That is why I shall support the noble Baroness if she divides the House.

Lord Renton

My Lords, my noble friends Lady Flather and Lord Renfrew of Kaimsthorn were kind enough to say that during our earlier discussion on the amendment put forward by the noble Lord, Lord Irvine of Lairg, and pursuing what the noble and learned Lord, Lord Ackner, said about the importance of the effect of racial motivation on sentence, I mentioned that it was more relevant and helpful to discuss the matter on this amendment than the earlier one.

I agree with my noble friend that in deciding the sentence in any case the court should be obliged to consider the motive with which the crime was committed. When the motive is a wrongful motive, or a motive against the public interest or hurtful to individuals, or a racial, political, religious, commercial or sexual motive, any of those factors should be borne in mind by the court. Therefore I do not feel that my noble friend's amendment goes far enough.

I humbly suggest that the best plan is for my noble friends not to press the amendment but to consider a simple amendment to Section 29 of the 1991 Act, obliging the court to take into consideration the motive of the crime when fixing sentence. Something on those lines and quite brief would be much more satisfactory and would cover all the bad motives that we all dislike.

Lord Lester of Herne Hill

My Lords, I should like briefly to explain my support for the amendment of the noble Baroness, Lady Flather. I do so with diffidence because I have only sat as a criminal judge for about eight years. As I look around the Chamber I see many noble and learned Lords and many noble Lords who have far more experience than I of the administration of criminal justice. But during the eight years in which I have sat as an assistant recorder and recorder, I have had the difficult task of trying cases in London that in many instances had a racial element.

Having attended the training sessions of the Judicial Studies Board at which senior judges tried to teach me how to become a good sentencer, I became aware of the difficulties which arise through a lack of adequate guidance from the board, the Lord Chief Justice and the Home Office. My attitude towards the first amendment, and for that matter the second one, will be very much affected by whether the noble Earl the Minister is able to give an assurance that the amendments would be effected by administrative means; in other words, that there would be binding guidelines upon judges and the prosecuting authorities to that effect. My understanding is that there are no such intentions to introduce binding guidelines.

The aims of the amendments will be shared by everyone in this House: that of ensuring that racial motivation is an aggravating factor and that a duty of the kind described is placed on the prosecuting authorities. All that one is concerned with is the means.

It seems to me that in the absence of binding administrative guidelines to judges and sentencers at every level and to prosecuting authorities, it is right for Parliament to give such guidance in legislative form. Unless we hear that there are to be legally binding administrative guidelines without the need for legislation, it seems to me that the case for legislation is, frankly, overwhelming.

Lord Lucas

My Lords, the amendments to which my name is attached propose a public demonstration, indeed a public affirmation, of the Government's determination to do something about racism and racial attacks. As such, the provisions would be of great value in a situation in which public morale is at stake. My noble friend Lord Beloff and many other noble Lords made that point in the debate on Amendment No. 146.

These amendments have the added virtue that they are very easy to accommodate within the structure of the criminal law. They are effective and follow established lines. They are relatively uncontroversial and catch all crimes. Whatever crime may be committed with a racial motivation, the amendments catch it.

My noble friend the Minister said, I believe, when discussing Amendment No. 146, that it was important to make sure that at every stage of the process racial aspects were pursued. Yes, that is what the amendments seek to write in letters of fire on the face of the Bill.

My noble friend Lord Ferrers knows that I support the Government's preference for universal and not specifically racial crimes. If the Government wished to do so, they could take the spirit of the amendments of my noble friend Lady Flather as my noble friend Lord Renton suggested or perhaps follow the definition put forward by the Commission for Racial Equality that racially motivated crime is serious because it is, directed against its victims not because of what they happen to own, but because of what they naturally and inescapably are. Such attacks therefore threaten all members of the same minority community, creating a deep sense of fear". The Government therefore could substitute for the concept of racial motivation the concept of an intent to spread fear among the community or a part of it for racial or other motives. To my mind such a route could achieve the universality that the Government prefer; it could preserve the benefits that would flow from my noble friend's amendment and draw into its net similar crimes—as the Minister pointed out—committed against women, homosexuals, the elderly, and indeed on religious grounds, which will be the subject of later amendments.

The Citizen's Charter shows the value of public standards and aspirations in improving the way that the Government and their machinery work. In that spirit, I commend the amendments to my noble friend and hope that he will adopt them in spirit, if not in their actual words.

6.30 p.m.

Lord Irvine of Lairg

My Lords, this is the amendment to which the noble Lord, Lord Renton,—as he said a moment ago—cal led attention in the course of his speech on Amendment No. 146 which I moved. We had a detailed debate on the racial issues at: stake on that amendment and I can therefore express myself briefly. I accept what came from the noble Lord, Lord Renfrew —that is, that this amendment is much less radical than Amendment No. 146, which would have created racial motivation as an ingredient of offences had it found favour with your Lordships' House. Amendment No. 146B was rightly described by the noble Lord, Lord Renfrew, as minimal; but, I would add, of real consequence as well if it is accepted.

I part company from the noble Lord, Lord Lester, in his suggestion that he may be satisfied by a strengthening of guidelines to the judiciary on sentencing, though I agree with him that no such suggestion as a substitute for the amendment is likely to come forward. I find wholly persuasive what was said by the noble Lord, Lord Lucas. It would be a tragedy if we parted from our deliberations on these issues today without Parliament as Parliament sending some clear signal of its condemnation of racially motivated criminality.

I said that I would express myself briefly and I shall make that good. I have two basic points to make in commending the amendment to the House and in supporting it. In my experience also the sentencing decision of a judge is a difficult one and one which causes the most experienced judges great anxiety. It involves weighing a broad range of factors, both aggravating and mitigating. But where the judge is satisfied that racial motivation has been a factor in the commission of an offence of which the defendant was found guilty, then that factor must always—not "may" —be treated as an aggravating factor.

The great merit of the amendment is that the judges shall be left in no doubt that Parliament regards the commission of a criminal offence on racial grounds as something that can never be ignored in sentencing; it should not be capable of being left out in any case at all as a matter of judicial discretion. Parliament rules and I submit that we should send a clear and unequivocal message to Her Majesty's judges that they must take into account racial motivation when they find it to have existed in the commission of an offence.

My second point is this: there is an added advantage if your Lordships accept the amendment. Those minded to racial violence, and there are many such people, will be deterred because they will know that racial violence, of necessity, will—not "may"—be reflected in the punishment they rightly receive.

Lord Lester of Herne Hill

My Lords, before the noble Lord, Lord Irvine, sits down, perhaps I can make quite clear that there is nothing between us. I was simply seeking to say to your Lordships that the amendment puts into binding form the obligations on judges and prosecutors to take account of racial motivation; whether administratively or by legislation does not matter provided that it is a legally binding obligation. It can be done either by the Lord Chief Justice issuing binding guidelines, which would make it an error of law if they were disregarded, or it can be done by legislation.

Lord Irvine of Lairg

My Lords, I am grateful to the noble Lord, Lord Lester. He appreciates that my point is that the time has come for Parliament to speak.

Lord Ackner

My Lords, when I first read Amendment No. 146B, I felt that it was an indication of the obvious and a piece of legislative surplusage. I am quite satisfied that the professional judges are adequately indoctrinated in regard to what should or should not be taken into account particularly by the Judicial Studies Board. What made me change my mind in relation to the amendments is simply this.

As we were reminded, Parliament thought it was appropriate to legislate so that an offence committed while on bail had to be taken into consideration as an aggravating factor. I believe that was directed essentially to the magistrates and that that guidance was thought to be essential in that jurisdiction. If it is essential to put on the statute book another blinding glimpse of the obvious, that an offence committed on bail is an aggravating factor, then, a fortiori, that must apply to the type of offence with which we are concerned.

The second part of the amendment is fit and proper for legislation because, apparently, there are occasions when this material is not provided to the court. It clearly should be and I therefore support both amendments.

Lord Williams of Mostyn

My Lords, I support the amendment on the basis that the criminal law in this country is not a blunt instrument; it is a collection of subtle devices and mechanisms. One of the devices and mechanisms is the infliction as appropriate —for instance, as advocated by the late Lord Justice Salmon —of heavy deterrent sentences. Another is the provision of maximum penalties which are frequently increased and updated. Another is the structure of legislation.

I fundamentally dissent from the proposition put forward by the noble Lord, Lord Lester, that administrative directions would be suitable. I entirely agree with what was said by my noble friend Lord Irvine of Lairg and by the noble and learned Lord, Lord Ackner, a moment or two ago. These matters are too important to be left to administrative directions—far too important. It is not as though we are taking a fresh step. The question of the aggravation of commission of an offence on bail was mentioned; but there are a number of other offences. Speaking at random, one thinks of aggravated trespass committed while in possession of a firearm; one thinks also of the possession of firearms where a particularly aggravating feature is if that possession takes place within a certain number of years of the accused person being released from prison.

The truth is, as the noble Lord, Lord Annan, rightly said, that this is a uniquely vile and poisonous offence. It is not uniquely vile in that its vileness is restricted to the offender; its poison spreads throughout our society. I could see, although I voted for the earlier amendment, that there were legitimate rational arguments against introducing a different type of offence. I think there are no rational or practical arguments against this amendment. The noble Lord, Lord Renfrew, said that the amendment is minimal. I think it is almost minimalist. It is a very modest step in terms of what we look for but its consequences as a symbol are extremely important.

If I may allow myself a moment of nostalgia, the noble Lord, Lord Renfrew, and I were virtually exact contemporaries at Cambridge with the present Home Secretary. I have never found myself able to support the present Home Secretary on any single occasion since I have been in your Lordships' House. But I will say this. He is a man who has set his face throughout the years that I have known him against racial attacks, racial violence and racial discrimination. I would on that basis at least ask the Minister seriously to consider whether the Government would be better advised on this occasion to accept the amendment which has been put forward, which has been supported and which really is not capable of having a sensible argument put against it.

Lord Monson

My Lords, I shall do my best in reply to the noble Lord. The noble Baroness introduced this pair of amendments with great skill and great feeling which impressed us all. However, although the amendments go less far than the amendment moved earlier by the noble Lord, Lord Irvine, I suggest that they are still open to a number of objections.

Contrary to what has been suggested both earlier today and at the Committee stage, unprovoked attacks upon innocent people, all of which are utterly deplorable, happen not only for reasons of race or nationality. Bullies—and we are talking mainly about bullies—attack people for a variety of reasons: for reasons of race and nationality of course, but also because the victims may be unusually fat or unusually small, or possibly because they wear thick horn-rimmed glasses; because they appear to be homosexual; because they are disabled—there was an appalling case in Oxford three or four years ago when people in wheelchairs were beaten up because thugs said that they did not like those they described as cripples—because the victims stammer or have a lisp; or because they speak with an accent which offends the thugs either on the grounds of class or of region. All such attacks are equally wrong and all the motives for such attacks are equally deplorable.

There is a more practical reason for opposing the amendment. Let us take the case of a pub late on a Saturday night when everyone has had rather a lot to drink. Two separate fist fights break out over two football matches which have taken place earlier in the day. The first fight takes place between two Englishmen from different parts of the country over a match between two first division clubs. In the course of the fight many insults are hurled regarding Liverpool, Manchester, West Ham or whatever. The second fight takes place over an international match played between an English club and one from, say, Germany, Nigeria or Italy. The fight is between an Englishman and someone from one of those countries. In the course of that fight a number of racial or national insults are hurled. Is it seriously to be suggested that the sentence passed upon conviction for those participating in the second fight should be higher than that passed upon those participating in the first? The noble Lord, Lord Irvine, seemed to suggest that it should be. I think most people would think otherwise.

Lord Brightman

My Lords, I shall speak with my customary brevity. I was never a criminal lawyer but had I been I would have regarded it as my duty if I were prosecuting to place information showing racial motivation before the court—that is the side note to the second amendment—and had I been a criminal judge I would have regarded it as correct for me to take racial motivation into account as an aggravating factor. For those reasons I would support the amendment.

6.45 p.m.

Earl Ferrers

My Lords, my noble friend has, as usual, made her case extremely well and I can well understand why she feels so strongly on this matter and why she has decided, together with other noble Lords, to put down the amendment. No one could disagree with the importance of ensuring that evidence of racial motivation for any offence is presented to the court. No one could dispute that the sentence which is passed by the court should reflect the seriousness of those crimes. I agree with the noble Lord, Lord Lester, who said that we all have the same views on this and that it is not a question of the same aims: the question is the means. I agree with the noble Lord. I was more concerned when I heard the noble Lord, Lord Williams of Mostyn, say that the amendment was not capable of having a serious argument made against it. I always get nervous when people make those enormously persuasive arguments because it makes one think that there is a fish underneath somewhere.

I should like to reassure my noble friend that the Government are committed to ensuring that there are systems in place, at all stages of the process, which will flag up the racial element. My noble friend Lord Lucas said that the amendment is a public affirmation of what we intend to do. The noble Lord, Lord Irvine, said that we should send out a clear signal by accepting the amendments. I would remind both noble Lords—I hesitate to remind someone as eminent as the noble Lord, Lord Irvine of Lairg—that what we are doing in statute is not making affirmations or signals or statements. We are actually making statute and law which have to be interpreted by the courts. The effect of the amendments would be to specify in statute duties which are already on the courts and on the prosecution. They would not, therefore, seem to add anything to the existing position.

Courts have to take into account any aggravating and mitigating factors when they decide the seriousness of the offence; and there is already a duty on the prosecution to inform the court of any factors which make an offence unusually serious. Racial motivation is clearly one of them. Where the prosecution establishes that an offence was racially motivated, and where the court is satisfied that it aggravates the seriousness of the offence, the court is already required to take that into account. It must, however, also have regard to all the other factors of the offence before it comes to a decision about the overall seriousness of the offence. Was the offence, for example, committed against a vulnerable victim? Was it carried out by a gang? Was it racially motivated? All those factors must be weighed up and balanced against any mitigating factors It would not seem right to single out just one of them, bad though that one may be, as so different from all the others that it ought to be specified in statute.

The noble and learned Lord, Lord Ackner, referred to the fact that the Criminal Justice Act 1993 requires the courts to treat the fact that an offence was committed on bail as an aggravating factor when they consider the seriousness of the offence. That is perfectly true but in that instance we took the view that there were particular features of this type of behaviour which justified making it a statutory aggravating factor in every case. Principally, that was the fact that offending on bail is a direct contravention of the trust which is placed in an offender by a court when it placed him on bail. The Government consider it right that an offender should know in advance what would be the consequences of a breach of that trust.

The courts have made clear that an offence which is racially motivated is more serious than an offence which is not. Like most aggravating factors, it bears in a very direct way on the offence which has been committed. But the position as regards offending on bail was not as clear, and that is why a statutory requirement was introduced in that case. Before the change it was not the case that offending on bail would automatically be treated as an aggravating factor. The Government wanted to ensure that the breach of trust which had been demonstrated by the further offending would be taken into account in every case, even when the type of offence was different.

I agree wholeheartedly with my noble friend that the courts need to be provided with the evidence which will enable them to come to a proper decision about the seriousness of an offence. That is why there is already a duty on the prosecution to inform the court of the full circumstances of the offence and the character and the antecedents of the offender.

I can understand the concern of my noble friend about occasions when, despite the views of the police and the victim that the offence was racially motivated, the prosecution has not presented such evidence to the court. It is clearly right—indeed, it is required by the existing general duty—that such evidence should be brought to the attention of the court. But the Crown Prosecution Service is dependent on others for the information it receives and it has no direct contact with victims and witnesses. It can only present evidence which is in its possession. And such evidence can only be adduced in court if it is admissible within the rules of evidence.

To determine what motivates a person to do what he does is very difficult indeed. It is much easier to prove intent. I fear that, even with a specific duty, as proposed by my noble friend's amendment, it will remain very difficult to gather evidence of racial motivation which could be admissible in court. Rumours, innuendo or local police reports would not be sufficient, and yet the victim and the family will have had their expectation raised that the court would be able to treat the offence as racially motivated.

My right honourable friend the Home Secretary and I have made it clear that we believe that action is required to ensure that the prosecution and the courts may have before them all the information they need. Research is under way on sentencing practices in general and should provide more information about how such evidence is being presented in court and how it is being taken into account.

The noble Lord, Lord Lester, asked whether binding guidelines could be given to the judges. I am bound to tell him that my right honourable friend has no power to issue guidance to judges: that is for the Court of Appeal. Guidelines for the prosecution are a matter for the Crown Prosecution Service. We shall be pursuing that point with the director of the service as an important route to improving the practical handling of these offences. My right honourable friend the Home Secretary made that clear in a major speech on race relations on 4th July at a conference organised by the Commission for Racial Equality.

Lord Annan

My Lords, can I interrupt the noble Earl for one moment? He said that guidance is given to the courts, and I accept his word for that. However, the noble Baroness said that magistrates had received no guidance at all on these matters. Can the Minister comment on that?.

Earl Ferrers

My Lords, guidance to the magistrates would not be for the Home Office to give. It is a matter which should be considered and I shall certainly look into it. I cannot go further at this time.

It is at every stage of the process—not just in court —that evidence of racial motivation needs to be indicated and acted on. It is a matter of tightening the existing procedures in order to ensure that cases are given the right level of attention. And it is a question of ensuring that the police and the Crown Prosecution Service know and understand each other's needs in bringing a prosecution which has a racial element attached to it. I think that this can most effectively be achieved through administrative action rather than by legislation.

I come back to the point at which we started. I certainly have no quarrel with the idea or the thought underlying the amendment of my noble friend Lady Flather. I agree with the noble Lord, Lord Lester, that it is not a question of aims but of means. However, it would be wrong to highlight this one particular factor of all the aggravating factors and enshrine that in statute. That would give it a pre-eminence above all other factors when all other factors, together with this one, should be considered by the judges before sentencing. That is what happens at the moment, and that is the right way to proceed.

Lord Lester of Herne Hill

My Lords, before the noble Earl sits down and since he has been kind enough to refer to my brief intervention, can I clarify the position for myself? I made it clear that my attitude would be guided by whether the Government were able to give an assurance that there were in place clear and binding guidelines on judges and on the prosecuting authorities. I listened carefully to what the noble Earl said. As I understand it, there have been no discussions even with the Lord Chief Justice as to whether new guidance needs to be given. As I understand it, it would not be an error in law for a sentencing judge to breach what is in the first amendment at the moment. As regards prosecuting authorities, we are told that it is a matter for further research rather than any settled intention now to give binding guidance. If I am right about that I shall be very grateful to be told. If not, I suggest that the House needs something more if it is not to give favour to these amendments.

Earl Ferrers

My Lords, I do not believe that in all those cases when guidance is given it can be binding guidance because, by its very nature, guidance is what it says: it is a method of guiding judges as to the course of action they should take. We have no power to issue guidance to judges, as I said. I have no doubt at all that judges will have sufficient guidance and that if they do not have it, they will receive it.

It would be wrong for me to say that there are binding guidelines on these matters. I have referred to the position with the Crown Prosecution Service. My right honourable friend said that he had every intention of pursuing this route to improve the practical handling of offences. Guidelines for the prosecution are a matter for the Crown Prosecution Service. We hope that the guidelines will address these points. I cannot give the noble Lord a firmer answer than that.

Baroness Flather

My Lords, I am grateful for all the support I have had. It has been an interesting experience in another way. Those noble Lords who have found reasons why they cannot support the amendments have said that they despise and abhor racially motivated crimes. They are very upset at what happens to families yet they cannot support these amendments nor are they able to bring forward anything else. It is a very interesting situation, is it not? We had long statements from the noble Lord, Lord Monson, about examples. If there are examples of another form of blight affecting this society, please tell us because that is what we should be debating here and now.

We are debating racially motivated crime because it is a blight on your society which I consider I belong to as well. I want to be proud of it. How can you sit here and tolerate that blight and say that there is every reason not to do this or that? If there is another blight on society where people are treated in that way, please tell us. Would you accept it if your wife and children were treated in that way for no other reason except that they may look slightly different? Would you accept it and tolerate it? I believe that you would not. You would be speaking very differently on this occasion. You would find some way of dealing with that kind of crime. You would not say, "Ah well, there are others like the person in the wheelchair".

At Committee stage my noble friend the Minister gave an example of a woman in a wheelchair who had stones thrown at her. I believe that that is absolutely despicable and so do you. We all do. But are there thousands and thousands of women in wheelchairs who have stones thrown at them? If there are, then we need a special law to protect women in wheelchairs who have stones thrown at them. But every day, when the Bangladeshi women of the East End take their children to and from school, they have stones thrown at them.

We have been told that we do not want any signal or affirmation; in other words, we do not want empty gestures. These are not empty gestures. I was very grateful for the support from the noble and learned Lord, Lord Ackner and also the noble and learned Lord, Lord Brightman, who is not in his place at the moment. They would not support an empty gesture. Nothing is more telling than support for these amendments from the noble and learned Lords. Together, the amendments will clarify a great deal of the grey area that exists at the moment.

I was particularly disappointed that the noble Lord, Lord Lester, went down the road of administrative guidance. I am grateful to the noble Lord, Lord Irvine, for bringing that point out. We do not want administrative guidance. There is plenty of administrative guidance. It makes no impact. It does not create confidence. If your Lordships are minded to do something, then do something which will create confidence in the minds of those who suffer from this kind of blight. I agree with my noble friend Lord Onslow that there are many aggravating factors. This is one of the aggravating factors. Why are we discussing it once more? We are discussing it because a tremendously large number of people suffer from racially motivated crime.

We have statistics which tell us of the thousands and thousands of people who suffer every day from various kinds of racially motivated crimes. I do not want empty gestures, as my noble friend the Minister has said. I do not want affirmations, and I do not want signals. I do want to feel that Parliament has done what it can to create confidence, and to place a duty upon the prosecution and the judges. That is not an empty gesture. It is an important step forward. Since I have had no assurance from my noble friend, I shall take the opinion of the House.

7.2 p.m.

On Question, Whether the said amendment (No.l46B) shall be agreed to?

Their Lordships divided: Contents, 94; Not-Contents, 150.

Division No.3
CONTENTS
Ackner, L.	Clinton-Davis, L.
Airedale, L.	Craigavon, V.
Annan, L.	Darcy (de Knayth), B.
Attlee, E.	David, B.
Barnett, L.	Dean of Beswick, L.
Blackstone, B.	Desai, L.
Bonham Carter, L.	Donaldson of Kingsbridge, L.
Boston of Faversham, L.	Donoughue, L.
Brightman, L.	Dormand of Easington, L.
Carmichael of Kelvingrove, L.	Ewing of Kirkford, L.
Carnarvon, E.	Faithfull, B.
Carter, L.	Falkland, V.

Flather, B. [Teller.]	Monkswell, L.
Geraint, L.	Morris of Kenwood, L.
Gladwyn, L.	Murray of Epping Forest, L.
Glenamara, L.	Nathan, L.
Graham of Edmonton, L.	Nicol, B.
Harmar-Nicholls, L.	O'Cathain, B.
Harris of Greenwich, L.	Parmoor, L.
Hayhoe, L.	Pitt of Hampstead, L.
Healey, L.	Plant of Highfield, L.
Hollick, L.	Ponsonby of Shutbrede, L.
Houghton of Sowerby, L.	Prys-Davies, L.
Huntingdon, E.	Rea, L.
Hylton, L. [Teller.]	Renfrew of Kaimsthom, L.
Irvine of Lairg, L.	Rennell, L.
Jakobovits, L.	Rochester, L.
Jeger, B.	Roskill, L.
Jenkins of Putney, L.	Seear, B.
Judd, L.	Sefton of Garston, L.
Kilbracken, L.	Serota, B.
Kintore, E.	Shepherd, L.
Kirkhill, L.	Stedman, B.
Lauderdale, E.	Strabolgi, L.
Lester of Herne Hill, L.	Taylor of Blackburn, L.
Lockwood, B.	Taylor of Gryfe, L.
Longford, E.	Tordoff, L.
Lovell-Davis, L.	Walton of Detchant, L.
Macaulay of Bragar, L.	Warnock, B.
Mackie of Benshie, L.	Wedderburn of Charlton, L.
Mallalieu, B.	Wharton, B.
Masham of Ilton, B.	White, B.
Mason of Barnsley, L.	Wilberforce, L.
Mayhew, L.	Williams of Elvel, L.
McIntosh of Haringey, L.	Williams of Mostyn, L.
McNair, L.	Wolfson, L.
Merlyn-Rees, L.	Young of Dartington, L.

NOT-CONTENTS
Aldington, L.	Digby, L.
Allenby of Megiddo, V.	Dixon-Smith, L.
Annaly, L.	Downshire, M.
Archer of Weston-Super-Mare, L.	Ellenborough, L.
Arran, E.	Elles, B.
Astor, V.	Elphinstone, L.
Balfour, E.	Elton, L.
Barber, L.	Ferrers, E.
Belhaven and Stenton, L.	Fraser of Carmyllie, L.
Bethell, L.	Gainsborough, E.
Birdwood, L.	Gardner of Parkes, B.
Blatch, B.	Geddes, L.
Boardman, L.	Gibson-Watt, L.
Borthwick, L.	Gisborough, L.
Boyd-Carpenter, L.	Glenarthur, L.
Brabazon of Tara, L.	Goschen, V, [Teller.]
Bridgeman, V.	Gray of Contin, L.
Brookeborough, V.	Gray, L.
Brougham and Vaux, L.	Greenway, L.
Bruntisfield, L.	Hanworth, V.
Burnham, L.	Harmsworth, L
Butterworth, L.	Harris of High Cross, L.
Campbell of Alloway, L.	Harvington, L.
Carlisle of Bucklow, L.	Hemphill, L.
Carnock, L.	Henley, L.
Carr of Hadley, L.	Hertford, M.
Chesham, L.	Hives, L.
Clanwilliam, E.	HolmPatrick, L.
Clinton, L.	Hood, V.
Colnbrook, L.	Howe, E.
Colwyn, L.	Hylton-Foster, B.
Cork and Orrery, E.	Johnston of Rockport, L
Cornwallis, L.	Kimball, L.
Courtown, E.	Kinnoull, E.
Craig of Radley, L.	Lane of Horsell, L.
Craigmyle, L.	Leigh, L.
Cranborne, V.	Lindsay, E.
Crickhowell, L.	Lindsey and Abingdon, E.
Cumberlege, B.	Long, V.
De L'Isle, V.	Lyell, L.
Dean of Harptree, L.	Mackay of Ardbrecknish, L.
Denham, L.	Mackay of Clashfern, L. [Lord
Denton of Wakefield, B.	Chancellor]

Mancroft, L.	Rodney, L.
Manton, L.	Romney, E.
Marlesford, L.	Salisbury, M.
Massereene and Fenard, V.	Saltoun of Abernethy, Ly.
McColl of Dulwich, L.	Sanderson of Bowden, L.
Mersey, V.	Sandys, L.
Milverton, L.	Seccombe, B.
Monson, L.	Sharpies, B.
Moran, L.	Simon of Glaisdale, L.
Morris, L.	Skelmersdale, L.
Mottislone, L.	Soulsby of Swaffham Prior, L.
Mountevans, L.	St. Davids, V.
Mountgarret, V.	Stanley of Alderley, L.
Moyne, L.	Stevens of Ludgate, L.
Munster, E.	Stewartby, L.
Nelson, E.	Stockton, E.
Nickson, L.	Strange, B.
Norfolk, D.	Strathclyde, L.
Northesk, E.	Strathcona and Mount Royal, L.
Onslow, E.	Thomas of Gwydir, L.
Orkney, E.	Trefgarne, L.
Oxfuird, V.	Trumpington, B.
Pearson of Rannoch, L.	Ullswater, V, [Teller]
Peel, E.	Vaux of Harrowden, L.
Pender, L.	Vinson, L.
Perth, E.	Vivian, L.
Platt of Writtle, B.	Wade of Chorlton, L.
Plummer of St. Marylebone, L.	Wakeham, L. [Lord Privy Seal.]
Pym, L.	Wedgwood, L.
Rankeillour, L.	Wise, L.
Rawlinson of Ewell, L.	Wynford, L.
Reay, L.	Young, B.
Rodger of Earlsferry, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.11 p.m.

Baroness Flather moved Amendment No. 146C:

Before Clause 141, insert the following new clause:

("Duty on prosecution to place information showing racial motivation before court

1. .—(1) In relation to a prosecution for any offence it shall be the duty of the prosecuting authority to place before the court any information or material tending to show that the offence was committed with a racial motivation.
2. (2) In this section 'racial motivation' means a motivation on grounds of colour, race, nationality or ethnic or national origin").

The noble Baroness said: My Lords, I shall not speak to this amendment; but I shall divide on it, too. I beg to move.

On Question, amendment negatived.

Clause 141 [Offence of causing intentional harassment, alarm or distress]:

Lord Irvine of Lairg moved Amendment No. 147: Page 116, line 6, leave out from ("offence") to end of line 14 and insert:

("on racial grounds he—

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

The noble Lord said: My Lords, we have had full debates on these racial issues and I shall be brief. I assure the noble Earl that in supporting the amendment I shall not maintain that there are no serious arguments against it any more than I would expect him to borrow a leaf from the book of the noble and learned Lord, Lord Hailsham, and oppose the amendment on the basis that it is seriously intellectually flawed. I shall be more modest in my presentation, as I imagine he will be in his reply.

Clause 141 is a general harassment offence not specifically aimed at racial harassment. It does not meet the case that we urgently require a new offence of racial harassment. There are other objections to Clause 141. There will be greater difficulties in proving the Clause 141 offence than the existing offence under Section 5 of the Public Order Act. Under that section, it is necessary only to prove that the particular behaviour was likely to cause someone to be harassed. Thus the victim does not have to participate in the trial and expose himself to the risk of reprisal. The required evidence can be given by police officers or by local authority officers.

The Clause 141 offence requires proof that someone has been caused harassment, alarm or distress and that will normally require evidence from the victim and therefore expose the victim to reprisals. Although I do not speak to the amendments now, I believe that that is the purpose of Amendments Nos. 147ZA and 147D in the name of the noble Lord, Lord Lucas. If I am right in that, I shall support those amendments.

Moreover, when addressing the deficiencies of the Government's Clause 141, in some cases—for example, graffiti on public walls or racist chanting in the street —there will be no identifiable victim. Therefore, Clause 141 will not even reach those situations. Further, strangely—and I invite explanation backed up by example from the noble Earl—it is a defence for a defendant who has intentionally used threatening, abusive or insulting language to another, which in fact has caused the victim harassment, alarm or distress, that he acted reasonably. How can such conduct be justified as reasonable in any circumstances? I would welcome the Minister giving an explanation by way of example.

Nor do I understand—and the noble Earl gave no explanation in Committee—why such conduct, if committed within a dwelling and causing harassment, alarm or distress to another within that building, does not constitute an offence. Again, I invite the Minister to give an explanation. As a result of the existing deficiencies in Clause 141, that clause does not effectively strengthen the law on harassment in general. Nor does it recognise the need for the effective protection of ethnic minorities. As the noble Baroness, Lady Flather, so eloquently reminded us, their lives can literally be made hell by persistent harassment ranging from verbal abuse, being spat upon and stoned to the posting of excrement through their letter boxes. This Bill does nothing to alleviate the plight of those people.

The addition of trespass and nuisance in the amendments to which I am speaking cater for the kind of behaviour typical of harassment on racial grounds. The amendment will cover activities such as daubing graffiti on walls, pushing excrement through letter boxes, dumping litter and trespassing into a garden or a front yard.

The third amendment provides for punishment of 12 months' imprisonment on indictment. Such a penalty in an appropriate case would appropriately reflect the gravity of some incidents of racial harassment. The noble Earl may say that racial harassment should attract no greater penalty than harassment in general. That is cold comfort to those who suffer racial harassment as a daily blight on their lives. I shall not revisit the arguments that we exhaustively had on Amendment No. 146. I say only that, in the same way as racial violence, racial harassment, selects its victim on the basis of the accident of birth and for that reason it is especially pernicious and merits distinct punishment.

7.15 p.m.

Lord Harris of Greenwich

My Lords, I agree with the noble Lord, Lord Irvine of Lairg. As was said by the noble Baroness, Lady Flather, in the previous debate, we face the situation in which whole communities in East London and elsewhere are living in fear as a result of a series of activities of the kind described by the noble Lord, Lord Irvine. There is a fear of assault, of excrement being pushed through their letter boxes and of fire bombing. Many of those people—often they are women living on their own or with small families— have an inadequate grasp of English and they live in a state of constant fear.

We are talking about a major emerging social problem in this country. It is now more recognised by the police than it was a few years ago and it requires some action as regards the statute book. To sweep the issue aside and not to take action even in this most limited area on the lines as advocated by the noble Lord, Lord Irvine, would be a profound mistake. We are dealing not only with the fear of people living in such communities but also with the social cohesion of our country.

Lord Hylton

My Lords, the noble Earl may just recall that I wrote to him on this subject possibly two or more years ago. He replied in his usual helpful way. But I do not believe that we have made a great deal of progress in that time in preventing such behaviour. I support this series of amendments. If they were accepted by your Lordships, it would show that this country is playing its part in Europe in combating a rising tide of very unpleasant racial behaviour.

Lord Moyne

My Lords, I may be wrong but Amendment No. 147 seems to be worded in such a way that harassment on grounds other than racial grounds would be permitted.

Earl Ferrers

My Lords, the Government's intention in tabling Clause 141 was to provide higher penalties for the more serious cases of harassment, particularly where it occurs on racial grounds. Your Lordships approved that in Committee. I remind your Lordships that Clause 141 states that: A person is guilty of an offence if. with intent to cause a person harassment, alarm or distress, he … uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or … displays any writing, sign or other visible representation which is threatening, abusive or insulting". I should have thought that to push excrement through someone's door would surely be an act which would fall fairly and squarely within that part of the Bill.

The noble Lord said that he would not use the words used by the noble Lord, Lord Williams of Mostyn, in describing his case as "unanswerable" and he requested me not to use the words of my noble and learned friend Lord Hailsham and say that the amendment is seriously flawed intellectually. I assure the noble Lord that I shall not do that. The noble Lord asked me to use more reasonable language. I merely say that the amendments turn the clause on its head. They bring into the criminal law, not the most serious cases of harassment, but the most minor categories of anti-social behaviour, and they raise the penalties way beyond that which Parliament has approved for far more serious offences.

First, I take the extension of the offence to include not just harassment but any trespass and nuisance. It is already an offence under Section 5 of the Public Order Act 1986 to engage in threatening, abusive or insulting behaviour or disorderly behaviour which is likely to cause harassment, alarm or distress. That is the lowest offence of all the Public Order Act offences. But Amendment No. 147 would create an even lower offence by making it a criminal offence to trespass or to cause a nuisance which is likely to cause harassment to the occupant of a dwelling.

We all know of minor irritations between neighbours; for example, garden bonfires or music being played too loudly. These can be very tiresome to a person quietly sitting in his home, but I really cannot believe that these should now become criminal offences. Furthermore, this sort of behaviour would be a criminal offence only where it was committed on racial grounds. That cannot be right. But even if it were, I cannot see how a court is supposed to establish that some minor act of neighbourly irritation was carried out on racial grounds.

As regards Amendment No. 148, the test for that new offence is whether a reasonable person would have suspected such behaviour to cause harassment. That appears to be an explanation of what is meant by "likely" to cause harassment. The courts are already well used to understanding the ordinary meaning of "likely to cause harassment" from its use in Section 5 of the Public Order Act. This additional formulation lowers the test considerably by moving it from behaviour which is "likely to cause harassment" to "behaviour which a reasonable person would suspect would cause harassment". It clearly does not make sense to lower the tests in that way. We would not wish to make a criminal offence which is based on suspicion of the effects of the most minor nuisances.

The noble Lord, Lord Irvine of Lairg, asked what is a "reasonableness" defence. I believe that such a defence would be shouting to alarm a person who you find breaking into your car. The noble Lord said that the provisions do not affect what happens in dwellings. That is perfectly true because this is public order legislation and is not about domestic conduct. It would be wrong to incorporate that into public order legislation.

Then I turn to the penalty—Amendment No. 149. For behaviour which is less serious than anything which is at present in the Public Order Act the noble Lord proposes a maximum penalty of 12 months' imprisonment. Section 4 of the Public Order Act relates to behaviour such as making a person fear the immediate use of violence against him or of provoking a person to unlawful violence. That is reasonable. That is clearly a serious matter and it rightly attracts a penalty of up to six months' imprisonment and/or a fine. But for the very minor behaviour which would be covered by the noble Lord's amendment—for example, lighting a bonfire next door—the maximum penalty would be twice as high—namely, 12 months' imprisonment—and the offence could be tried before a Crown Court. I think that we must keep some sense of proportion in the penalties within this Act. The noble Lord's amendment manifestly does not do that.

The existing Clause 141 covers the gap in the law which has been identified and I hope that the noble Lord, Lord Irvine, will realise that his amendment is not suitable for this part of the Bill.

Lord Irvine of Lairg

My Lords, the House is now well aware of the issues of principle which separate the noble Earl and myself. No point will be served at this stage by rehearsing those differences in any detail because I recognise that there is much merit in concluding before the Dinner Break the amendments which deal with racist crime.

But there is one point which I shall not leave unanswered. The burden of the noble Earl's argument was that, if the amendments are accepted, they will bring minor trespasses within the criminal law. He gave an example of bonfires. He must appreciate that those minor trespasses, as he describes them, become criminal under the amendment only if they are committed on racial grounds. That is the short answer to the objection which he raised.

Having regard to the hour, and having regard to the vote that was secured on the previous amendment, I do not press this amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 147ZA: Page 116, line 7, leave out ("a person").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to my Amendments Nos. 147D and 148B. These amendments are concerned with the tests which a class of offence has to pass in order to fall under Clause 141. Those tests ask: does the worst imaginable form of this class of offence deserve the maximum sentence proposed?

The first test which the Government propose is intent. They contend that someone who harasses but does not intend to harass should not face a prison sentence. I agree with that. I did not always agree, but my noble friend, who kindly wrote me a long and informative letter after the Committee stage, has changed my mind.

The second test that the Government propose is that actual harassment should have occurred. Perhaps my noble friend will give the House a concrete example of a worst imaginable offence which would pass the test of intent but fail the test of actual harm and for which a prison sentence would be inappropriate. I cannot think of one but I can imagine instances where serious crimes would fail this test because victims were too frightened to testify.

Many crimes that carry a prison sentence do not require actual harm to be proved. Some excellent examples are those associated with possession of firearms, where we are to be invited to increase the penalties later this evening. My Amendments Nos. 147ZA and 147D would remove this test of actual harm. I believe that this removal would hurt no one unjustly and might prevent injustice.

My Amendment No. 148B is aimed at another test: the border between private and public acts. As the Bill stands, if I harass my neighbour over the front-garden fence I am in no danger. If I harass him in exactly the same way as he steps out on to the pavement I can be charged. I do not believe that that is the best boundary for the offence. Much grief is caused to minorities by the actions of their neighbours. Therefore, what should the boundary be? It is clear to me that what someone does within his own dwelling is not an appropriate subject for a public order offence.

My amendment would be a little broader. It would exempt acts within any dwelling. One might argue that it should be a bit wider still and exempt, say, acts which are not visible or audible from a third dwelling or a public place. In any event, I believe that the test as it stands is drawn too wide and that it will exempt behaviour that it should catch. I beg to move.

7.30 p.m.

Lord Monson

My Lords, I hope that the noble Lord, Lord Lucas, will forgive me if I do not comment upon his amendments. However, my Amendments Nos. 147A, 147B and 147C have been grouped with his and I should like to take the opportunity to speak to them. As drafted, Clause 141 seems to those few people who have had the time to study it to go somewhat over the top. For example, it provides that a person who on a single occasion intentionally uses insulting words to another person which cause that person distress can, if convicted, be sent to prison for six months. That is an extraordinary infringement of the traditional British right of free speech.

Our tradition of free speech tends to be rumbustious and outspoken and is, by definition, often rude and boorish. Rudeness and boorishness certainly ought not be encouraged; indeed, they should be discouraged, but surely not by bringing in the heavy hand of the criminal law. Social pressures should do the trick.

Despite the let-out, so to speak, of reasonableness —which is a gamble because no one can be sure whether the courts will decide that a particular incident or course of behaviour was reasonable—the clause could inhibit hard hitting exchanges of views at, for example, Speakers' Corner. It could even inhibit free speech in pubs, where passions often intensify after a few drinks. Indeed, I cited pubs when speaking to an earlier amendment.

Let us take motoring, for example. It is an activity where passions always run high. Motorists will freely use four-letter words to other motorists from the safety of the steel box in which they are travelling, in a way that they would never do if they were pedestrians encountering other pedestrians on the pavement—and that has nothing to do with the size or strength of the pedestrian in question. Therefore, as the clause stands, two motorists shouting insults at one another after one of them has dented the bumper of the other's car could, in theory, find themselves going to prison for six months.

My amendments would introduce some minor safeguards. In Committee, the noble Earl explained that, for various reasons, the word "persistent" which implies repeating a particular offence or action more than, say, three or four times, would be unacceptable to the Government. For that reason, I propose instead the word "repeatedly" which means on more than one occasion. Therefore, two occasions would suffice to trigger the offence. That would prevent prosecutions for a one-off verbal incident which might occur when tempers are frayed.

I turn now to the word "grossly". I have no problem with the words "threatening" or "abusive"; indeed, there is little ambiguity about either of them. However, the word "insulting" is another matter given the fact that people are insulted by different things. For example, a motorist may shout to another motorist who has just scraped the paint off his brand new car, "You silly little twerp, you must have an IQ of minus 50!". If the other motorist were six foot tall and a member of MENSA he would simply laugh: whereas if he were five foot two and educationally somewhat backward he would, in all probability, be highly insulted. Therefore, qualifying the word "insulting" by the word "grossly" introduces a necessary element of objectivity and would thereby cut down the number of expensive and unnecessary prosecutions.

Lord Irvine of Lairg

My Lords, I shall be brief. I support the amendments tabled in the name of the noble Lord, Lord Lucas, for the reasons that he outlined so economically. However, I urge the noble Earl not to accept the amendments to which the noble Lord, Lord Monson, has just spoken. I have already made my criticisms of Clause 141 and have sought to define the deficiencies from which, I submit, it already suffers.

If the amendments tabled in the name of the noble Lord, Lord Monson, were accepted, Clause 141 would then become a dead letter. I disagree with the noble Lord's remarks regarding his proposed addition of the word "repeatedly". That word would emphatically not be construed as covering one or two occasions. Indeed, repeatedly connotes a continuous course of conduct. I see. that the noble Lord wishes to respond. I give way.

Lord Monson

My Lords, I am much obliged. Will the noble Lord accept that I took great care to look up the word "repeatedly" in a number of dictionaries in the Library? Indeed, my research confirmed my interpretation of the word.

Lord Irvine of Lairg

My Lords, I have been involved in too many cases in the courts concerning the construction of a word used in a statute to rely upon its meaning in a particular context from the Oxford English Dictionary, which gives a list of possible meanings. I suggest that "repeatedly" would emphatically not be construed as covering one or two occasions and that it would require a continuous course of conduct.

Moreover, in my respectful submission, if there was a single occasion of a person, with intent, using threatening, abusive or insulting words and, as a result, causing harassment, alarm or distress, that should be an offence just as the clause provides. Therefore, I urge the Minister to stand firm and reject the amendments of the: noble Lord, Lord Monson.

Earl Ferrers

My Lords, I like being able to meet the requests of the noble Lord, Lord Irvine of Lairg. He wants me to stand firm and I can tell him that that is precisely what I shall do. All the amendments seek to adjust the balance between addressing the suffering which is caused to the victim and extending the law beyond what is necessary to do that effectively. We believe that we have the balance right.

Amendment No. 147A, which is tabled in (he name of the noble Lord, Lord Monson, seeks to limit the offence to behaviour which takes place "repeatedly". It was certainly our intention to bring forward a clause which would deal with persistent harassment. But we found it impossible to draft a satisfactory definition of persistence which did not create as many problems as it solved. For example, should the repeated behaviour take place within one week, one month, one year, or what? Should previous convictions for the same offence mean that a further offence counted as "repeatedly"? What about other offences occurring at the same time which are more serious? Should they not be considered relevant?

Such problems are all different and, indeed, almost insoluble. For those reasons, we chose to concentrate on the single offence, with the seriousness marked by the intent and the actual distress which is caused to a victim.

There are other amendments which would replace; the word "insulting" with the words "grossly insulting". The wording that we have used is taken from Section 5 of the Public Order Act 1986. I believe that those provisions should stay clearly in step. I am not sure that the courts would relish determining the difference between insulting words and grossly insulting words; and, indeed, the victim would certainly have his own perceptions of the offensiveness of the remarks. I believe that it would be wrong to move away from the terms that are already used in the Public Order Act.

I turn now to Amendment No 147ZA. My noble friend Lord Lucas is concerned that it should not be necessary to prove that the defendant intended to harass, alarm or distress a particular person. I can understand why he may think that such a change is needed—

Lord Lucas

My Lords, I must have used the wrong words. I meant to say exactly the opposite. I entirely approve of the test of intent. Indeed, through the letters that he so kindly sent me, my noble friend has convinced me that the word "intent" should be in the Bill. On that point, I totally support the Government.

Earl Ferrers

My Lords, that is fine. Let us move on, then, to Amendment No. 147D, which would make a substantive change to the new offence as it would remove the requirement that a person actually be caused harassment, alarm or distress. I can sympathise with the intentions behind this amendment. When formulating the offence, we did consider whether it would be enough for the conduct to be likely to have the effects in question, which is the present test under Section 5 of the Public Order Act 1986. However, we concluded that such a test was necessary if a person is to face imprisonment for his conduct.

Victims of racial harassment often already have to be identified or give evidence in court, as there are frequently no other witnesses to the incident. There are provisions in place that enable courts to accept as evidence statements made to the police by victims unable to attend court out of fear. The Government are also proposing a number of initiatives to improve the way all victims and witnesses are treated. But, it is an inescapable fact that it is often very uncomfortable to be a witness in a system of open justice. There are measures we can take to allay this discomfort, but we cannot remove it.

Amendments Nos. 148A and 148C would extend the scope of the new offence to cover intentional harassment that takes place within buildings. Amendment No. 148B would extend the scope of the offence to cover harassment that takes place when the defendant and victim are inside different dwellings. Whilst I can see the potential mischief these amendments seek to address, we have no evidence to suggest that the similar existing restrictions on Sections 4 and 5 of the Public Order Act are presenting any practical problems in dealing with harassment. It is much more common for people to be abused or threatened by others outside the home or in the street. The construction of the new offence reflects the public order nature of the Act on which it is based. We do not believe it would be acceptable to extend the powers contained in this Act into the realm of all domestic disputes, which would be the effect of my noble friend's amendments. Nor do we believe it would be desirable for the new offence to be out of kilter with the rest of the Public Order Act. It is designed to fit in between the existing offences under Section 4 and 5 of the Public Order Act, which have a similar structure.

These are all minor safeguards and adjustments which are proposed to this part of the Bill. However, we think that the Bill has the position about right and that it is better without the amendments. I hope the noble Lords will not press the amendments.

Lord Lucas

My Lords, of course I shall not press the amendment at this time of night; supper is waiting for us. But I should just like to ask my noble friend if he will at some time before Third Reading reply to the question which I asked him, which is: can he name a specific offence which ought to fail the test that actual harassment should have occurred? In other words, what exactly is that test designed to exclude from the scope of this clause? Having said that, I shall be very happy to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 147A to 149 not moved.]

[Amendments Nos. 150 and 151 had been withdrawn from the Marshalled List.]

Lord Annaly

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.