Lords Sitting of 14 June 1994

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ripon.
The Earl of Northesk The Earl of Northesk —Sat First in Parliament after the death of his father.

Iraqi Kurds and Sanctions
Lord Archer of Weston-Super-Mare Lord Archer of Weston-Super-Mare asked Her Majesty's Government:
Whether they will propose to the United Nations that certain engineering spare parts should be exempt from UN sanctions in order that they can be supplied to Iraqi Kurdistan to enable its factories to function again and aid the economy of the Kurdish people.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, humanitarian supplies are exempted from the UN sanctions regime on Iraq. This can be extended to spares for plants producing humanitarian goods. Applications for the import of any such consignments should be made to the Sanctions Committee in New York through United Nations agencies or international non-governmental organisations. Representatives of the Kurdish people in Iraq support and recognise the continuing need to uphold sanctions on Iraq.
Lord Archer of Weston-Super-Mare: My Lords, I thank the Minister for her reply. Does she accept that if we allow these spare parts to reach Iraqi Kurdistan it will lessen the financial burden on the international community? Is this another example of UN bureaucratic red tape, and if it is can the Minister get out her scissors and cut it to shreds?
Baroness Chalker of Wallasey: My Lords, the burden on the international community could be reduced, but we are not prepared to see that happen at the expense of rigorous enforcement of the sanctions regime. Sanctions must apply to the whole of Iraq and we must ensure that all supplies are for humanitarian use only. But wherever I find red tape I can assure my noble friend that I take great pleasure in shredding it in the most effective way I can devise.
LordEnnals: My Lords, perhaps I may encourage the Minister in her statement about shredding red tape by asking whether she will accept two submissions? First, when the UN resolutions were passed with our full support and during all the action that followed, it was never the intention of Her Majesty's Government or of the international community to do damage to the Kurdish people, who have suffered more than anyone else from what has been done by Saddam Hussein. Secondly, does she accept that the British Government have a rather special position because in their wisdom,
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which I warmly support, they have shown an understanding of certain Kurdish needs? That wisdom should be continued in the cutting of red tape. Does she not accept that we have a special responsibility to do something?
Baroness Chalker of Wallasey: My Lords, I am very sympathetic, as the noble Lord knows, towards the cutting of red tape wherever I find it, but I think we have a problem here which we should face up to. One cannot lift sanctions from one part of a country. It is not our intention to damage the Kurds. In fact, I do not believe there is a single European country that has done more than we have to try to help the Kurds. We are in a special position. However, the UN reviewed the sanctions only a month ago: it was not able to conclude that conditions existed for lifting sanctions. That was the only possible outcome. My noble friend and the noble Lord want certain spare parts to be allowed to reach to a cement factory and various other plants. If it can be proved that those parts can be used only for humanitarian purposes, we must go on pressing for that. Certainly, such efforts will have my help.
Lord Dean of Beswick: My Lords, is it not the case, even from what the Minister said, that recent history has shown that the Kurds have suffered more than anyone else at the hands of Saddam Hussein? They are suffering most under the present sanctions and have a terribly low quality of life. The noble Lord, Lord Archer, is correct. This is a special case. Can it not be treated as a special case and cannot the parts involved be moved there as quickly as possible in the interests of everyone concerned?
Baroness Chalker of Wallasey: My Lords, I understand the frustration on this issue. However, it is clear that while we can work very hard at any initiative that is clearly designated for humanitarian purposes we cannot have sanctions lifted simply on the Kurdish area. It would not work because UN sanctions apply throughout Iraq. While we recognise the harsh conditions and the fact that the Kurds are heavily dependent on foreign aid, we have to find another way of solving this rather vexed problem.
Lord Clinton-Davis: My Lords, can the Minister give the House some indication of what is happening about the still fragile cease-fire as far as Kurdistan is concerned because any question of the supply of engineering parts and so on must be predicated on the resolution of that problem? Can the Minister say whether things look as though they are settling down? Is there now some real hope that the cease-fire will emerge into a full and lasting peace?
Baroness Chalker of Wallasey: My Lords, I get very nervous about predicting such things. No sooner does one make a prediction and say that the situation this week is better than when we discussed it a week ago than something else happens as a result of Saddam Hussein's twisted mind to make the situation worse for the people of northern Iraq and indeed the Shia Moslems in the marshlands as well. The situation is better but there are still sporadic outbreaks of fighting and

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bombing. We have to maintain a very careful approach to working with the Iraqi national congress and with all the Kurdish people with whom we have contact and so try to make sure that the pressure is alleviated as much as possible. But there is no easy solution to the evils of this man.
Lord Archer of Weston-Super-Mare: My Lords, does my noble friend the Minister realise that as regards the comments of the noble Lord, Lord Clinton-Davis, Saddam's forces are still outside Erbil and Dahok and that the only reason they do not come over the border is that of British and American aircraft fly over Kurdish land and give the Kurds confidence? Can the Minister confirm that those flights will continue so ensuring that Saddam is not able to come over the border?
Baroness Chalker of Wallasey: Yes, my Lords.

Gas Supplies: Competition
2.45 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they are satisfied that their plans to increase competition in the gas supply industry will be to the benefit of all consumers.
Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, we are satisfied that competition and choice are a spur to efficiency and better tailored standards of service. Their principal effect is likely to be a strong downward pressure on costs and prices for the average consumer. The Government and Ofgas have set out, in a joint consultation document, proposals to enable the benefits of competition and choice to be brought to the domestic sector in an orderly manner.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply. I am rather surprised that he referred to a joint consultation paper—this is the first I have heard of it—prepared by Ofgas and the Government themselves. Will the Minister confirm that Ofgas is supposed to be totally independent of the Government and British Gas? Does he agree that the recent appearance of Miss Spottiswoode, the Director-General of Ofgas, before a committee of the other place on her role in the situation and where she stands concerning the protection of the consumer suggests that the distance between them should be as far as possible?
As regards the Question on the Order Paper, the Minister must be aware of the serious concern of the groups representing the consumer at the lower end of the scale? They say that under the present plans the exercise known as cherry picking may take place where the most lucrative parts of providing gas and energy are syphoned off, leaving the expensive parts to be carried by people at the lower end of the social scale?
Lord Strathclyde: My Lords, I do not agree with the noble Lord. It was right that there should be a joint consultation document. It was published on 9th May by
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my colleague, Mr. Tim Eggar, the Minister for Energy, and the Director-General of Gas Supply. That consultation document makes a number of comments, requests and various observations. I hope that the noble Lord will put those comments forward. As regards cherry picking, it is a fact that the managing director of Western Gas has said that he is confident that he can give domestic customers something like 10 per cent. off their current British Gas bills. That is a very optimistic note.
Lord Stoddartof Swindon: My Lords, is the noble Lord aware that I can remember the arguments against competition that were put forward when the Gas Bill was going through this House? It will be interesting to know why the Government have changed their mind. I ask the noble Lord two questions: can we have an assurance that there will be a unified gas price throughout the country, or will competition mean that some people in one part of the country will be paying more than people in another part of the country for the same product? Secondly, is it true, and does the Minister agree, that it is good for the industry and the country that about 25,000 people in the gas industry will be sacked as a result of government policy?
Lord Strathclyde: My Lords, competition has proved itself in so many areas since 1979 that I find it strange that the noble Lord should question it as regards British Gas, particularly since the more commercial aspects of that enterprise which have been subject to competitive pressure have led to a substantial reduction in prices. The noble Lord will know that in 1986 Parliament decided that there should not be a unified gas price and there has never been a commitment to change that. The noble Lord referred to 25,000 people being sacked. Clearly he knows a lot more than anybody else and I dispute that figure.
Lord Ezra: My Lords, I have been in competition with British Gas for most of my working life. Nonetheless, does the Minister agree that British Gas has supplied the domestic consumer on an excellent basis and that the company has a good record? Is the Minister aware that it has a good back-up service and that it deals instantly with any risk of the escape of gas? Can the Minister assure us that if deregulation is extended to the domestic gas market the service will be at least as good, if not better, than presently provided by British Gas?
Lord Strathclyde: My Lords, with the substantial shake-up of the energy market more and more people will be able to follow the noble Lord's example in competing with British Gas and providing substantial benefits to all types of consumer. I join the noble Lord in congratulating British Gas on its record over recent years in providing, generally speaking, a fine, efficient service and particularly on its safety record. Equally, I join the noble Lord in saying that safety is of paramount importance. Broadly, the present system for handling gas emergencies will continue.
Lord Morris of Castle Morris: My Lords, can the Minister give the House any idea of what the likely

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restructuring costs of the operation will be? If, as many experts advise us, the costs will be huge, who will pay them?
Lord Strathclyde: My Lords, I have no details of the likely costs. That is the kind of investigation that may well take place over the course of the next few months. We can then make decisions on how to proceed.
Lord Taylor of Gryfe: My Lords, does the Minister agree that although the regulation of the industry is important in terms of promoting competition and support for the consumer, the gas industry, and British Gas, is now essentially an international operation? Does the regulator take account of the international role of the gas corporation when making decisions? Is it not time that we looked at the role of regulators in general?
Lord Strathclyde: My Lords, I am glad to have the noble Lord's general support for the principle of competition. He is right in the sense that this is a market that is regulated by the regulator. The regulator looks at the domestic market and has to look at the players who operate within the domestic market. There is nothing to stop those who operate in the domestic market bringing their international businesses to the regulator's attention.
Lord Dean of Beswick: My Lords, as usual the Minister has given some very forthright answers today. Indeed, I recall that last week he gave some forthright answers in an attempt to affect the result of the European election. Does he bear any responsibility for the devastating effect that that had on the Government?
Noble Lords: Answer!

Asylum Claims: Processing
2.52 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
How they propose to reduce delays in reaching decisions on claims for refugee status by asylum seekers currently held for long periods in Campsfield House, Oxfordshire, and other detention centres.
The Minister of State, Home Office (Earl Ferrers): My Lords, priority is given to asylum applications where the applicant is in detention. Measures which were introduced by the Asylum and Immigration Appeals Act 1993 have streamlined and accelerated the processing of all asylum claims.
Lord Jay: My Lords, although it is necessary that each case should be examined carefully, is it really satisfactory—or indeed good—for the reputation of this country that many who are genuine political refugees from oppression and who come to this country in search of civil liberties should find themselves incarcerated not for weeks, but for months, in the conditions of prisoner of war camps, managed in this case by the notorious Group 4 Security organisation from which there was a forcible outbreak only last week?
Earl Ferrers: My Lords, I do not think that the noble Lord is entirely fair. He refers to the centre being
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something like a concentration camp. In fact, Campsfield House is a hostel; it is not a prison. It has accommodation for 200 detainees. It has been extensively refurbished, and an architect advised on the colour schemes for the carpets and the curtains. Our experience is that many people who claim asylum are not asylum seekers, and that only about 3 per cent. of those who applied in 1993 were, in fact, granted asylum.
Lord Jay: My Lords, I most carefully did not say "concentration camp". I said that it was like a prisoner of war camp, which is what it is.
Earl Ferrers: My Lords, I apologise to the noble Lord for getting the nomenclature wrong; but I do not think that what he said was particularly complimentary.
Lord Mason of Barnsley: My Lords, as distinct from asylum seekers, is the Minister not concerned about the numbers of illegal immigrants who are managing to settle in our country? Would not the introduction of a national identity card scheme help to solve the problem?
Earl Ferrers: My Lords, the noble Lord is a great aficionado of an identity card scheme. We are concerned about the number of people who come to this country purporting to be asylum seekers, but who are in fact using the asylum system to try to get into this country. One of the reasons why we introduced the Asylum and Immigration Appeals Act a short while ago was to try to expedite the process. I seem to remember that that legislation did not, regrettably, have the wholehearted support of the Opposition. The fact is that the Act has expedited matters a great deal. Those who are not proper asylum seekers can be dealt with in the proper way, and those who are asylum seekers can be given refugee status earlier.
The Lord Bishop of Ripon: My Lords, is the noble Earl aware that many of those who are held in Campsfield House and elsewhere are in a high degree of anxiety? Does he agree that that anxiety is caused in part by the uncertainty of their situation and not knowing for how long they will be held? Bearing in mind that they are not criminals but detainees, will the Minister undertake to ensure that as much information as possible is given to them about why they are there, how long they are likely to remain there, and how they can gain access to relatives and friends?
Earl Ferrers: My Lords, I understand the anxiety of the right reverend Prelate. I should tell him that only about 1 per cent. of applicants are detained and that only 650 are detained at any one time. It is important that the right reverend Prelate should realise that the detained cases get priority. Detention decisions are authorised by a chief immigration officer. They are now reviewed locally at least every seven days. After one month, the case is reviewed at immigration service headquarters and, thereafter, monthly at increasingly senior levels. Reviews are conducted in close consultation with the asylum division and monthly notifications are sent to detainees to let them know where they stand.
Lord Bonham-Carter: My Lords, am I right in thinking that the Minister said that only 3 per cent. were genuine asylum seekers? If so, can he tell me how he knows that only 3 per cent. were genuine asylum seekers?
Earl Ferrers: My Lords, we keep an account of those who apply for asylum and an account of those who are given asylum. The answer is that in 1992—I think that I said 1993—the figure was 3 per cent. and that in 1993 it was 7 per cent.
Lord Campbell of Alloway: My Lords, to put the matter in perspective, can my noble friend say how many of those detained are awaiting the result of their internal appeal, and how many are there having further exercised their right to seek leave for judicial review?
Earl Ferrers: My Lords, I cannot give my noble friend those particular facts, but I can tell him that the delay before the Act was passed was caused by having to await the original decision of the asylum division, then having to wait for the appeal to be determined, and then awaiting the documentation prior to removal. Before the passage of the Act, that process could take two to three years. Our aim is to resolve the application in three months—and that has largely happened. If the claim is without foundation—in other words, if the person has arrived from a safe third country or the claim was frivolous or vexatious—the appeal is determined within seven days. Other claims are supposed to be dealt with within 42 days.
Lord Ennals: My Lords, if what the Minister has said indicates that the Government are seeking to speed up the process, which is the idea behind the Question, does he accept that not only is there a humanitarian aspect to this, which was referred to by the right reverend Prelate, but that there is also a public relations aspect? Does he accept that there is bad publicity in other countries about the length of time that people are kept in prison circumstances when what they are seeking is freedom?
Earl Ferrers: My Lords, I dare say that they are seeking freedom, but when they come to this country saying that they are asylum seekers, one has to find out whether or not they are asylum seekers. If they come to this country without the proper entry permits, they are not allowed in. When they then say, "Ah, but we are seeking asylum", that has to be considered carefully. I can tell the noble Lord that half of the point of the Act that was introduced in 1993 was to speed up the process. Before the passage of that Act, there were only 50 or 60 officials in the asylum division, which was totally overloaded; there are now 650. That is one of the reasons why the process has been greatly expedited.
Baroness Seear: My Lords, does the Minister agree that the people most genuine in seeking asylum are those least likely to have the documents?
Earl Ferrers: My Lords, that may well be so; but it does not alter the fact that only 3 per cent. of the people
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who applied for asylum received it. The inference was that the other 97 per cent. were not proper asylum seekers.
Lord McIntosh of Haringey: My Lords, the Minister criticised opposition to the Asylum and Immigration Appeals Act. Does he agree that our opposition was to the removal of appeals procedures that already existed? The Government's argument was that this would speed up appeals, and therefore, presumably, reduce the time that appellants spend in custody. Is it not curious, therefore, that in response to repeated requests the Government have been unable to give a figure for the average time spent in detention before an appeal is heard?
Earl Ferrers: My Lords, a number of people spend a variety of time in these places. Some of them are there for one or two months and others for two or three months. The most extreme cases are there for more than 12 months; but that is a small proportion of the total.
Lord McIntosh of Haringey: My Lords, I am sure that the Minister will agree that in order to give evidence it would be proper for him to state that the average time spent in detention before an appeal was heard was, prior to the passing of the Bill, X months and, since the passing of the Bill, it is Y months; in other words, a smaller figure. Cannot the Minister do that?
Earl Ferrers: My Lords, I do not believe that that will be particularly helpful because each case is considered on its merits. Some cases are dealt with very quickly and some take a long time to deal with. The average time is relatively immaterial.
Lord Jay: My Lords, could not the Government reduce the time by recruiting more adjudication officers to deal with these cases?
Earl Ferrers: My Lords, the number of people has risen from 50 to 650. That is a substantial increase by any standards.

Education Acts: Consolidation
3.2 p.m.
Baroness David Baroness David asked Her Majesty's Government:
What progress has been made on proposals for consolidating the extant Education Acts from 1944.
The Minister of State, Department for Education (Baroness Blatch): My Lords, a Bill to consolidate these Acts is in the process of being drafted by parliamentary counsel at the Law Commission. Since, subject to minor amendments by the Education Act 1993, the law relating to further and higher education is comprised in the Further and Higher Education Act 1992 it is proposed that the consolidation Bill should deal mainly with the law relating to schools.
Baroness David: My Lords, I thank the Minister for that Answer but we have in the past been promised a consolidation Act. Is she aware that since the 1944 Act there have been 35 Acts and the 36th is going through Parliament at this moment? It is the 14th Act since

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1979. Only nine Acts have been repealed completely and the 1993 Act repeals quite a lot of all but the most formal provisions of the Education Act 1981. I believe that the Law Commission has been working on consolidation since 1987 but there have been four big Acts since then. Will the Minister give some idea about when this process will be complete?
Baroness Blatch: My Lords, it is not possible to be precise. The noble Baroness has given the catalogue of work that must be undertaken. It is a large task and it will be a large Bill, incorporating material from more than 20 Acts. The noble Baroness also pointed to the fact that some consolidation has already taken place. For example, the 1993 Act consolidated parts of the 1944, 1980, 1981 and 1988 Acts. The work is in hand and the noble Baroness is right in saying that it is desirable. We hope that it will not be too long before we see it.
Lord Renton: My Lords, I am relieved that consolidation is to take place: I congratulate my noble friend. Will she bear in mind the desirability of having a separate statute which deals with the education and training of those with special needs?
Baroness Blatch: My Lords, my noble friend makes a very good point. I can assure him that the whole subject of legislation relating to children with special needs will be part of the consolidation Act.
Lord Simon of Glaisdale: My Lords, is this not a comparatively simple piece of consolidation, probably direct reenactment?
Baroness Blatch: My Lords, I defer to the noble and learned Lord about whether the task is simple. I am told that it is a very large task. I believe that it is time-consuming and complex. I simply take advice from parliamentary counsel that the work is in hand but, of course, other legislation often takes priority.
Lord Glenamara: My Lords, what is the use of consolidating the legislation when a great deal of it will be repealed after the next election?
Baroness Blatch: My Lords, it would be helpful to have that in writing. There is some very desirable legislation on the statute book and I believe that it would be a very retrograde step to consider the possibility of repealing it. It is an important task and the work is in hand.
Lord Judd: My Lords, does the Minister accept that a consolidation Bill will greatly assist the process of repeal rather than having to deal with a whole range of annual Bills, as we have had to do of late? Does she accept that there is a great deal of anxiety and pressure among teachers, governors and parents in respect of the great weight of contentious and disruptive legislation that there has been in recent years and that consolidation will help to clarify the situation? Will she also confirm that the indication of consolidation means that in the years ahead we shall have a moratorium on such legislation?
Baroness Blatch: My Lords, I understand the point that has been made about assisting schools, teachers and
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researchers to facilitate their work when dealing with legislation. We issue a great deal of guidance to help people in that task. Consolidation, where it is possible to incorporate it in Acts, takes place. I can repeat only that it is important work. We believe that it is desirable and the work is in hand.
Lord Campbell of Alloway: My Lords, in view of the talk about repeal, does the Minister remember that Part III of the Act relating to children with special educational needs had the support of all sides of your Lordships' House?
Baroness Blatch: My Lords, again, my noble friend makes an important point. A great deal of legislation is welcomed by the whole House. That includes the Education Act 1944, which I understand has support from the other side of the House. Much legislation, including that dealing with young people with special needs, education and training, the national curriculum and so forth, is desirable. We are talking about the technicality of consolidating legislation passed by both Houses of Parliament.
Baroness David: My Lords, is the Minister aware that when talking about the 1993 Act the Secretary of State referred to it as being the last piece of the jigsaw as regards schooling? During the Report stage of the Bill that is now going through your Lordships' House, the Minister used the same words and referred to the last piece of the jigsaw. Can we hope that we shall no longer have a Bill a year, as we have been doing lately?
Baroness Blatch: My Lords, at the risk of repeating myself, I must say that I cannot pre-empt what will come in any future parliamentary Sessions. I thought that noble Lords opposite were promising a good deal of legislation in place of the legislation we are talking about today.

City of Westminster Bill [H.L.]
3.8 p.m.
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Chairman of Committees.)
Lord Bruce of Donington: My Lords, one of the advantages of the constitution of this place is that it enables the proceedings on Private Bills to receive their final approval in the whole House. Before we give the Bill a Third Reading, there are a number of questions, which are not very long, to which I would like a reply from the Minister.
If noble Lords read the text of the Bill they will see that it is:
"An Act to make further provision for the control of unlicensed sex establishments in the City of Westminster and to relieve the Westminster City Council of their statutory duty to establish a new county primary school at Moxon Street in the City of Westminster".
I hasten to assure the House that as regards the first part, and particularly in view of the recent proceedings of the district auditor, I am strongly in favour of

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encouraging the Westminster City Council down the path of virtue. I most sincerely support any provision that it deems necessary for the control of these rather undesirable establishments.
What rather concerns me is that in the same Bill powers are taken to relieve the Westminster City Council of its statutory duty to establish a new county primary school in Moxon Street in the City of Westminster. Your Lordships will understand that I am entirely innocent of those matters and I have not been present during the proceedings on that Private Bill. But on the face of it, the matters do not seem to be connected. In other words, the desire of the Westminster City Council to be rid of its statutory obligation to establish a new county primary school at Moxon Street does not appear to be closely connected with the powers which it seeks in relation to the control of unlicensed sex establishments.
The council wishes to rid itself of its statutory duty. We know that the Government are very careful about the statutory obligations which they lay upon local authorities; that is, when they are not replacing them by quangos. But I should like some assurance that the Westminster City Council's desire to rid itself of its statutory duty to establish, a county primary school at Moxon Street is in no way connected with the removal from the City of Westminster of politically undesirable inhabitants who are unlikely to vote Conservative in succeeding elections and their replacement by what we should call more politically correct characters.
Are the two connected? The district auditors have already made their comments to which I shall not add. But are the two matters connected? Why was there a need at one time—and there must have been—for the establishment of a new county primary school at Moxon Street which has now, without any explanation to the House at any rate, apparently disappeared?
As your Lordships know, I raise those matters in a spirit of complete innocence. I merely seek an assurance that everything is in order and that when the district auditor makes his final report on all those matters, he will have no cause, even a superficial cause, to refer to the proposal that the council should rid itself of that particular statutory responsibility.
The Chairman of Committees: My Lords, I can only hope that I shall be able to reassure the noble Lord, regardless of his protestations of innocence, that there is absolutely no connection whatever between the two parts of the Bill. The main part of the Bill is devoted to the matters to which the noble Lord referred in his opening remarks when he quoted from the Title of the Bill.
Private Bills do not come before the House without some difficulty. This Bill provided an opportunity to tidy up a situation which needed tidying up. Therefore, the other provision was tacked on to the end of the Bill. The House is acquainted with other Bills which have come before us this Session which included matters that were not directly relevant to the other parts of those Bills. This is one of those occasions.
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I was grateful for the noble Lord's support for what is a very necessary measure in order that Westminster City Council can deal with the unlawful premises which are being used. It has managed to control those which receive a licence, but it is having considerable difficulties in relation to those which have no licence. I am sure that this provision will receive the support of the whole House.
I promise the noble Lord that the other matter is a technicality which needed to be dealt with. Quite obviously the two matters bear no relation, the one to the other.
Lord Tordoff: My Lords, will the noble Lord assure me that there is nothing in this Bill which will prevent tugs of war taking place within the City of Westminster in view of the great success both of your Lordships and the secretarial staff in the annual tug of war last night?
The Chairman of Committees: My Lords, I am not quite sure how the noble Lord managed to introduce what took place across the road last night into a sex establishments provision. His imagination is obviously working very well this afternoon, and I give him the assurance that he seeks.
On Question, Bill read a third time.
The Chairman of Committees: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
On Question, Bill passed, and sent to the Commons.

Local Government etc. (Scotland) Bill
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that it be an instruction to the Committee of the Whole House to whom the Local Government etc. (Scotland) Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 7,

Schedule 2,

Clauses 8 to 18,

Schedule 3,

Clauses 19 to 33,

Schedule 4,

Clauses 34 to 40,

Schedule 5,

Clauses 41 to 51,

Schedule 6,

Clauses 52 to 61,

Schedules 7 and 8,

Clauses 62 to 66,

Schedule 9,

Clauses 67 to 78,

Schedule 10,

Clauses 79 to 94,

Schedule 11,

Clauses 95 to 127,

Schedule 12,

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Clauses 128 to 178,

Schedules 13 and 14,

Clauses 179 to 181.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

Criminal Justice and Public Order Bill
3.16 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Earl Ferrers Earl Ferrers moved Amendment No. 142C:
After Clause 82, insert the following new clause:
("Video recordings
Video recordings: increase in penalties

.—(1) The following provisions of the Video Recordings Act 1984 (which create offences for which section 15(1) and (3) prescribe maximum fines of, in the case of sections 9 and 10, £20,000 and, in the case of other offences, level 5) shall be amended as follows.

(2) In section 9 (supplying videos of unclassified work), after subsection (2), there shall be inserted the following subsection— "(3) A person guilty of an offence under this section shall be liable—

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

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

(3) In section 10 (possessing videos of unclassified work for supply), after subsection (2), there shall be inserted the following subsection—

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

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

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

(4) In section 1 I (supplying videos in breach of classification), after subsection (2), there shall be inserted the following subsection—

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

(5) In section 12 (supplying videos in places other than licensed sex shops), after subsection (4), there shall be inserted the following subsection—

"(4A) A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

(6) In section 14 (supplying videos with false indication as to classification), after subsection (4), there shall be inserted the following subsection—

"(5) A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

(7) The amendments made by this section shall not apply to offences committed before this section comes into force.").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 142D, 173A, 177A, 178B and 178ZCA. We turn now to the video
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amendments. I am sorry that the need to table our main video amendments before the House rose for the Recess meant that your Lordships and others did not have the: opportunity to comment on a draft before the amendments were tabled, but we thought that your Lordships would prefer to have the amendments tabled and to be able to discuss them in Committee rather than for the Government to wait for comments and table the amendments only on Report.
Any comments which your Lordships may make today will of course be carefully considered. If we are persuaded that the amendments which I am proposing are wrong, or that they are capable of improvement, then of course we can further amend them on Report.
By far the longer of the Government's two principal new clauses—Amendment No. 142C—is, I think, the easier one. It is designed to increase the penalties for offences under the Video Recordings Act 1984. At the moment the most serious offences—supplying unclas-sified videos or possessing unclassified videos for supply under Sections 9 and 10 respectively—can be tried only in the magistrates' court where someone who is convicted may receive a maximum penalty of a £20,000 fine. There is no imprisonment for those offences. Under our proposals, however, the offences will be made triable either way. That means that they will be able to be tried in the Crown Court where the maximum penalty will be two years' imprisonment and an unlimited fine. If they are tried in the magistrates' court, our amendment means that, as well as a £20,000 fine, there will be the possibility of imprisonment for six months.
The maximum penalties for most other offences under the Act are increased from a level 5 fine (which is £5,000) to include the possibility of a six-month prison sentence. They will continue to be triable only in the magistrates court.
The increased penalties for offenders will make clear the serious view which Parliament takes of those who break the law on videos, but that is only one of three measures to which my right honourable friend the Home Secretary referred in another place. The second is the British Board of Film Classification's agreement to raise classification standards for videos.
As most of your Lordships know, the British Board of Film Classification is an independent body which classifies cinema films on a non-statutory basis and has been designated as the classification authority under the Video Recordings Act 1984. That second measure will be reinforced by the third, which is the enactment of statutory criteria which the designated authority—that is, the British Board of Film Classification—must take into account when deciding whether or not to classify a given video, and also when it decides into which category a video should be put. It is that third element of the Government's proposals which has attracted most interest, and which I should try to explain.
We consider that it is right to change the law in order to provide firmer guidance for the British Board of Film Classification, both to help it in its difficult task and to help to protect the public. The Government are acutely aware of the considerable concern expressed that violent videos have contributed to crime by providing models

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of bad behaviour for children who are impressionable; and, indeed, by also providing models of bad behaviour for adults. Members of the Committee may recall the concern which was expressed in the wake of the appalling murders of James Bulger, Suzanne Capper and, most recently, Mr. Les Read. The press suggested very strongly in all those cases that the murderers had been influenced by videos. The trial judge in the James Bulger murder case, Mr. Justice Morland, also suggested that exposure to unsuitable videos might have accounted, at least in part, for the behaviour of the two boys, Thompson and Venables, who murdered James Bulger.
As a result, my right honourable friend the Home Secretary asked for police reports on those cases and on what role, if any, the videos had played in those crimes. The police reports did not support the theory that those crimes had been influenced by exposure either to any particular video, or to videos in general, and no evidence about the role of videos was presented in any of the prosecutions. Mr. Justice Morland later made it clear that his comments had been meant as a general contribution to the debate about videos and crime and that they were not based on any evidence at all in the Bulger case. I think that, in any case, it would have been unsafe to draw wider conclusions from such horrifying and, mercifully, such unusual crimes. However, that does not mean that we should not be concerned —and very vigilant—about the content of videos. We certainly should. That is why the Government are bringing forward their proposals today. Although there may be no evidence that videos cause crime, of course they affect people. Films affect people; books affect people; advertisements affect people. There is no reason to think that videos will not affect people. That is why we have the controls which we do, and why we are suggesting that they should be made tighter.
Amendment No. 142D, tabled in my name, lays down the criteria which the designated video classification authority —the British Board of Film Classification—must consider in determining whether a particular video work is suitable for classification and, if so, in which category it should be placed. The criteria are whether any harm may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with criminal behaviour, illegal drugs, violent behaviour or incidents, horrific behaviour or incidents, or, indeed, human sexual activity. Material is covered if it deals with those subjects indirectly as well as directly. A "potential viewer" includes anyone who is likely to see the work in question if it is classified or placed in a particular category and it specifically includes children and young persons who are under the age of 18.
The advantages of that approach are, we believe, that it is consistent with the rest of the video classification system and it leaves the British Board of Film Classification with discretion to decide what to do once it has considered a work on the basis of the criteria which will be laid down in the Bill. If it concludes, for example, that the work will set a bad example to very young children, it need not ban the video altogether but
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it can place it in an age-restricted category. There may be some works which the board believes would have such a devastating effect on individuals or on society if they were released that there should be the possibility of their being refused a video classification altogether, and the clause leaves the board free to do that.
The criteria mean that the British Board of Film Classification must consider who is in fact likely to see a particular video, regardless of the classification, so that if it knows that a particular video is likely to appeal to children and is likely to be seen by them, despite its classification being for an older group, then the board must consider those children as potential viewers. That does not mean that the board must then ban the video altogether. The board will still have discretion on how, or whether, to classify it; but it must bear in mind the effect which it might have on children who may be potential viewers.
The amendment reflects the spirit of Mr. Alton's proposal which he put forward in another place but later withdrew. Moreover, his amendment is reflected in Amendment No. 144, tabled in the names of the noble Lady, Lady Saltoun of Abernethy, and the noble Earl, Lord Halsbury. The requirement that the British Board of Film Classification should consider harm which may be caused to a potential viewer—which is in our amendment—corresponds broadly to the test of,
"psychological harm to a child",
which is to be found in the noble Lady's amendment. However, our amendment goes wider and is not confined to psychological harm or harm only to children. Harm to adults and to society in general can be taken into account. The requirement that the British Board of Film Classification should consider the possible harm to society which can be caused by the behaviour of potential viewers broadly corresponds to the test in the noble Lady's amendment which refers to an "inappropriate model" for children.
Amendment No. 142D requires the British Board of Film Classification to consider the harm which may be caused by a video because of its depiction of five particular subjects; crime, drugs, violence, horror and sex. They may overlap to some extent, and, of course, others may have different suggestions. However, I think that they represent the main areas of concern without all of us becoming bogged down in a lot of unhelpful detail about precisely what may or may not be shown. It is important to bear in mind that such statutory criteria are not intended to be exhaustive. The amendment says only that the board is to consider them,
"among the other relevant factors".
The British Board of Film Classification will remain free to take account of other factors such as bad taste, bad language or offensiveness towards particular groups. For those reasons, I hope Members of the Committee will approve the amendments tabled in my name. I beg to move.
Lady Saltoun of Abernethy: I believe it will assist the Committee if I say a few words now about Amendment No. 144. Its object is exactly the same as that behind the noble Earl's amendment to which he has just spoken. Amendment No. 144 is the amendment which David Alton MP moved in another place but

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which he withdrew on the promise of a government amendment in this place. I tabled it as both a belt and braces operation in case the government amendment seemed inadequate and also to enable us to discuss the subject in Committee in this Chamber in case the government amendment was not forthcoming until a later stage. However, having seen the government amendment and being very happy with it, I shall not be moving Amendment No. 144.
Lord Merlyn-Rees: I am grateful to the noble Lady for her remarks and for the fact that she spoke before me. I shall now address only Amendments No. 142C and 142D. Amendment No. 142C is the penalty clause about which I am sceptical, but I certainly shall not oppose it. I support Amendment No. 142D but would like—as the noble Earl knows, because I wrote to him on the matter—to make some suggestions about the wording for him to consider before the next stage of the Bill.
Given the normal situation that I have taken due note of during my two years in this Chamber, we are usually revising legislation which has come from the other place. However, on this occasion, we are dealing with a new clause because there was insufficient time in another place to deal with it. The Home Secretary suggested to Members of the other place that he would bring forward a new clause in this Chamber to replace what I shall call for shorthand "the Alton clause", and that is what we are now discussing.
I declare an interest which I feel is relevant to the two proposed new clauses; namely, that I am president of the Video Standards Council. At the beginning of the day we can pass legislation in this Chamber, but, at the end of the day, it has to be policed and put into effect. The video industry—an industry employing 50,000 people, which is twice as many as those employed in television and radio—tries to play a part in the matter.
I should like to discuss television and radio because we sometimes ignore in particular what is seen in the home on television and also what is heard on radio and concentrate on the problems that arise from videos. The video industry distributes and makes videos and there are mail order videos and wholesalers' videos. In country areas—areas which I now know better since I retired from another place—vans travel around the countryside distributing videos to villages. Old people prefer to watch videos than to make a journey into a town to visit cinemas and return late at night. Videos are a major aspect of the entertainment industry. However, I suggest that we are perhaps ignoring the entertainment that people watch in their homes on terrestrial and other forms of television.
The industry has its own code of practice with which I will not bore the House. The industry tries to police that code of practice itself. The industry has a staff training video so that staff are aware of the law. It is important that staff should be aware of the law as it stands at the present let alone when the new clause that was introduced by the noble Earl increases the penalties. There is a consultative committee which comprises the head teacher of a comprehensive school and representatives from churches and boys' clubs and
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which seeks their views on certain issues. There is a packaging committee, because I fully understand that the nature of some packaging and some of the notices in shops cause anxiety for some people.
The Video Standards Council, which is a voluntary body, does not award classifications. The noble Earl has already mentioned the British Board of Film Classification. Film classifications are voluntary, but those for videos are statutory. The industry is concerned that often when these matters are discussed there is a mix-up between videos about which people are-concerned and which have been classified and pornographic videos which have not been classified and are easily obtainable. I wonder to what degree these amendments today deal with that matter.
The matter of pornographic literature needs to be considered seriously because that is a problem. The video industry is worried about that problem because it is often tarred with a brush that paints it as being connected with pornographic literature when that is not the case. It is worth a visit to the offices of the British Board of Film Classification to see how the board assiduously looks at all the videos, and indeed the films, and awards a classification, in the case of videos under the terms of the 1984 Act.
I should point out that at the moment under the 1984 Act, which was a Private Member's Bill, the British Board of Film Classification has to take into account the likelihood of video works being viewed in the home. That is already the case. The change which has been proposed today is not new. Often the classification of a film is different from that of a video because one is to be shown in the home. Indeed there are also differences in other respects.
I recommended a film to my son who is in his thirties and has no need of protection from me. I found a particular part of the film very amusing. Not long ago my son watched the film while travelling to the United States on a plane and he discovered that the part of the film which I had said was hilariously funny had been cut out. It had been cut out because there was a captive audience on the plane and therefore the film had been awarded a different classification. This whole business of classification, and the difference in classification applied to entertainment that is to be viewed in the home as opposed to entertainment that is to be viewed in the cinema, is a matter that should be taken into account. One would not have thought that that was so from the discussion that took place on the Alton amendment—I had discussions with Mr. Alton because I understood the nature of what he was trying to do—but already the BBFC has to take into account the fact that a video will be shown in the home.
I would also point out that the video industry in this country is controlled to a far greater extent than elsewhere in Europe, and probably in the world. There is anxiety about the relationship between violent crime and videos. But as the noble Earl pointed out, that relationship is not clear. In the terrible case that arose not long ago, the judge made clear that he was making a general observation because no one knows the relationship between crime and videos or films. I have my own views on the matter. However, when I was

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Home Secretary, one day I would receive on my desk a research document that argued a certain point of view and the next day I would receive a research document that argued exactly the opposite point of view.
No one knows the relationship between crime and videos or films and one cannot trust—if that is the right word—the media on this matter because they look at one report and proclaim, "Ah, at long last academics have seen that there is a connection". However, the following day, they ignore a report they receive which claims the exact opposite point of view.
I know where I stand on this matter. When I was bringing up my children there were certain things I did not wish them to see. There were many things on television and radio that I did not wish them to see or hear. I am sad at the growth of bad language over the past 20 years. I was brought up in a home where, when the men came home from work—I imagine their language at work was pretty strong—they would never use bad language in front of their mother. Bad language has spread in the community in a way that I find difficult to accept. However, the judgment as to what is right and wrong has to be taken by the individual.
I wish to point out a fact that is germane to the way in which we decide the fate of these amendments today; namely, there already is classification. The classification Uc denotes that a film has a universal category and is suitable for everyone. A U classification denotes that a film can be watched by people of all ages. The parental guidance classification cannot be ignored.
If videos are rented, those who hire the videos have to belong to a club. Sometimes an assistant will refuse to provide a video and in such cases a father may enter the shop and say to the assistant, "Do not tell me what my children are going to watch. I want this film in my home and I am going to have it. I am not going to allow a shop assistant to tell me that I cannot have a video in my home". This Committee is quite entitled to support video classifications, but there are individuals in our society who will not be subjected to classifications.
There is a 15 classification and an 18 classification. I hope that the Minister will comment on my next point. I understand there is talk of introducing a 12 classification. That would be yet another classification where, if people ignored it, they would be committing a crime.
I would point out that the existing penalties for supplying or offering to supply an uncertificated video or game, or possessing an uncertificated video or game for the purpose of supply, can already involve fines up to £20,000. People who commit these offences will, under the Bill, face two years' imprisonment. All other offences at present involve fines of up to £5,000.
I shall support the Bill and I would like to think that increasing the fine and introducing a penalty of two years' imprisonment will stop those who supply videos when they should not do so. But the penalty that is now proposed is prison. If a young person enters an off licence and the licensee supplies drink to him when he is not entitled to buy it, all that happens is that the licensee loses his licence. But if someone supplies a video to someone who is not entitled to have it, he will
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end up in prison. I suppose that would be all right if the measure achieved the desired effect, but I wonder whether that will happen. I warn the Government that there is a danger that the law will become an ass.
The TV programme "EastEnders" is transmitted at a time of night when young people are supposed to be in bed. If it is made into a video, it will receive a 15 classification. If the video is shown to someone who is aged under 15, the person who is showing the video could be penalised by having to pay a fine, and/or being sent to prison. However, if it is shown on a Sunday—as it is—on BBC or ITV, a young person can watch the programme without any fear or favour. However, the person next door could be sent to prison for watching a video. I find that extremely strange.
"Morse" was my favourite TV programme and I am sorry that it is no longer shown. It could have gone on forever as far as I am concerned. In video form it would receive a 15 classification, but on TV anyone can watch it at any time. I have some video tapes of the TV "Morse" programmes. If they had a 15 classification and I showed those videos to someone under 15 I could be sent to gaol. But if I told that young person to watch the programme on television, I would be all right. I hope that the noble Earl will consider the matter.
I ask the Committee to consider another aspect of this matter to show my scepticism as regards the extra penalties. Who is going to police this provision? The police have enough to do and I believe that in 1987 an alteration was made to legislation to enable this policing to be carried out by trading standards officers. A year or two ago I went to watch the trading standards officers scrutinise videos at a location in West Yorkshire, my former constituency. Those officers simply do not have the time to police videos. I believe that there were two and a half posts covering the whole of West Yorkshire. Those officers were responsible for seeing whether videos were being sold or rented illegally. Therefore, I hope that we shall hear that there will be more trading standards officers. Otherwise we shall be doing something that looks good on paper but will have no effect in practice. Too often Home Office legislation is introduced to placate the public. Ministers say, "Look what a great job we have done." There is very little change but it looks good.
Incidentally, regarding sales of videos I hope that a close look will be taken at car boot sales. I am advised that car boot sales—although often in aid of charity— are where pornographic and unclassified videos are sold. That is also where videos are sold to people under the wrong classification. Therefore, it is important that the matter should be policed, in addition to having the proposed new clause on the Marshalled List today.
In general I support the new clause. However, I have asked the noble Earl to examine the weaknesses in it. The Alton amendment and the letter which the Home Secretary wrote to Mr. Alton and which was made available to us pointed out the weaknesses in the Bill. I wish to spend a few minutes on the Alton amendment, which has now been withdrawn, and consider how it has been addressed in the new amendment, which I support in general and which the Home Secretary brought forward in response to the feeling in the other place.

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In his letter the Home Secretary explained the classifications. He spoke about inappropriate models. I shall mention the three points which the Home Secretary made. I support him in what he said, not because I belong to the ex-Home Secretaries club but because he knew what he was talking about, having taken advice from the police and others on the amendment in the other place. That amendment looked good but would have been incapable of being put into effect.
The Home Secretary referred to the catchphrase "inappropriate model for children". He said that it presented serious difficulties. He added:
"It is of course highly subjective and immediately raises the question of 'inappropriate when measured against what standard?' If this question could be satisfactorily resolved it would probably be on the basis that the work depicted actions or attitudes which most people in this country would not wish children to adopt. But in absolute terms this would be a very low test. Very many works (indeed I suspect virtually all) would fall into this category by portraying at some point undesirable activity".
He added that the antics of the Artful Dodger in "Oliver" could come into this category, whereas one would not want to stop children seeing a film version of Oliver Twist.
I recall that when comprehensive education was introduced and more young people were taking O-level English in my former constituency a mother complained to me that the left-wing education authority was making her child read books which were undesirable. She was referring to the O-level Shakespearean play for the year; she thought undesirable ideas were being shoved down her child's throat. That is a very subjective valuation. For that reason the Home Secretary said that we cannot have this.
There is also the question of the likelihood of a work causing psychological harm to a child. The noble Earl mentioned that aspect. The Home Secretary said that it is not difficult to imagine lengthy and detailed argument about whether a scene, even in a work of high artistic merit, which frightens a child could be said to cause him or her psychological harm. I can recall children watching the most innocuous of television films in the home and hiding behind the settee because they were frightened. That does not do great psychological harm. I have not noticed that in those I was responsible for bringing up or in my grandchildren.
There is also the important issue of private use. Does that refer to viewing in the home or display other than on a commercial basis? In addition, what is meant by,
"any place to which children under the age of eighteen are admitted"?
Does it mean that the works in question can only be shown in premises to which children are never admitted? There are many other such difficulties. The Home Secretary went on to say that that would be a major departure with significant implications for the freedom of adults to watch what they choose in the privacy of their own homes. There is undoubtedly public concern—which I share—about violence on video. However, 70 per cent. of homes in the country have no dependent children. The amendments would
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affect those homes. On those grounds the Home Secretary said that he could not support the Alton amendment.
At the same time, on behalf of the Video Standards Council, which took legal advice, I wrote to noble Lords and Members of another place pointing out the weaknesses in the Alton amendment. At the end of the day, in my view the matter was summed up clearly by Mr. Tony Blair—and one should not read into that other than that he said it—who declared:
"By imposing a statutory obligation on the board to take the care and protection of children into account but leaving; them with legitimate boundaries of discretion intact, we can meet the public concern while avoiding the pitfalls. That is a sensible way to proceed".—[Official Report, Commons, 12/4/94; col. 140.]
Lord Elton: I believe that I am right in saying that it is the custom in this Chamber to quote Ministers in another place but not Members of another place in extenso.
Lord Merlyn-Rees: I am very sorry about that. In that case perhaps, as the best way of approaching the matter, I may use the words of somebody else. I do not know who said them. I believe that it would be very sensible to say that by imposing a statutory obligation on the board to take the care and protection of children into account but leaving legitimate boundaries of discretion intact, we can meet the public concern while avoiding the pitfalls. That is a sensible way to proceed. I believe that the Government are proceeding sensibly. That is what the Government are attempting to do. That is the basis on which to proceed, and the basis of the new clause. We can add a proper amendment to the Bill. The amendment has been improved.
We took legal advice. Mr. Geoffrey Robertson, whose field this is, raised the question of the word "harm". That word is still in the proposed new clause. He said that it sets a very severe test which would enable the BBFC to justify films containing violence. A film, may shock, disturb or cause nightmares but would not be causing harm. The effect on the viewer would have to be more than transient. The film would have to change someone for the worse. It was put to us that the words:
"to any harm that may be caused to potential viewers"
should be amended to read,
"to any harm that may be caused to a significant number of potential viewers".
The amendment refers to the word "society". It does not attempt, nor could it for reasons which the noble Earl put to us, to establish a link between the viewing of a video work and harm to society. Our adviser believed that the words,
"by the manner in which the work deals with",
should be replaced by,
"by the manner in which the work encourages, incites or causes".
Mr. Robertson indicated that it would appear that the "potential viewer" could be almost anybody. He suggested that the words,
"if a classification certificate or a classification certificate of a particular description were issued"
were superfluous. It would seem that the words are intended to restrict the definition. The words "potential viewer" would enable the court to give the words the widest possible definition. That definition would mean

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that the fact that some parents allow their child to watch a restricted video title and that child molesters use videos to seduce children could be taken into account. A potential viewer could be almost anyone.
I now come to the amendments which the noble Earl has spoken to. I should like to ask the noble Earl that the words appearing in Section 4A(1),
"to any harm that may be caused to potential viewers"
be changed to:
"any harm that may be caused to a significant number of potential views".
The wording of the definition of "potential viewer" gives cause for serious concern. Our adviser suggests that "potential viewer" means any person (including a child or young person) who is reasonably likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued upon the basis that it is supplied and viewed in accordance with its classification.
I do not raise the issue just for the sake of it. The video industry has to police the matter itself. Thousands of shops sell videos. The assistants have to be instructed. The managers of the shops and owners of the firms are concerned about the issue. They need to be much more certain what the words mean. While I agree with the Government and support the Home Secretary with regard to the new clause which replaces the Alton clause—I believe that he has done well on that— nevertheless I hope that the Minister will consider these suggestions before the next stage of the Bill.
On the penalty side, what is being done about some of the stuff received via terrestrial or satellite television? It is precious little. Perhaps precious little can be done because the material comes by satellite. But we ought to concern ourselves with that issue.
The Government have done well. I have made those qualifications which I hope the noble Earl will consider. I hope that when the issue goes back to another place, given the great feeling on the subject there, it will be seen that the Government have done a reasonable job and that the intentions of Mr. David Alton have been carried out in a way which will enable the industry, trading standards officers, and, on some occasions under the Obscene Publications Act, the police to carry out their job properly.
Lord Renton: I do not know the answer to the many questions and doubts raised by the noble Lord, Lord Merlyn-Rees. However, although his speech was so very long, I believe that he has done a service to the Committee in raising some of the issues. In particular, I shall be interested to hear from my noble friend Lord Ferrers on the two somewhat separate points that the noble Lord raised about the showing of videos on television including satellite television.
I wish to challenge the noble Lord on one point. He feels that there is uncertainty of meaning about the word "harm". I do not feel that. I think that many others will believe that in the circumstances in which we pass this legislation it is a very suitable word to use. Surely we must leave some matters for interpretation by the courts. If we start to go into the application of a particular word to every conceivable hypothetical circumstance our
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legislation will become even more long, detailed and incomprehensible than it sometimes is. I suggest that we leave the word "harm" where it is and do not attempt to interpret it.
Lord Merlyn-Rees: Perhaps the noble Lord will allow me to intervene. I have checked my notes. One of the reasons why I suggest that the word "harm" should be altered is that our wording is the wording of the Obscene Publications Act; the wording used by the Home Office is not. Since both pieces of legislation will operate, there will be different wording in each piece of legislation.
Lord Renton: With great respect, although it may be said that it is a fine distinction, there is a distinction between the aims that we and the Government have in controlling video recordings and the much broader concept of the Obscene Publications Act. I have some recollection of the issue because in 1959 when I held the kind of position that my noble friend now holds I had to express the government view on the Obscene Publications Act of that year which broke new ground.
I congratulate the Government on Amendment No. 142D. I believe that they have got it just about right. There is no doubt that there is great anxiety not only among parents but among the public at large as to the potential harm done by videos, whether or not shown on TV. I have no suggestion for improving that amendment. I believe that it is excellent.
However, I am puzzled by Amendment No. 173A. It deals with time limits for prosecution. The general rule of our law is that although in civil actions there is always a time limit of some sort or another, with statutes of limitations and so on, for criminal prosecutions we do not have time limits—nullum tempus occurit regi, if a Latin tag would not be too bold. I do not see the point of a time limit in this context. It could be a way of getting round the law in the way that the amendment is drafted. I may be wrong about it. I would not expect my noble friend to give an immediate answer today. However, I hope that when today's proceedings are over, he will invite his advisers, including parliamentary counsel, to consider the effect of the time limit in subsection (3) of Amendment No. 173A which amends the 1984 Act.
I have this fear. Let us suppose that someone produces a video. Perhaps it has been put on sale and has therefore become public. A police officer, someone from the Video Standards Council or a private individual finds that it is in clear breach of what the Government put forward in Amendment No. 142D. Once that has taken place, there has to be a prosecution either within three years or one year from the date of the discovery of the commission of the offence by the prosecutor. If there is no prosecution, but the offence has been committed, under Amendment No. 173A it appears that after the expiry of that limitation period the video could be produced and published. That would be a simple way of getting around the law: one just has to wait, in the one case for only a year. That would be absolutely ridiculous. I hope that my noble friend will ask his advisers to consider the matter.

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Having said that, I believe that the Government have done a great service with these amendments.
Lord Elton: I add my congratulations to the Government on getting out of a very difficult position in the right direction. They have been subject to advice, apparently well qualified, both to the effect that videos have an effect and that they do not. I understand from my noble friend's speech that the police report surprisingly said that videos did not have an effect. However, the Government have undertaken a reform of the law which will receive the justified support of Members of another place, a matter drawn to the attention of your Lordships by the noble Lord, Lord Merlyn-Rees, in his presidential address. One can be sure that their constituents will support them. In a matter of three weeks 100,000 signatures were collected for a petition against the broadcasting and availability of material unsuitable for home entertainment. It was against that bandwagon that the Government wisely reacted.
Many of us were much heartened by the publication of a report on Video Violence and the Protection of Children by Elizabeth Newson in March this year, to which my noble friend did not refer. As the professor of developmental psychology at the University of Nottingham, supported by signatures of no less than 25 equally distinguished academics and practitioners, she concluded that videos have an effect, that we were naive in thinking that they did not, and that legislation was required to protect children from unsuitable material when parents failed to do so.
I refer to that report only briefly. It included an admission that no one is too clear about the causation of violence in children, or the causation of offending generally in children, and that there should be government-funded serious research into the issue as a matter of urgency to save a great deal of money in the future. I support that for all manner of reasons.
I have only two matters to raise, one narrow and one rather broader. The narrow matter relates to the list in Amendment No. 142D which my noble friend Lord Renton has just formidably endorsed. The list has a characteristic which worries me slightly: it shadows the provisions in Section 2 of the Video Recordings Act 1984 for which I was the Minister responsible in this House. The list is couched in slightly different terms, but there is a specific subsection; namely, subsection (2) (c), which states:
"human genital organs or human urinary or excretory functions".
It is a matter of great distaste and surprise to discover that there are a number of videos in circulation which are aimed at people who are interested in the latter two functions as a means of abusing children in a particularly nasty way.
I wonder whether my noble friend would repeat to me the reasons which I received in correspondence for not extending the list to include those functions. I know that It can be said at first blush that they are caught up by the other human sexual activity which is in the list in Amendment No. 142D under subsection (1) (e). However, from a letter which I received from my right honourable friend the Home Secretary, I understand that
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none of those subjects constitutes human sexual activity. Therefore, they will simply fall into the catch-all of other matters.
I should like some reliable assurance from my noble friend —I am not sure that he is in a position to give it —that those matters will definitely be caught up in the definition by the video licensing authority, when it comes to consider the matter. I am not at all sure that we should not have an extension of the list for that purpose and I shall listen to my noble friend's answer with great interest.
The other point is a much wider and more difficult issue, which was touched on to some extent by the noble Lord, Lord Merlyn-Rees. I had rather more sympathy with that part of his address than with other parts. This country is already flooded with video material to a greater extent than, I believe, any other country in the world and certainly in Europe. The greater part of it is totally uncontrolled, circulating from hand to hand or car boot to car boot. Nevertheless, it seems to me that some fairly dreadful things have been identified and ought in some way to be caught—for example, the video recordings referred to by my noble friend in his address which both appeared to have a close bearing on two recent dreadful murders. I realise the difficulty of retrospection and that once something is on the market with a certificate one cannot change it. One can prohibit its further reproduction for commercial purposes, I dare say, but I hope that my noble friend will consider that. I believe that the public would expect to be protected from the effects of "Child's Play 3" after our work this day, since that is what precipitated the amendments in the first place.
As to enforcement, I am now in complete sympathy with the noble Lord, Lord Merlyn-Rees. I have an interest to declare as vice-president of the Institute of Trading Standards Administration. Aside from that interest, I urge the Government to increase the number of trading standards officers able to invigilate the application of the legislation, even though they have reduced their burden by allowing the bypass provisions to carry out prosecutions in other authorities.
I do not think that I need say more, except that I believe that the Government have done well to go in the direction in which the honourable Member, Mr. David Alton, led in another place. I support them in any method of refining the provisions in the two directions which I suggested.
4 p.m.
Baroness Masham of Ikon: I am pleased to see Amendment No. 142C which will, I hope, be written into the Bill. I should also like to congratulate David Alton, the Member for Liverpool, Mossley Hill, for all his work and powers of persuasion in getting something done about the horrible videos. I sat through some nasty videos which were shown by Scotland Yard in your Lordships' House some years ago. They were the most degrading, violent and awful things I have ever had to watch. I put them to the back of my mind, but I still shudder if I think about them.
As regards subsection (5) of Amendment No. 142C, are the Government satisfied that the nasty videos will

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not leak into circulation from licensed sex shops? Are they satisfied that the penalties are sufficient to deter people from selling them? These videos which I maintain are violent can be damaging to people of any age who have a tendency to be disturbed. I should like to see them all banned for ever everywhere. They are dangerous, disgusting and debase our society. I support the amendment moved by the noble Earl, but I should like to see it made stronger.
Lord Campbell of Alloway: I should like to make a brief intervention. I wish to support the Government without qualification on Amendment No. 142C, the trial either way and the custodial sentence. I wish to support the Government, again without qualification, even having listened to the informed speech of the noble Lord, Lord Merlyn-Rees, with his experience as a former Home Office Secretary of State. Even after having listened to that speech I cannot accept that there is a substantial way in which the Government's provisions could be improved by amendment.
I particularly wish to support the new criteria for suitability and the time limits provision in Amendment No. 173A. As to that, I believe it is possible that my noble friend Lord Renton may have been under a misapprehension. The provision in Amendment No. 142D does not create any offence. It merely involves:
"criteria for suitability to which special regard must be had".
Those provisions are in addition to the one criterion which exists in, I think, Section 4(1) (a) of the 1984 Act as to whether there is a likelihood of home viewing. That extension of the mandatory criteria is of the greatest possible value.
The offences, as the Committee may know, since we are dealing with offences and time limits, are provided for under other sections—Sections 8 to 12 of the Act which deal with the supply of videos of unclassified work, possession of videos of unclassified work, supplying and, under Section 12, the old sex shop provisions. Those are the offences. The proposed amendment does not involve the commission of an offence.
Lord Renton: If my noble friend will allow me to intervene, it is important to get this right. If he looks at Amendment No. 173A, subsection (3) amends the Video Recordings Act 1984. In place of Section 15 of the 1984 Act there is to be a new Section 15, the opening words of which are:
"No prosecution for an offence under this Act".
That means any offence under the Act.
Lord Campbell of Alloway: I quite agree, but I do not think there should be any distinction between us. Amendment No. 142D cannot create an offence; and there cannot be a prosecution without an offence. All that the amendment does is to expand upon the mandatory criteria as to suitability to which the designating authority has to have regard for the purpose of issuing a certificate under Section 7. I do not want to argue the matter in this Chamber. I am either right or wrong about it.
The other matter is that I am grateful to the noble Lady, Lady Saltoun, for withdrawing her amendment.
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But it contains the seed of what could be a certain improvement to the Bill. I am particularly grateful that the amendment, which came from another place, does not and will not find favour with the Committee. Apart from other things, it introduces a system of censorship by certificate which would conflict with the general intent of the Bill. In this context one only has to look at Section 7(2) (c) and Section 12 (the sex shop provision) to appreciate that. But there is merit in this amendment —although it would have to be considerably redrafted.
If we take subsections (1) and (2) and marry them in one context, that part of the amendment contains the proposition that we should create a new offence of permitting children under the age stated in the certificate —as the Committee knows, that age need not necessarily be 18; it can be a lower age—issued under Section 7(2) (b) of the Act as it stands to view the video. It should be an offence of permitting children under the age stated to view the video at any place, which includes their home.
I regard this matter, as does the noble Lord, Lord Merlyn-Rees, as one that we cannot conceivably debate today. It is a difficult subject, and one which involves invasion of privacy. But on the other hand, it involves the protection of children from irresponsible or sadistic parents. There is not time to consider the issue, but I merely put it forward as something that we might extract from the jettisoned amendment and consider at some other time.
There are many other things that I wanted to say, but I shall not say them. I do not want to take the time of the Committee. By and large, subject to the reservations that I have stated, which are very few, I think that on this matter the Government have done an excellent job and I support them up to the hilt.
4.15 p.m.
Lord Wigoder: I, too, should like to pay tribute to my honourable friend Mr. David Alton in another place, who pursued this issue with such persistence that eventually the Government have brought forward these proposals at this late stage. I welcome the proposals, although I have to express a feeling of sadness that yet another imprisonable offence is now being created to add to the many others that have been created during the course of the passage of this Bill—which is liable to give rise to increasing pressure upon the prison population. I accept, however, that there are reasons for doing so in this case.
I have only two comments. First, there is, I believe, scope for legitimate, well-informed and well researched argument and discussion as to what harm and what degree of harm can be caused by videos displaying the various types of behaviour set out in the new clause in Amendment 142D. There can be legitimate discussion of that issue. But what is perfectly clear is that there are no conceivable circumstances in which portrayal of the kind of behaviour that is set out in that clause can have any beneficial effects. We have gone a long way past the days—10 or 20 years ago—when in obscene literature cases self-imposed experts would come forward and argue that the more outrageously obscene literature was, the less likely it was to corrupt and deprave, and indeed

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the more likely it was to have positive, beneficial, constructive effects on certain types of individuals. Arguments of that kind gave rise to a number of totally unwarranted acquittals in various cases at that time. We have gone past that day. I do not believe that anybody would now seriously argue that behaviour of that sort, when shown on video, can possibly have any beneficial effect.
I shall make only one other comment. It is of course quite conceivable that in a film there can be a fleeting moment of hard porn or outrageous horror which passes us by so quickly that it perhaps has very little effect on the viewer. But with videos the situation now is somewhat different. Although those of us who are grandparents may find ourselves quite incapable of operating the various devices that control the machines, our grandchildren all know perfectly well how easy it is when they come across any such moment to stop the video, play it over and over again, and play it in slow motion and at varying speeds to produce a totally different effect from the one that it might have if it were simply played straight through at the normal speed once and once only in a cinema or on television in the ordinary way. I believe that legislation of this kind is necessary. I approve of it in principle and I support it.
Viscount Cross: I should like to speak very briefly to Amendments Nos. 142C and 142D. There are unfortunately many handicapped people in this country who see violent videos, think they are real life and act accordingly. And then, what about the rest of us? What do violent videos do for beauty, truth and goodness? What do they do for the rule of law, "back to basics" and family life? Not very much, I think.
I understand that the President of the United States has requested the makers of violent videos not to make them. May I with great respect suggest that Her Majesty's Government should do the same? I believe that violent videos are evil.
Lord McIntoshof Haringey: I should say first that this is not an issue on which my noble friends would be whipped. This is an issue of personal conscience and Members on these Benches speak for themselves. Having made that point, what I shall say, speaking for myself, is constrained in two ways. First of all, I recognise the part which my honourable friend Mr. Tony Blair played in the formulation of these amendments. He and Mr. James Ferman, of the British Board of Film Classification, played a considerable and active part in the discussions that took place prior to the formulation of these amendments. Therefore I think it would be fair to say that the amendments would have his support when they go back to another place.
I am, however, constrained by the fact that it is on the record that I opposed the Video Recordings Act 1984 quite persistently. There were only three of us who did so—I include my noble friends Lord Houghton of Sowerby and Lord Jenkins of Putney—but we kept the House up late trying to persuade your Lordships, with no success whatever, that to intervene in what people do, read or look at in their own homes is an infringement
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of human liberty. I would be seeking to deceive the Committee if I pretended that my views on that matter had changed.
We are a revising Chamber and therefore we must look at these clauses in some detail. Indeed, we have done so for the last hour and my noble friend Lord Merlyn-Rees, who claimed that he was supporting the amendments, then subjected them to the most devastating criticism. But I think we also ought to look very briefly at the background. The Conservative manifesto of 1992 claimed that we have the strictest video censorship in the world, and the Home Secretary repeated that claim earlier this year. I think it is true. We have a censorship system which criminalises not merely the supply of disapproved-of video recordings but also the possession of such recordings. We have a censorship' system which controls not merely obscene publications but also indecent publications.
We have a system which provides, for example, that when pornographic films of young people are issued the burden of proof of the age of the person photographed falls not, as normal, on the prosecution but on the defence. We have the possibility, which is increased in Clause 80 which we have already agreed, of arrest without warrant and of police raids on people's homes to investigate what they possess in the privacy of their own homes. In other words, we have gone a good deal of the way towards the powers of George Orwell's "thought police" and a good way towards the kind of censorship described in "Fahrenheit 451". We have to ask ourselves why, with the extreme video censorship system which we have in this country, it is thought necessary to seek these new amendments.
I share the views which have been expressed particularly by my noble friend Lord Merlyn-Rees and the noble Lord, Lord Wigoder, about the undesirability of creating large numbers of new offences, and not only new offences but new imprisonable offences. That is my fundamental objection to Amendment No. 142C. So far as Amendment 142D is concerned, tributes have been paid to the Government for the way in which they have avoided the pitfalls of the Alton amendment; but I suggest that there are a considerable number of pitfalls left in the amendment. The proposed new clause refers to "potential viewers" when surely it should be referring to "a significant number of potential viewers". My noble friend Lord Merlyn-Rees made that point, on advice, and I am sure he is right about that.
In new Clause 4A(1) (a) and (c) the reference is to "behaviour or incidents". If that were to be "acts" rather than "behaviour or incidents" it would exclude the prohibition on words and it would be a great deal more precise and more effective than it is now.
Lord Campbell of Alloway: I thank the noble Lord for giving way. I think, with respect to him, that he was wrong when in saying that the amendments create new offences. I do not think, with respect, that they do. What they do is to up the sentence —there is custodial sentence and trial either way. I do not think that any new offence is created. Those in existence stand.
Lord McIntosh of Haringey: I may have been imprecise in my wording, in which case I apologise.

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What I meant was new imprisonable offences, and I thought I had made that point. Then again we have in new Clause 4A(1) (c) the reference to "violent behaviour or incidents". Violent behaviour takes place in boxing matches and rugby matches. Are these to be included in the scope of the video recordings legislation? Worst of all, so far as new Clause 4A(1) is concerned, it equates, by including them in the same list, human sexual activity with criminal behaviour, illegal drugs, violent behaviour and so on. I suggest to your Lordships that human sexual activity is a good thing. It is a desirable thing. We are all here because of it, and it ought not to be lumped in with criminal behaviour, illegal drugs and horrific behaviour or incidents as something which could fall foul of the law. My noble friend Lord Merlyn-Rees—
Lord Avebury: Will the noble Lord forgive me for intervening? It is not human sexual activity perse which is dealt with in this clause but the manner in which the work deals with human sexual activity. In the vast majority of cases the amendment is not going to apply; it is only if the activity is dealt with in a manner which is objectionable.
Lord McIntosh of Haringey: I do not want to engage in dialogue with the noble Lord, but what is there about the depiction of human sexual activity and in what manner can you deal with such activity as to cause harm? If somebody says "rape", rape is violence. It is not the same thing as human sexual activity as such. This is human sexual activity which is by definition, I suppose, not violent, horrific or criminal, because those are covered in the other parts of the new clause.
Lord Elton: May I just invite the noble Lord to read what I said in my brief intervention about human genitalia, defecation and urinary functions? Those are not violent but they are the cause of considerable abuse of children.
Lord McIntosh of Haringey: I listened very carefully to what the noble Lord said. I was not proposing to comment on it. If there is anything that needs to be commented on later, I will certainly do so.
Again, my noble friend Lord Merlyn-Rees has criticised the definition of "potential viewer" as being very wide indeed. Is it merely meant to include any person; for example, a person who is already mentally disturbed? Can we really run a censorship law in such a way as to deny access to videos to all people on the ground that they might have a deleterious effect on those who are mentally disturbed? Then again, who is likely to view the video? I am sure my noble friend will agree that at least the word "reasonably" should be included because the supplier is going to be in an impossible position. How is a supplier to know, if he sells a video work to an adult, whether the adult has a child in the household? Is it the supplier's responsibility to check whether the adult has sufficient control over the child to see that they do not view undesirable works?
I am sorry but I do not find these amendments satisfactory. I think they go far too far towards meeting a point which I do not fundamentally believe to be
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justified and they go far too far in the direction of interfering with what we do in the privacy of our own homes. Personally, not on behalf of my party, I regret them.
4.30 p.m.
Earl Ferrers: I think the noble Lord, Lord McIntosh of Haringey, stands alone in his disapproval of the amendments, but of course he is entitled to have his view. This has been a very difficult area indeed in which to try and legislate. Mr. Alton had a shot at it in another place. The Government considered his proposals and we have now come up with our proposals. I am delighted that so many of your Lordships should have approved of them. My noble friend Lord Elton congratulated the Government on getting themselves out of an awkward position and in the right direction. I think he put it very well, if I might say so, because it is an awkward position when you are trying to legislate on this kind of subject. My noble friends Lord Campbell and Lord Renton approved, as indeed in general did the noble Lord, Lord Merlyn-Rees. The noble Lord, Lord Wigoder, also approved, even if he said he found it difficult to work his video. I understand that. He said that his grandchildren can do it quite easily; it just shows where the intelligence of his grandchildren comes from. I have difficulty myself because I find that people will unplug the wretched thing in order to put the Hoover in, which of course completely throws the video; and then you have to lie on the floor for half an hour in order to readjust it. So I do have a great deal of sympathy with the noble Lord, Lord Wigoder, from that point of view.
I also agree with my noble friend Lord Cross when he said, in a short but pithy intervention, that the President of the United States had asked people not to make these kinds of videos. I have a great deal of sympathy with that. I just wonder what it is that makes people want to make horrible, terrible and destructive videos. I have sometimes wondered whether it is not possible to stop them doing such things, but how can you stop people creating what to somebody may be acceptable? You then walk straight into the areas of censorship. That, of course, is difficult for governments, or for anyone else, to do.
The answer is that nobody knows the answer to this problem. Plenty of research has been done and I was grateful to my noble friend Lord Elton for referring to research carried out by Professor Newson, who said that there is evidence that people are affected by videos. That is an interesting piece of research. The fact is that nobody knows exactly how people are affected. I have always taken the view that you are only affected by three things in life: by what you see, by what you read and by what you hear. Very few other things actually alter people's opinions. That is why, when you are sent to school, you are given good books to read in order to edify the mind. Of course, the converse must be applicable: if you are given bad books they sully the mind.
Why do people spend so many millions of pounds on advertising on television? They do so because they know that when people see something that attracts them, they are attracted into receiving the message and

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carrying it out. I just find it unbelievable to think that what people see on videos and films does not affect them in some way or another. You can never quantify how that is achieved, or what is achieved; but it is a fact that what people see and hear affects their attitudes, their behaviour and what they think. I was only surprised that the noble Lord, Lord Merlyn-Rees, thought he has heard something hilariously funny; that is, what surprised me was the fact that he said it had been cut out of a video that was on an aeroplane, which he watched. I just wonder what kind of video it was: it must have been pretty hot to have cut out the hilariously funny remark. However, he seems to indicate that it was not very hot. I only hope that we may perhaps have the advantage of hearing more details on some other occasion of what the passengers in the aircraft had been denied.
I am grateful to your Lordships for the views put forward today because these are very important matters and it is not possible to have any form of censorship. But one has to try to draw the line somewhere. People expect the line to be drawn somewhere, and as I said earlier on, we shall certainly consider all that your Lordships have said this afternoon to see whether any improvements can be made.
My noble friend Lord Renton said that he did not like the time limit in Amendment No. 173A. That merely replicates existing law. The three-year time limit is currently to be found in the Video Recordings Act 1993.
The noble Lord, Lord Merlyn-Rees, made a number of very important comments. He was courteous enough to write to me on behalf of the Video Standards Council with two proposals to which he referred. Those were that the British Board of Film Classification should only have to consider harm which may be caused to a significant number of potential viewers, and that potential viewers should only include those viewing in accordance with the legal classification.
The first of those proposals would mean that the British Board of Film Classification need not take into account the possible harm that could be caused to a very small number of viewers if the great majority of viewers would not be affected. The second would mean that the British Board of Film Classification need not consider the possible effect on under age children of a video which was placed in an age restricted classification but which children were in fact likely to see. One immediately thinks of the position of a video which is perfectly suitable for an adult to have which he takes into his home and which the child then subsequently sees. It is very difficult to allow for legislative action to be taken. In the end, that is a matter of parental responsibility and over this issue parental responsibility is enormously important.
The difference between the Government's approach and the approach taken in another place by Mr. Alton is that the British Board of Film Classification will not be compelled to ban on video meritorious films which might have a harmful effect on a very small minority or on young children who would not be watching and who should not be watching. Under our proposals the British Board of Film Classification must consider any possible harmful effect of a video and then it has to make up its mind how or whether to classify, using its discretion.
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That is different from the position in the Obscene Publications Act 1959, which prohibits, for example, the publication of articles which have a tendency to deprave and corrupt those who are likely to see them and where it therefore makes sense to rule, as the courts have done, that this must mean a significant number of those likely to see the articles—and not just one exceptionally corruptible viewer. I agree with my noble friend Lord Renton that it is difficult to get into the minutiae of these things. It is difficult also to equate what we are trying to do over video recordings with the Obscene Publications Act. They all have a part to play in the general panorama of the problem of what affects people, but it is difficult to equate the two exactly.
It would be illogical to exclude the consideration of certain types of harm, or certain types of viewer in the case of the video criteria, especially as the statutory criteria are not exhaustive and the British Board of Film Classification would therefore remain free to take them into account in any case. Everyone agrees that the British Board of Film Classification should be able to carry on classifying good films for video even if they may be unsuitable for children or for a minority of other viewers. Our amendment ensures that it can do that. It is then up to the parents to make sure that their children do not get hold of that which they should not get hold of.
My noble friend Lord Elton wrote to my right honourable friend to inform him that he wanted to make two points about the Government's video classification criteria. His first point was that the proposed classification criteria do not cover exactly the same ground as the existing criteria in Section 2 of the Video Recordings Act 1984 for determining whether or not a video work is exempt from controls. That section provides that a work which is prima facie exempt forfeits its exemption if it depicts to any significant extent human genital organs or human urinary or excretory functions. My right honourable friend explained in his reply to my noble friend that it is true that the list of matters which the British Board of Film Classification is to consider does not contain a directly equivalent category. But that is because of the entirely different functions of the exemption criteria and the classification criteria.
The proposed classification criteria in fact go very much wider than do the exemption criteria. The exemption criteria determine for the purposes of the criminal law whether a given work is to be exempt from classification. There is no discretion about exemption. Either a work is, as a matter of law, exempt, or it is not exempt. That is a matter to be determined ultimately by the criminal courts. It was therefore thought necessary to provide explicitly that videos which show human genitalia, urination or defecation are not exempt from controls. Strictly speaking, none of those subjects would have been subsumed under a broad category such as human sexual activity.
The classification criteria, on the other hand, indicate broad areas which the British Board of Film Classification will be required to look at in order to consider whether the way in which they are depicted in a given video work might have a harmful effect on

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potential viewers or on society. These criteria will not be exhaustive and the British Board of Film Classification will remain free to take other matters into account. The classification criteria have no repercussions in the criminal law. Therefore they have therefore been drafted in broad and in general terms. It is our view that it was not necessary to refer explicitly to the depiction of human nudity in this context, or more specifically to genitalia, urination or defecation, as that is not a broad subject area and is covered by the discretion with which the British Board of Film Classification will have to consider any other matters.
My noble friend also asked that the Government should think again about making the classification criteria operate retrospectively, at least in certain cases. My right honourable friend has considerable sympathy with that point of view. He has considered the matter very carefully and takes the view that a system involving retrospection simply cannot be made to work very well.
The noble Lord, Lord Merlyn-Rees, asked whether there would be an additional age-12 category for video. I understand that there has been discussion between the British Board of Film Classification and the industry about an age-12 category. But that is not a matter for the Government. I understand that such a category already exists for cinema films.
The noble Lord was also concerned about the video of "Morse" and the effect that it might have on an under-age child. The offences in the Video Recordings Act relate to the supply of videos for gain. No one commits an offence if he shows a video in his home to an under-age child.
He also put to me a number of questions about the resources available for trading standards departments to enforce the new legislation. That point was of concern to my noble friend Lord Elton. It is a matter for local authorities. They have to determine the priority to be attached to those duties. I have no doubt that those authorities are well aware of the wide public concern about these matters when they decide on the allocation of their resources. The decision will be up to them.
Reference was made by the noble Lord to the problems of controlling material which is broadcast by terrestrial and satellite television. The control of material broadcast by television is the responsibility of my right honourable friend the Secretary of State for National Heritage. I shall ensure that the noble Lord's comments are brought to his attention, although I understand that he has already had discussions on these matters with the broadcasters.
I apologise for having made a rather more protracted speech than might have been desirable at the end of this debate. It is a very difficult and sensitive area. I felt it right to try to explain what the Government had in mind. I repeat that we do not have a monopoly of wisdom in these matters. We tried to accommodate the views of Mr. Alton in another place, but they were views which we thought on consideration would involve measures which would be too draconian and would not work. I
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like to think that these proposals are better and more appropriate. I hope that the Committee will approve them.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 142D:
After Clause 82, insert the following new clause:
Video recordings: criteria for suitability to which special regard is to be had
("After section 4 of the Video Recordings Act 1984 there shall be inserted the following section—
"Criteria for suitability to which special regard to be had.

4A.—(1) The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with—

(a) criminal behaviour;

(b) illegal drugs;

(c) violent behaviour or incidents;

(d) horrific behaviour or incidents; or

(e) human sexual activity.

(2) For the purposes of this section—

"potential viewer" means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued;
"suitability" means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description;
"violent behaviour" includes any act inflicting or
likely to result in the infliction of injury;
and any behaviour or activity referred to in subsection (1) (a) to (e) above shall be taken to include behaviour or activity likely to stimulate or encourage it." ").
On Question, amendment agreed to.
4.45 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 143:
After Clause 82, insert the following new clause:
("Sexual offences against children outside United Kingdom

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

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

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

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

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

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

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

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

The noble and learned Lord said: The noble Lord, Lord Hylton, who was kind enough to add his name to this amendment and who stayed in the Chamber last week until a very late hour in order to participate in the debate, has asked me to express his regrets that perforce he cannot be in attendance today. To those Members of the Committee who are not familiar with the background, the proposal may appear surprising. It proposes to confer on the criminal courts of England and

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Wales and those of Scotland jurisdiction to try and to punish certain offences committed abroad by United Kingdom citizens.
Normally, this country has been content to leave offences committed in other countries to the courts of those countries, although there are exceptions: Section 9 of the Offences Against the Person Act of 1861 provides that homicide committed by a British subject abroad may be tried in the courts of this country; and Section 134 of the Criminal Justice Act 1988 makes a similar provision in respect of torture by a British subject wherever committed.
Notwithstanding those precedents, I should not make a proposal of this kind had there not been a situation so compelling that it requires a remedy proportionate to the evil which has evoked it. A few years ago it became apparent that in some cities, notoriously in parts of Asia and particularly in Bangkok, child prostitution had reached such proportions that it had become a major industry.
Children make their way to the city in a variety of ways, all of which arise from poverty in the surrounding countryside. Some children are turned adrift by their families who cannot afford to keep them. Some are sold by their families to people who simply deal in children. Some are handed over on the assurance that there are those who are prepared to adopt them and give them a better life. Some are orphaned and make their way to the city in the hope of finding food and shelter. Some are simply kidnapped.
On their arrival in the city, those children who are in the control of an adult are simply sold. Those children who are not are rounded up by people known locally as the "fishermen". Then the children are sorted out. Some are sold into slavery—I nearly said virtual slavery—to some of the surrounding industries. The attractive ones are taken to brothels where they stay until they die either from disease or simply exhaustion. The brothels are not there to satisfy a local need. They are a tourist attraction. Paedophiles from the industrial world come to spend a holiday in the child brothels. There are tour operators in western countries who advertise scarcely disguised and sometimes not at all disguised holidays for that purpose.
Some years ago some people in Thailand formed a group whose aim was to make the situation known. It quickly became clear that not all the authorities were likely to apply themselves to stamping out what was in fact a source of foreign money. The foul tourist trade needed to be tackled at its source and the place to campaign was not in Thailand but in the West. An organisation was formed which was called End Child Prostitution in Asian Tourism, which, in the fashion of our day, is now known by its initials—ECPAT. That group addressed itself to the international community and particularly to Western governments. The international community was horrified by what it heard and the response has now assumed the proportions of a crusade. The Convention on the Rights of the Child, adopted by the United Nations in 1989 and ratified by the United Kingdom, includes an undertaking by states party to it to protect children from sexual abuse— Article 19; to take all appropriate methods to end the exploitative use of children in prostitution or other
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unlawful sexual practices—Article 34; and to take all appropriate measures to end the traffic in children— Article 35.
In 1991 the United Nations Human Rights Commission appointed a special rapporteur, Professor Muntharbhorn, who recommended, among other measures, that the criminal jurisdiction of the countries of origin of the tourists should be extended to cover the acts committed abroad by their nationals. Incidentally, he also suggested the stationing of police personnel in countries where there is a known threat to children. That suggestion was adopted by Sweden in Bangkok and Manila. But that is not part of the proposal which is before the Committee this afternoon.
In 1992 the United Nations adopted a programme of action to combat the sexual exploitation of children, specifically providing that:
"special attention should be paid to the problems of sex tourism. Legislative and other measures should be taken to prevent and combat sex tourism, both in the countries from which the tourists come and those to which they go".
That initiative is also supported by UNICEF.
In 1991 the Council of Europe adopted a recommendation on trafficking in children which included the recommendation that states should adopt extraterritorial jurisdiction. On 31st May this year-only a fortnight ago—the International Labour Organisation issued a statement to the effect that Its Committee of Experts had endorsed that recommendation. I understand that the proposal was welcomed by a spokesman from the Thailand Government.
So the measure is being strongly urged by virtually all the relevant inter-governmental agencies. In fairness, some of the larger and more reputable tourist agencies are themselves taking action. The German travel agency, TUI, has now told its agents in Sri Lanka that it will cancel all contracts with hotels which permit the sexual abuse of children. And as so often in matters of human rights, much of the initiative has come from the non-governmental organisations. The concern is escalating week by week.
Last year, Anti-Slavery International awarded its annual award for a contribution to the fight against slavery to ECPAT. Now Anti-Slavery International, CAFOD, Christian Aid, the Jubilee Campaign, and the United Kingdom section of Save the Children Fund, have formed a coalition on child prostitution and tourism to co-ordinate the campaign. It is right that I should also acknowledge the information that I have received from the Action for Children Campaign and from the Josephine Butler Society.
Last September, the National Council of Women adopted a resolution to the same effect. The noble and learned Lord may know that only last week, following a resolution last year by the World Federation of Methodist Women, a massive petition from the methodist connection in this country was presented to the Government. The noble and learned Lord will of course have in mind that in another place an Early Day Motion containing the same proposal has received nearly 300 signatures.
Already Sweden and Germany have legislated to this effect and similar legislation has been introduced into the parliaments of France and Australia. That legislation

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was the subject of a Question for Written Answer on 3rd May by the noble Lord, Lord Avebury. In reply the noble Earl, Lord Ferrers, said that the Government had no current plans to extend the jurisdiction of British courts.
The Government's thinking on the subject appears in a letter written by the Minister of State, Mr. Maclean, to Sir Cranley Onslow, dated 7th February this year. He points out, first, that in Thailand there is no prescribed age of consent. It is taken as puberty, so some activities which would be unlawful in Britain are not unlawful in Thailand. This amendment takes account of that. It seeks to render an act punishable in Britain only if it would be punishable in the jurisdiction where it occurred.
Then he emphasises that, for constitutional reasons, Germany, which has been the subject of a previous reference, has no extradition laws comparable with our own. He argues that since Britain makes provision for extradition, it is better to deal with offences in that way because it is easier to gather evidence and call witnesses in the country where the offence takes place.
I have no quarrel with that if the authorities where the offence took place actually request extradition and if they are in a position effectively to enforce their own laws. But I believe that there are three answers to that argument. The first is to be found in the Minister of State's own letter. Earlier in that letter he writes:
"There are considerable difficulties because of the entrenched interest involved, including those of a number of corrupt police and other officials".
That appears to be confirmed by an article which appeared in the Evening Standard on 7th March which begins:
"Britons accused of seeking sex with children in Thailand have been able to buy themselves out of gaol with £10,000 bribes in a scandal which has left youngsters of only 10 available as prey for charter-flight tourists".
The article goes on to allege that certain Britons who were awaiting trial had in effect been bailed in consequence of making unlawful payments, and had been permitted to leave the country with no intention of returning to stand trial.
The second answer to the argument of the Minister of State is that the Thai Government themselves appear to recognise the problem because in a recent statement, as I mentioned a moment ago, their spokesman said that they supported the arguments for extra-territorial jurisdiction in the countries from which the tourists come. It seems clear that there are those within the Thai Government who are very troubled over the situation, but they are under too many constraints to enforce the law effectively.
The third answer is that Thailand is not the only country where this form of tourism is to be found. It exists, for example, in the Philippines, and unless I am mistaken—the noble and learned Lord may assist me on this—this country has no extradition arrangements with the Philippines. It exists too in Sri Lanka, in parts of Latin America and Africa.
I understand that it will not always be easy to obtain evidence of offences, but there will be cases where evidence can be made available. It may be that this
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country may think it right to station a police officer in certain capitals in the same way as we station officials, for example, to control the drugs trade. Most particularly, the amendment proposes to make aiding abetting, counselling or procuring the offence, punishable here and so it would no longer be possible for tour operators and those with whom they are associated, to operate openly either here or abroad.
I would be surprised if there were any controversy in this debate as to the objective which the amendment seeks to achieve, and certainly not, I believe, from the noble and learned Lord, unless I have totally misjudged him. I accept that the Home Office has been exercising its customary caution as to the efficacy of the remedy which is proposed. The fact that the proposal has massive support throughout the international commun-ity is of course not conclusive. The Home Office requires to be persuaded. But the voices crying in the wilderness are no longer those who are proposing this measure, but the diminishing number who are resisting it.
Two hundred years ago this country led the world in the campaign to abolish the African slave trade and it still retains great respect in the international community as regards human rights. It would be a tragedy if in this campaign to end one of the cruelest and most foul forms of contemporary slavery, this country was ranged on the side of the Levite. I beg to move.
5 p.m.
Lord Avebury: I was a little hesitant when I was first approached by ECPAT, the organisation which the noble and learned Lord, Lord Archer, has mentioned, took the lead in the campaign against sexual tourism. My hesitation was on grounds which he may find rather peculiar. I was hopeful that it would not be necessary to extend the jurisdiction of our law into acts committed by British citizens in foreign countries even though that may seem to be an argument which appeals to a lawyer rather than to a layman. It struck me that it would be a better course of action for us to assist the foreign governments which were doing their best to stamp out sexual tourism locally with whatever technical assistance we could, rather than to try to extend our jurisdiction into their countries.
I was finally convinced, not only by the arguments put to me personally by ECPAT, but by everything which I have read about this disgusting trade, that firmer measures had to be taken within our own law and that we are justified in doing that by some of the precedents for the extension of our jurisdiction which the noble and learned Lord, Lord Archer of Sandwell, has mentioned. To that I add not just the commission of torture by British subjects but now, as he has probably observed, the torture of British subjects by foreigners. There has been a very recent and important case in the courts where it has been decided that there is jurisdiction. There was the case of a man who alleged that he had been tortured in Kuwait. The courts declared that there was a case to answer on the ground that torture was an international offence and could be dealt with in the jurisdiction of any country. If one takes that view, the

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sexual exploitation of children which, in my opinion, is as nasty and vicious as torture, ought equally to be subject to extra-territorial jurisdiction of this kind.
The noble and learned Lord, Lord Archer, has by no means exaggerated the extent of that vicious trade. He mentioned that hundreds of Westerners are flocking to Sri Lanka to take part in the activities of sex tourism because they know that they will be immune from the law there. Although the Thai and Sri Lankan Governments have expressed their determination to strengthen their legal provisions against the exploitation of children in their countries, they are up against enormous vested interests, such as the tourist trade itself and, in the case of Thailand, corrupt local police who can be bought off by the managers of child brothels. That is why very few prosecutions are successful locally. I believe that one German tourist was convicted in Sri Lanka of very blatant activities with young children in a hotel somewhere down in the south. He was let off with a small fine and was allowed to leave the country. That was for an offence for which the maximum is a heavy custodial sentence. Again, the reason was that the courts did not wish to deter other people from visiting that country because of what they might read in their newspapers about the likelihood of such heavy sentences being imposed. Of course, the vast majority of Western tourists who visit Sri Lanka or Thailand do not engage in illegal activities.
Another aspect of this trade should be mentioned. I refer to the particularly despicable sale of Burmese refugee children across the border into Thailand. The noble and learned Lord, Lord Archer, probably knows about this. It has been dealt with by ECPAT. Refugees who are absolutely desperate to survive sell their children into slavery. In many cases the children find themselves in the brothels of Bangkok where they are lost for ever to their families.
It has recently been brought to my notice also that there is an unpleasant practice in Hong Kong to which the Committee's attention should be drawn. Children are brought across the border from mainland China to take part in sexual activities. When the brothel owners are caught they are not imprisoned, but the children are. In a recent case two children were kept in an adult prison in Hong Kong because they were required as potential witnesses in a case against the brothel owner. I could not believe that when I heard it. I could not believe that there could be a provision in the law of a British dependency which allowed children to be detained in an adult prison because they were required as material witnesses to an offence. I received a fairly long letter this morning from Mr. Alastair Goodlad, which I have not had a chance to study as yet, in which he makes out a justification for that law on the grounds that if those provisions were not in the statute there would be a flood of people coming across from mainland China. He said that the provisions were needed as a deterrent. I am sure that deterrents are necessary, but can we not provide them within the rules of natural justice and prevent witnesses from being detained in remand prisons simply because they may be required to give evidence in a later case?
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However, Hong Kong is not the main centre for the sex tourism about which we are speaking. The two countries which are principally concerned are Thailand and Sri Lanka, both of which are making every effort to stamp out this horrible trade. The Government have said that we should assist them in every way that we can in their own law instead of extending our jurisdiction in the way recommended in the amendment. I should like to ask whether further consideration might be given to my suggestion, made in correspondence with Ministers, that we should loan police officers to the forces of those countries. The places where such offences occur are well known locally. You do not need to look around very hard to find the particular hotels or beach resorts where child sex is available. Therefore, if police officers from Western Europe—from Britain or Germany— were stationed in those places, helping the local police with their inquiries among tourists, that might provide a substantial deterrent and help to close some of the brothels that indulge in this filthy trade.
We should also offer technical assistance, given what is known by the British police about the activities of paedophiles in the United Kingdom. Ministers have stated in correspondence that they are perfectly ready to do that if the countries concerned required it; in other words, if those countries took the first step by asking the British police for help we would be prepared to consider providing it. I am not sure whether that has been made known sufficiently firmly to the governments concerned. Given the expressed willingness of the Thai and Sri Lankan authorities to combat the trade, I believe that they would like to have such expertise available. We should make the offer without waiting to be asked.
In the meanwhile, the noble and learned Lord, Lord Archer, has given us an opportunity to do something which many other countries have already achieved. He referred to Germany in particular. I should like to mention Australia. I have recently sent to the Minister who deals with South-East Asia a letter that I received from my friend and colleague, Garrie Gibson, who is a Member of the Federal Houses of Parliament in Australia. He enclosed a copy of the Bill that was recently introduced there. If such a provision, which is in accordance with our legal traditions, can be introduced in Australia, it is possible to do the same here. I hope that the opportunity given to us this afternoon will be taken to extend our law and combat a disgusting and pernicious trade.
Lord Wilberforce: I strongly support the amendment that has been moved by the noble and learned Lord, Lord Archer. He made a very strong case. His reputation in connection with preventing the exploitation of vulnerable people and with their defence is well known both in this House and in the House of Commons. He deserves our support.
One has to ask two questions in this connection. The first is whether there is a need for an extra remedy above that which is already available under the law. As to the facts, I need not expand on them because the noble and learned Lord explained them and gave details of a very convincing character. ECPAT, the body which he mentioned, has been in existence for, I believe, three

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years and has collected a mass of totally convincing detail. It came to the notice of Anti-Slavery International, of which I have the honour to be a joint president. We decided to give our award of the year for 1993 to ECPAT for its work. That award is not given lightly. It is given only where the work has clearly been meritorious. Incidentally, the award was presented on behalf of our society by the noble Baroness, Lady Blackstone, thereby giving additional validation to the case made. The facts are not capable of dispute, and the noble Lord, Lord Avebury, added to them.
One must also question whether the existing law can deal with the situation. I suggest that the answer is, certainly not. The acts that are referred to in the amendment are committed abroad—in Thailand, the Philippines, Sri Lanka or wherever—and, naturally, prosecutions would be expected to take place in those countries. However, there are strong vested interests against attacking a trade which is lucrative and brings in tourism. Anybody who has had any connection with human rights legislation or with anti-slavery legislation knows that it is one thing to get legislation passed in a foreign country and quite a different thing to get that legislation enforced. A fortiori that is likely to be the case in this context.
Moreover, by the nature of things the offence is committed by a foreigner who is likely to have left the country by the time the wheels of justice have begun to move. Therefore, one is thrown back onto the possibility of extradition which, as the noble and learned Lord explained, may not be available. In any case, extradition takes a long time and is subject to difficulties. So much for the practical possibilities of prosecution in the country of the offence.
As regards prosecution in this country under the existing law, Members of the Committee will be aware that in order for it to take place some essential ingredient of the crime must have been committed here. If the whole crime took place abroad then, in the absence of special legislation, it cannot be prosecuted here. In many cases that would enable the production of advertisements or counselling to be dealt with here under a charge of conspiracy or something of that kind. That might be available but it would not attack the actual commission of acts in the country concerned by people who have gone there in order to engage in this horrible trade. Therefore, there are serious weaknesses at both ends; that is, in the country in which the crime is committed and in this country.
The second question is whether it is appropriate to make this type of crime an international crime. The noble and learned Lord, Lord Archer, gave instances of cases in which it is thought proper to make a crime capable of prosecution though committed extra-territorially. He mentioned the case of homicide with which Members of the Committee recently had contact in the case of war crimes. He also mentioned torture and some sexual offences. One might add as perhaps relevant that since 1873 offences in connection with the slave trade have been capable of prosecution though committed extra-territorially. A number of acts of a sexual character are capable of being dealt with under an
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Act of 1978. They include abduction, child stealing, rape and so forth. They are capable of being dealt with under the European Convention Against Terrorism but only as between countries which are parties to that convention, which are basically European countries. That is a pointer to the way forward; it is an analogy which can be drawn on. Other cases can be found in the books showing that in a suitable case a crime can be treated as a universal crime, dealt with by any country which has jurisdiction over its own nationals or persons resident in that country.
As the noble and learned Lord mentioned—it was added to by the noble Lord, Lord Avebury—a number of countries have announced measures to deal with the situation by legislation or otherwise. I would add to their list Canada and Japan, which have also announced measures, bringing to six the number of countries taking or planning action. We should be at the head of them. I have no hesitation in suggesting that it would be totally appropriate and right that we take measures as proposed to make this action generally an extra-territorial crime. I do not wish to enter into the details of the noble and learned Lord's amendment. It seems appropriate, if perhaps a little widely drawn, but that can be considered later.
To sum up, the amendment focuses on this evil, which is undoubted, widespread and probably increasing, and suggests a remedy which is appropriate to the nature of the case and perfectly consistent with the traditions of this country. I am happy to support it. I hope that the Government will take it on board.
5.15 p.m.
The Lord Advocate (Lord Rodger of Earlsferry): The noble and learned Lord, Lord Archer of Sandwell, has raised what everyone will agree is a most important matter. He has spoken of a form of trade and exploitation which is vile. I am sure that all Members of the Committee accept that that is so. The noble and learned Lord has proposed a particular remedy and, with his experience and knowledge, drawn from his contacts with various organisations, has painted in the background against which he makes that proposal.
He has, of course, recognised—as have other Members of the Committee—that the proposal is exceptional in that it is not in accordance with the usual provisions of United Kingdom law to provide for extra-territorial jurisdiction. That is not to say that there are not cases in which it has been provided for. Again, the noble and learned Lord has indicated a number of such cases and we have heard a full additional exposition from the noble and learned Lord, Lord Wilberforce. I accept that where in the past there has been an offence of such international dimension it has been recognised to be appropriate to breach the usual principle on extra-territorial matters and to provide for jurisdiction in such cases.
It is, therefore, not so much the issue of principle which has concerned the Government in this matter. We have reached the view, of which the noble and learned Lord is aware and to which he referred, that it would not be appropriate to make the extension here. That view was not reached simply on the basis of any general

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principle. The principle exists and one must examine the circumstances in which it is breached. Nonetheless, it is not on that matter that the Government have placed most weight.
We start from the position that where possible it is best that crimes committed in an overseas country are dealt with by the authorities and the courts of that country. I am sure that Members of the Committee would not dispute that position for one moment. It is almost a corollary that usually it is difficult for us to enforce law where the relevant events occur in a foreign country, in particular if it is a country such as Thailand or Sri Lanka. It must be remembered that our police and our courts do not have powers there and that usually the witnesses concerned do not speak English and so forth. Therefore, it is difficult for us to enforce laws where events take place overseas.
In that situation, what has been the Government's reaction to this undoubted problem? Of course, we have worked hard in international bodies, in particular in the UN General Assembly and the Commission on Human Rights, to combat the real evil of child prostitution. In 1992, for example, we supported the adoption by the commission of a programme of action for the prevention of the sale of children, child prostitution and child pornography. We have urged all countries to implement the measures that it contains. We have frequently raised the issue of child prostitution with the authorities of the countries where it occurs, in particular with the authorities in Thailand. We are a party to the Convention on the Rights of the Child, to which the noble and learned Lord, Lord Archer, referred, and we support the work of the Committee on the Rights of the Child in monitoring states' compliance with the provisions of the convention. Therefore, there is no lack of sympathy with what lies behind the amendment. However, the question is: what is the best way forward?
Reference has been made to extradition. But, the heart of the argument, described by the noble and learned Lord, Lord Archer, is that often the authorities in the countries where the problem arises are, shall I say, not enthusiastic in prosecuting the offences or in dealing with them. That lies at the heart of the matter. But that is a difficulty which really must be dealt with in those countries. We must use all our powers and arguments to bring home to those countries—be they independent countries with their own governments and so on—that it is their responsibility to clean up that filthy trade in their own countries. We must not allow any illusion to develop that by introducing the proposed provision, we should in any sense put an end to that filthy trade. That will be disposed of only when the authorities in those countries are really prepared to crack down on it. Therefore, in no sense must we get away from the position that it is for the authorities in those countries to act.
If they are prepared to act then, as has been said, the United Kingdom is prepared to extradite its own nationals for trial in those countries. Of course, that is a different position from certain other countries; for example, Germany, which, for its own historic reasons, does not do so. As the noble and learned Lord, Lord Archer, said, at present there is no extradition treaty
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with the Philippines and I can confirm that. But the main countries that we are considering at present are Sri Lanka and Thailand. The trade is at its worst in those countries. We contend that where the authorities are active, then extradition is the better and more workable option because a local trial is likely to be much more successful.
Equally, we are prepared to co-operate with the authorities of the countries concerned where they believe that a British holidaymaker has committed offences while there. For example, we are able to arrange for assistance to be given in terms of the Criminal Justice (International Co-operation) Act 1990 and we can take witness statements and further the investigations. Our police authorities give information about known paedophiles to the police of other countries. For example, the obscene publications branch warned the authorities in Thailand when a British paedophile was believed to be travelling to that country. Therefore, the Government and the authorities have been active.
But if the provisions of the proposed amendment were brought into effect in this country, what would be the practical results? As the noble and learned Lord, Lord Wilberforce, stressed, for the first time it would give jurisdiction to the courts of this country in that sphere. That would be the first step. But before a prosecution could be brought in this country, we should still need to have available the evidence necessary for a prosecution here. As Members of the Committee will be aware, we do not work, as some other countries do, partly by means of written procedures. On the whole, we have to have the witnesses present in this country or have some way of obtaining their oral evidence.
We are dealing with people who, as the noble and learned Lord, Lord Archer, explained, are often completely unwilling for their own reasons to co-operate. If they would not co-operate with a prosecution in their own country, they certainly would not be willing to co-operate with a prosecution in this country. There would be all the problems of language and so on. In other words, the practical difficulties of actually prosecuting in this country would be enormous and the Government believe that in practice, it would be unworkable.
Reference was made to the fact that certain other countries have introduced that legislation; and that is correct. But, for example, that legislation is in place in Germany and so far there have been three prosecutions under it. They all concerned sex offences committed by German nationals against children in Thailand. Every single one of those prosecutions failed due to lack of adequate evidence. That highlights the difficulties. The Government do not believe that the position would be any different in this country. If anything, it may be worse because of the form of our court procedures.
Members of the Committee have referred to the Australian legislation, but equally I know that some people have expressed doubts as to whether or not that legislation would prove to be of any real material use. For those reasons, the Government do not believe that the approach embodied in the amendment would assist materially in bringing to an end that vile trade. If

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anything, it would create an illusion of practical action which would only be an illusion. It would not really reach the heart of that particular abuse.
For that reason, the Government believe that the amendment is not acceptable. Of course, we shall continue to monitor what is achieved by the legislation in other countries. If it appears that something is being achieved, the Government will be prepared to reconsider the matter in the light of that information. But as advised at present, we do not believe that that is the way forward. Therefore, I ask the noble and learned Lord to withdraw the amendment.
Lord Avebury: Before the noble and learned Lord sits down, will he deal with the question that I asked with regard to a positive offer of help on the part of the British police? Instead of waiting for the Thai police or the Sri Lankan police to ask for help, will the Government consider making a positive offer to station British police officers in those countries in the places where those offences occur so that they could help their Thai or Sri Lankan counterparts?
Lord Rodger of Earlsferry: I beg the noble Lord's pardon; I should have referred to that matter. Although such matters seem simple in the abstract, one must remember that one is dealing with independent countries with their own authorities. We cannot give police assistance if it is not wanted. One must always bear in mind sensitivities in relation to such matters. I shall write more fully to the noble Lord on that matter and in regard to Hong Kong, about which the noble Lord also asked.
Lord Lester of Herne Hill: Perhaps I may raise two points. I listened very carefully to what the noble and learned Lord said. It seems to me that the argument put forward for leaving the law as it is would apply with equal force to those crimes which—I use a phrase of the noble and learned Lord, Lord Wilberforce—are international crimes; for example, trafficking in slavery or certain forms of international terrorism.
Is it not the case that one powerful argument for extending jurisdiction in this case is that it would have a certain deterrent effect on British people who indulge in that filthy trade because they would know that they stand some risk of being brought to book in the criminal courts of this country, even if they can go scot-free elsewhere?
Lord Rodger of Earlsferry: As I said in reply, I accept that there are certain international crimes which may occur in various places and which perhaps occur often in no particular jurisdiction—that is, the high seas or wherever it may be—where international jurisdiction is appropriate. I accept that. However, for the reasons that I have explained, we do not believe that it is appropriate in this case.
I accept that if there were a realistic prospect of prosecution and conviction, that may have the deterrent effect to which the noble Lord referred. However, for the reason that I have given, the Government do not
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believe that that would be so. Therefore, one would be at risk of putting on the statute book something which was really just a paper provision and nothing more.
5.30 p.m.
Lord Williams of Mostyn: I support the amendment moved by my noble and learned friend Lord Archer of Sandwell. It seems to me that nothing has been said by the noble and learned Lord the Lord Advocate that deals with any of the points that have been raised. The noble and learned Lord asserts that in principle the Government would favour stamping out—indeed, he said it on a number of occasions—"this filthy trade". However, in the next breath he indicated that governments locally, whether in the Philippines, Thailand or Sri Lanka, are not particularly interested in stamping out the trade for various ignoble reasons.
Every one of the arguments marshalled by the noble and learned Lord the Lord Advocate is entirely apt to do away with the catalogue of offences which was accurately read out by the noble and learned Lord, Lord Wilberforce. However, there has been no answer of any quality of satisfaction to the point made by the noble Lord, Lord Lester. The mere existence of a criminal sanction has an extremely important deterrent effect. The Government are urging Members of the Committee to say that, under the legal jurisdiction which we apply extra-territorially, adult slaves must have a greater protection than those properly and accurately described by my noble and learned friend Lord Archer as child slaves. That seems an extraordinary conclusion for any government to be urging upon the Committee.
If the amendment is passed, it will not end the trade overnight. The position that I am respectfully putting forward is that it would be a start upon a very long journey. However, without that start, nothing will be done.
Lord Hailsham of Saint Marylebone: I find that I cannot remain wholly silent on the issue, but I hope to be very brief. I was totally convinced by the answer given by my noble and learned friend to the understandable feeling behind the support for the amendment. I should like it to be fully understood that not one word that I say diminishes in any way my disgust and horror at the existence of the appalling misuse of humanity which has been described and which has, naturally, excited the sympathy of Members of the Committee. However, I cannot see the smallest possibility of the amendment having the slightest beneficial effect whatever upon the putting down at any stage of such an appalling trade.
Admittedly, as the noble Lord, Lord Williams, said, there are cases where we accept extra-territorial jurisdiction for certain types of offence, including the more relevant one of slavery. The reason why that has passed through into our legislation is that, occasionally, there is the possibility of getting a witness into this country who will give evidence for the prosecution in such a case. That is particularly so in the case of slavery due to the fact that, very often, slavery takes the form of

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kidnapping people from one country and moving them over into another. Of course, the country from which such people are kidnapped is likely to co-operate.
Where the evil, as described, against a child takes place inside a country, you will not get the child over here in any circumstances. The only person to come here would be an officer of the police force of countries which are actively engaged in putting down such activities. The right course, if countries are sincere, is extradition. I should heartily support such a proposal.
However, the argument put on the other side is that in countries where such things take place either the authorities will not co-operate, in which case the whole situation would fail, or the police forces or persons who could give effective evidence for the prosecution are corrupt and would take bribes. If they are likely to take bribes where they are, they are not likely to come to this country and give evidence for the prosecution. We must use a little common sense. I support wholeheartedly the Government's attitude, although I detest the subject and its criminality as much as any Member of the Committee.
Lord McIntosh of Haringey: Paradoxically, the noble and learned Lord is arguing against his own Front Bench case. He is saying that we cannot rely on extradition as the alternative to what is proposed by my noble and learned friend's amendment. However, the Government are relying almost entirely on extradition.
Lord Hailsham of Saint Marylebone: The noble Lord misrepresents what I said. Of course, we can rely on extradition from countries where the authorities co-operate. But the argument put for the amendment is that either the government of the foreign country will not co-operate, in which case extradition is impossible, or the police officer who would be the only available witness to convict a man in this country would take a bribe so that he would not give evidence in the country where he is. Therefore, he would not come over to this country.
What I said was not against the Government's argument; it was in support of the Government's argument. The extradition option is in fact impracticable for the very reasons which the supporters of the amendment have put forward. For that reason, prosecution in this country is not an option either because the same considerations apply here.
Lord McIntosh of Haringey: With the greatest respect to the noble and learned Lord, I believe that the issue of whether the countries where this trade takes place are capable and willing to prosecute is a matter of fact. It has been well established by ECPAT that in most of the countries—certainly the most important ones— where the trade takes place, they are either unwilling or unable to prosecute effectively. Therefore, extradition from the country, which is what the Government relied on as their alternative, would not work.
The noble and learned Lord made a further point; namely, that if the governments of those countries are unwilling or unable to prosecute effectively, then, presumably, the police force is capable of being bribed and that its members would not come over to this
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country to give evidence. However, surely there are other people who would do so. It does not require the evidence of a Thai or a Sri Lankan police officer. There may be a number of people who could give evidence in this country. I repeat my conclusion that the noble and learned Lord is attacking the Government's case rather than that of my noble and learned friend.
Lord Archer of Sand well: Unusually, in the course of our debates on the Bill, I have to say that the reply of the noble and learned Lord the Lord Advocate disappointed me. I had genuinely hoped that the Government's consideration of such matters had developed a little as it went along, as so often happens in Home Office matters. I accept that the Government unreservedly support the objective behind the amendment. I also accept that the Government have not been idle in international deliberations on the matter. However, as the noble and learned Lord, Lord Wilberforce, said, the question is twofold: first, are the existing arrangements sufficient; and, secondly, would there be an addition to their effect if the amendment were passed into legislation?
As I understand it, the noble and learned Lord said that if we were to take extra-territorial jurisdiction it might weaken the resolve and the incentive of the governments in the countries where such acts take place to try to deal with them there. I do not follow that argument. For the life of me, I do not see why it should weaken their incentive; in fact, it might actually stiffen their resolution if they thought that other countries were sufficiently concerned to do something about it. In any event, as pointed out by the noble Lord, Lord Lester, and by my noble friend Lord Williams, if one looks at the examples given by the noble and learned Lord, Lord Wilberforce, that argument would apply equally to any of those examples. There would never be any attempt to address offences with an international dimension. I find myself totally unconvinced by that argument.
The second argument was that there would be difficulties in obtaining evidence. That was the argument addressed a moment ago by the noble and learned Lord, Lord Hailsham, whose views on this, of course, I take with great seriousness. First, it would not always be the case that evidence from the authorities abroad on acts which had taken place abroad would not be available in this country because we know that the Thailand authorities are not homogeneous on this. There are some authorities who want to address this foul traffic and I believe they would welcome it if we gave them this opportunity.
However, there are two other arguments, which I believe I mentioned at an earlier stage and which, if I may say so with respect, the noble and learned Lord did not take on board. The first is that much of this traffic originates with tour operators in this country—people who procure and counsel these offences. Although they sometimes carry out these offences by means of agents abroad, I believe there would be no difficulty as regards both them and their agents facing prosecution and punishment in this country.
My second point, which I understand might require some consideration, is that some countries, Sweden in

1627
particular, have stationed their agents abroad. That is not an expensive operation. It does not involve putting agents thickly on the ground in every city in the world. We know the cities where this trade goes on. We would need only one or two agents in each of these cities. That is exactly what we do now in relation to international drug trafficking. I have professional experience of people who have been convicted in this country through evidence obtained by our agents in cities where drug trafficking goes on. The Home Office might have thought about—
Lord Wilberforce: Will the noble and learned Lord add to that argument the presence in all these countries of non-governmental organisations and their representatives; for example, representatives of ECPAT and other people who work under the United Nations? One is not only confined to police or people stationed by, say, the Swedish Government. There are also many voluntary organisations who are vigilant and anxious to co-operate.
Lord Archer of Sandwell: I am most grateful to the noble and learned Lord. That is, of course, true and one can think of other kinds of offences —for example, environmental offences—where the evidence obtained abroad by non-governmental organisations has made prosecutions possible elsewhere. I am sorry that the noble and learned Lord, Lord Hailsham, said that we must use our common sense because I thought that was what we were trying to do. We are trying to add to effective control of this trade. Virtually the whole of the international community, the whole of the United Nations family, the Council of Europe and non-governmental organisations that have addressed this matter believe that they are using common sense. If they are all flying in the face of common sense, all I can say is that there is a large majority against common sense.
I have considered whether this might be an occasion on which it might be better to have second thoughts if we all undertook to read what has been said so weightily by so many Members of the Committee. But, on reflection, this appears to be a debate where, if I may say so with great respect, noble Lords have listened attentively and I should like to test the opinion of the Committee.
5.44 p.m.
On Question, Whether the said amendment (No. 143) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 126.

Division No. 1

CONTENTS

Ackner, L.

Carmichael of Kelvingrove, L.

Airedale, L.

Chapple, L.

Archer of Sandwell, L.[Teller.]

Clanwilliam, E.

Ardwick, L.

Clinton-Davis, L.

Avebury, L.

Cocks of Hartcliffe, L.

Beloff, L.

Craigavon, V.

Blackstone, B.

Craigmyle, L.

Bonham-Carter, L.

Darcy (de Knayth), B.

Boston of Faversham, L.

David, B.

Brightman, L.

Dean of Beswick, L.

Bruce of Donington, L.

Desai, L.

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Donaldson of Kingsbridge, L.

Monkswell, L.

Donoughue, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Mottistone, L.

Eatwell, L.

Mulley, L.

Ennals, L.

Nicol, B.

Falkland, V.

Northbourne, L.

Foot, L.

Peston, L.

Glasgow, E.

Pitt of Hampstead, L.

Glenamara, L.

Ponsonby of Shulbrede, L.

Gould of Potternewton, B.

Rea, L.

Graham of Edmonton, L.

Redesdale, L.

[Teller.]

Richard, L.

Grey, E.

Russell, E.

Halsbury, E.

Seear, B.

Haskel, L.

Sefton of Garston, L.

Hollis of Heigham, B.

Sempill, Ly.

HolmPatrick, L.

Simon of Glaisdale, L.

Hooson, L.

Slynn of Hadley, L.

Hughes, L.

Stedman, B.

Jay, L.

Strafford, E.

Jenkins of Putney, L.

Taylor of Blackburn, L.

Judd, L.

Taylor of Gryfe, L.

Kennet, L.

Thurlow, L.

Kilbracken, L.

Tonypandy, V.

Lester of Herne Hill, L.

Tordoff, L.

Lockwood, B.

Turner of Camden, B.

Masham of Ilton, B.

Weatherill, L.

Mason of Barnsley, L.

Whaddon, L.

Mayhew, L.

White, B.

McIntosh of Haringey, L.

Wigoder, L.

McNair, L.

Wilberforce, L.

Merlyn-Rees, L.

Williams of Mostyn, L.

Milverton, L.

5.52 p.m.
[Amendment No. 144 not moved.]
Clauses 83 and 84 agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 144A:
After Clause 84, insert the following new clause:
("Amendment of Sexual Offences Act 1956
—(1) For section 1 of the Sexual Offences Act 1956 (rape) there shall be substituted the following section—
"Rape.
1.—(1) It is an offence for a man to rape a woman.
(2) A man commits rape if—

(a) he has sexual intercourse with a woman who at the
time of the intercourse does not consent to it; and

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

(3) A man who induces a married woman to have sexual
intercourse with him by impersonating her husband
commits rape.
(4) Subsection (2) above applies for the purpose of any
enactment."
(2) In section 2(1) and 3(1) of the Sexual Offences Act 1956
(procuration of women to have unlawful sexual intercourse) the
word "unlawful" shall be omitted.
(3) Section 1(1) of the Sexual Offences (Amendment) Act
1976 (which is superseded by this section) shall cease to have
effect.").
The noble Lord said: This is a modest amendment. It is so modest that I cannot imagine that it will give rise to much debate or controversy.
In 1991 the Appellate Committee of this House decided that in modern times the supposed marital exception in rape formed no part of the law of England. In January 1992 the Law Commission, chaired by Mr. Justice Peter Gibson, as he then was, published a report on Rape within Marriage endorsing that decision by the Law Lords and recommending that the offence of rape should be redefined by omitting the word "unlawful" from the relevant provisions of the Sexual Offences Act 1956 and the Sexual Offences (Amendment) Act 1976. Before the Law Lords' decision the term "unlawful" had been interpreted to mean sexual intercourse only outside marriage.
The report is one of some 30 Law Commission reports, designed to cure anomalies and make the law simpler, which have yet to be implemented. The amendment is designed to give effect to the Law Commission's clear and convincing report. The Law Commission recommended that it was undesirable to
1630
leave on the statute book a provision that had been interpreted as mere surplusage and yet was a matter of real public importance. It wrote that it considered that to leave the statute book in this state would perpetrate on the face of the statute an unnecessary element of uncertainty about the meaning of the word "unlawful" in relation to other sections of the 1956 Act.
If the amendment were carried, subsection (1) would replace Section 1 of the 1956 Act with a new section taking in, except for the omission of the word "unlawfully", the substance of Section 1 (1) of the 1976 Act, which would be repealed by subsection (3). Subsection (2) would repeal the word "unlawful" in Sections 2(1) and 3(1) of the 1956 Act.
I have deliberately not included any of the other proposals of the Law Commission in this area lest they be regarded as controversial—too controversial to be acceptable to the Committee. If that is an excess of moderation then I plead guilty to moderation. I beg to move.
Earl Ferrers: The noble Lord, Lord Lester of Herne Hill, prefaced his remarks by saying that he could not see how there could possibly be any argument against his amendment. I could not help thinking of the number of times that I have heard noble Lords say in starry-eyed anticipation that their amendment would be accepted, only to find a catalogue of reasons presented by the hapless Minister to show that the amendment was not all that acceptable.
As the noble Lord said, this particular amendment deals with rape in marriage. For obvious reasons the Government have not been able to include within the Bill, despite its ever-increasing size, every worthy proposal for reform. We have consciously tried to avoid straying into the immensely controversial and difficult area of sexual offences laws.
The noble Lord has ventured into that terrain, with success and simplicity. In essence, as the noble Lord pointed out, the amendment merely confirms in statute what is already in law. It is an important declaration of Parliament's belief that a man who rapes his wife can expect no special treatment under the law.
It is open to question whether Hale's pronouncement that a man could not be guilty of raping his wife ever reflected the broad opinion of the general public. But it is beyond doubt that the relatively recent decision of the Judicial Committee of your Lordships' House on this matter encapsulated the modern day attitude of society.
The amendment will not change the law's practical effect, but it will represent an unequivocal statement of the value which Parliament places on a woman's right to be protected against the dreadful crime of rape. I am happy to recommend that the Committee should accept the amendment. I should like to congratulate the noble Lord, Lord Lester of Herne Hill, on having proposed such a firm, just and fair amendment.
Lord Lester of Herne Hill: I feel like a character in a Bateman cartoon: "The opposition Peer whose amendment was accepted by the Government". I am extremely gratified. It will not at all swell my conceit to think that I have contributed to the law of England for the first time as a greenhorn in this Chamber by

1631
removing one word from the statute book. I very much hope that the amendment will have the support of the Committee.
On Question, amendment agreed to.
[Amendments Nos. 144B and 144C had been with-drawn from the Marshalled List.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 144D:
Before Clause 85, insert the following new clause:
("Accommodation in prisons
.—(1) No prison establishment shall hold a greater number of prisoners than is the certified normal accommodation, subject to subsections (2) and (3) below.
(2) A prison establishment may hold a greater number of
prisoners than is the certified normal accommodation where—

(a) the additional number of prisoners in that prison is not
greater than 3 per cent. of the certified normal
accommodation; and

(b) the certified normal accommodation of that prison is not
exceeded for more than a period of seven consecutive
days in any three month period.

(3) The Secretary of State may, in exceptional circumstances,
issue a certificate to a prison for a specified number of places,
such that this section shall not have effect for a period of three
months; and copies of any such certificate must be laid before
both Houses of Parliament at the time of issuance and renewal, or
as soon as possible thereafter.").
The noble Lord said: In rising to move Amendment No. 144DI should like to speak also to Amendment No. 144HA, which deals with the related subject of detention in police stations. The amendment deals with an issue of enormous importance because we consider the prison service part of the Bill. It concerns the fundamental issue of accommodation in prisons. As the Committee will know, there is a system of certified normal accommodation. The number of prisoners allowed in any prison is well established, not simply from the point of view of the number of beds which can be crammed in, but from the point of view of providing a civilised regime in prisons. I do not now talk about any of the other issues of discipline. The difference between myself calling a regime civilised and the Home Secretary calling it austere is not the subject of the amendment.
However, the amendment concerns the overcrowding in prison which is the biggest single threat to improvement in the regime in our prisons. The Woolf Report in 1990 and the debate on overcrowding in prisons, which took place in this House on 2nd February, pointed to the enormous risks if overcrowding in prisons continues, and continues to increase. The report pointed out the extent to which such overcrowding has increased. Although there have been additions to prison accommodation, in the past 16 months the prison population in this country has increased from 40,000 to 49,000. If the increase were to continue at that rate, it means that a new prison would have to be opened virtually every two weeks in this country. At the end of March of this year 500 prisoners were in police cells. That is a tragic failure if we remember that the objective of successive governments has been to eliminate the number of prisoners in police cells. That objective had been achieved: we got rid of prisoners in police cells only a short time ago. But now,
1632
because of the increase in the overall number of prisoners, we have slipped back to using police cells as emergency accommodation for prisoners.
It is not as though it is not possible in some parts of the prison service to prohibit overcrowding. The privatised prisons—in the Wolds for remand prisoners, in Blakenhurst for convicted prisoners—have provisions in their contracts which prohibit overcrowding. One might argue perversely that if the Government were to achieve their objective of privatising all prisons, and were to do so on the contracts which have been awarded in the Wolds and Blakenhurst, there could be no overcrowding in our prisons. I do not know whether that is the Government's objective; and, if so, in how many years they think that they might achieve it.
However, two factors are particularly disturbing about the current trend. The first is the increase in numbers. It is no good Ministers saying, as they do when it is suggested that this is a matter for the Home Secretary, that it is the courts which send people to prison not the Home Secretary. Of course, it is formally the courts which send people to prison. But it is conspicuous that the courts do so more readily when they are encouraged by the politicians. After the Home Secretary had made his notorious remark at the last Conservative Party Conference that prison works, the increase in the number of convicted people being sent to prison in the following weeks was quite remarkable.
It is a political responsibility on all of us, whatever the formalities may be, to ensure that the number of people sent to prison decreases. That is why throughout the consideration of the Bill, I and others have been arguing against the increase in the number of imprisonable offences, in the sure knowledge that if one has imprisonable offences someone will take advantage of the power to send people to prison, and will do so. That is the first issue: the increase in numbers, which has to be restrained.
The second issue relates to the quality of the prison regime when there is the overcrowding which now exists. I am sorry that the noble and learned Lord, Lord Woolf, is not able to be present this afternoon. However, the Woolf Report was absolutely explicit on that point. Lord Justice Woolf (as he then was) said that it is clear from the evidence that the conditions which exist at present in our prisons cause a substantial number of prisoners to leave prison more embittered and hostile to society than when they arrive. They leave prison in a state of mind in which they are more likely to reoffend. The real cost of overcrowding is an increase in crime. Any government which claim to be defending law and order and fighting crime cannot do so on the basis of a prison policy which does nothing effective to deal with the overcrowding in our prisons.
Lord Justice Woolf cited many factors which contributed to the riots of 1990 which he investigated. Nearly all of those stemmed largely, although not entirely, from overcrowding in prisons. Overcrowding means that officers have less time to deal with prisoners; workshop space is developed for use as accommodation instead of being used for workshops and for rehabilitation; and prisoners spend less time out of their cells. The result is resentment and anger among

1633
prisoners; and the result of that is an increasing inability of prison officers, many of whom really wish to get away from the oppressive regime of the past, to control the problems with which they are faced except on a day-to-day emergency basis.
I do not say that without evidence. If we consider the number of assaults on staff—it is the sharp end of what I describe—between 1990 and 1992 assaults on prison staff increased in our prisons by 56 per cent. The Chief Inspector of Prisons, Judge Stephen Tumim, made a speech to the Royal Society of Arts last week in which he stated that the law and order debate is driven by rhetoric and by prejudice. He criticised the Home Secretary's plans for more austere regimes by stating:
"Ultimately the belief that if you make prisons bad enough, men will not commit crimes, must be exposed as historically untrue".
It is the responsibility of Parliament to ensure that we do not continue to make our prisons worse, more ineffective and more likely to encourage prisoners to commit crime. The most effective way in which we can do that is by outlawing overcrowding in our prisons.
One recognises that that cannot be done overnight. One recognises that such a fundamental change in penal policy as we call for in the amendment is not capable of immediate remedy, unless we have, as some countries have, widescale amnesties for certain offences. Perhaps that would not be such a bad idea. For example, we might have an amnesty for those who are imprisoned as fine defaulters. However, leaving that aside, we recognise that outlawing overcrowding in prisons cannot be achieved immediately. Subsection (3) of Amendment No. 144D provides that,
"The Secretary of State may, in exceptional circumstances, issue a certificate to a prison for a specified number of places",
in excess of the certified normal accommodation. We provide that the section should not have effect for a period of more than three months; and that notification to Parliament should be required at the time of issuance, renewal, or as soon as possible thereafter.
It is not an extreme amendment. The amendment calls for a stop to what has become an extreme deterioration in our prison service. I suggest that it is an amendment which the Committee ought to support. I beg to move.
Lord Donaldson of Kingsbridge: There is not a great deal to add to the arguments against overcrowding that we have just heard. Everyone knows them. They have been put again and again. I believe that 25 years is long enough and I wish to quote a sentence from remarks that I made in your Lordships' House in 1969:
"There is a prerequisite for any prison reform, and that is to get rid of overcrowding".
Eighteen years later I made a further reference when I said:
"I believe that conditions in our prisons have deteriorated steadily and dangerously … There is one basic cause for this trouble; namely, prolonged overcrowding".
On that date seven years ago, there were 393 prisoners in police cells. Now there are 500.
The story has been the same over the whole 25 years. There has been no coherent effort to deal with overcrowding and the reason is simple. There is only one way of dealing with it: with money. Unless we
1634
leave prisoners lying about for whatever period it is, we must spend the money in various ways, the most important of which is in staff. The worst effect of overcrowding is, as the noble Lord suggested, that with an overcrowded prison the facilities that are meant to make it, first, tolerable and secondly, useful, disappear and crumble. One way or another, the position becomes steadily worse.
When I said money, it does not necessarily mean building many new prisons. That has been done and has not produced the answer we wanted. I think we must go on building prisons because, on the whole, the existing ones tend to become unsuitable. The basic point is that we must have prisons correctly furnished, correctly built and correctly staffed. Only that will provide a satisfactory situation for the people in our prisons.
To have enough prisons will cost a great deal and I do not think we shall get the necessary finance. But let no one think that the problem will be cured in any other way. This is not the occasion to go into all the different things that could be done, but without proper spending, first, in relation to staff and, secondly, in relation to furnishing, buildings and providing facilities, matters will continue to become slightly worse, as they have for the past 25 years.
6.15 p.m.
Lord Renton: I am sure that the Committee agrees with the noble Lords, Lord McIntosh and Lord Donaldson, that overcrowding of prisons is undesirable and to be avoided if possible. However, I stress the words "if possible". If the courts go on sending more and more people to prison, those people must be accommodated. Frankly, the amendment is a counsel of perfection, but it may be impossible for it to work. It allows the normal certified accommodation to be exceeded in certain circumstances, but to a very limited extent. Subsection (2) (a) refers to:
"not greater than 3 per cent. [more than] the certified normal accommodation".
That could be a small percentage. Subsection (2) (b) is even tougher:
"the certified normal accommodation … is not exceeded for more than a period of seven consecutive days".
If that had been the reality of the situation over the past 30 years or more we would not have been able to keep in prison the people whom the courts sent there.
I well remember that for quite a long time, under the Home Secretary, I had responsibility for prisons. We were worried by the fact that too many men were sleeping three to a cell which was built for one man. We had the biggest prison building programme in the early 1960s that there had been for 100 years. When my noble friend Lord Whitelaw became Home Secretary he found that the position was chronic and went into an even bigger prison building programme. I do not see how the Government can accept the amendment. I am sorry to have to say so, because I think it is well intentioned.
Baroness Seear: The noble Lord is right that prison overcrowding will continue as long as courts send people to prison. My noble friend Lord Donaldson is right in saying that if that is the position then only more spending will do anything about it. But surely the whole

1635
point is that two years ago we began to reduce the number of people going to prison. That is the way in which we wish to go. We thought that the Government had had a conversion on the matter and the numbers dropped quite dramatically. We should encourage the policy of courts not to send people to prison but to use the alternative methods of punishment which have been outlined again and again. In addition, we should take more positive action to see that people do not offend. There are a number of ways, with which the Committee are familiar, to encourage people who come out of prison not to re-offend. That can be through training, help with placing them in jobs and so on. After all, recidivism is one of the biggest causes of overcrowding in prisons and if we cut recidivism the problem will be much less. I support the amendment because it forces those concerned to look again at why there are so many people in prison. If the courts had to comply with the requirements of the amendment they would consider the two important ways of reducing numbers, using other methods of punishment and taking far more positive and active steps to stop recidivism.
Lord Renton: Before the noble Baroness sits down, I agree with her that the extra non-custodial sentences which Parliament has permitted to be used since the early 1970s have helped a great deal. The courts make pretty free use of them. But there are still many cases with which the courts feel they cannot deal properly and adequately without sending people to prison. So long as that is so, it is useless trying to impose conditions on the number of prisoners because we shall simply be interfering with the work of the courts in a way which would not be feasible.
Lord Avebury: The noble Lord says that the courts feel that they cannot do certain things, but that is a product of the climate of opinion which is created by Parliament and the Secretary of State. The Committee must recognise that there will be overcrowding, which will become worse. More police cells will have to be used for the accommodation of prisoners as a result of the attitude and the pronouncements of the present Home Secretary and of people like the noble Lord, Lord Boyd-Carpenter. They always harp on the few instances of persons released on bail who commit further criminal offences. The only way in which we shall stop that—as I tried to point out when the noble Lord, Lord Boyd-Carpenter, asked questions about it—is not to grant bail at all. Then no one can commit an offence while he is on bail.
In the relatively relaxed climate a couple of years ago, when bail was being granted freely by the courts, the number of prisoners on remand in prisons was much less than now. Perhaps the Minister will confirm that, but we see from the figures that the increase which has resulted in the present situation of so many prisoners in police cells—500 has been mentioned—is largely on the remand side, not people serving sentences.
Thus, although my noble friend is perfectly right that measures to counter recidivism are important and Parliament should concentrate on them, they will not have the fundamental effect on the prison population
1636
that we should like to see if overcrowding is to be altogether prevented. I am afraid that I have to agree with the noble Lord, Lord Renton, in one sense. We are talking in the amendment about something which is impossible to achieve unless the courts change their sentencing policy and unless the number of people held on remand is diminished. We must put people somewhere. It is the product of the cumulative decisions made by the courts throughout the country and the prison population has to be accommodated in the prison accommodation that is available.
We face, and have faced, a difficulty, as my noble friend Lord Donaldson pointed out. I can remember even further back than he mentioned, when the prison rules were first introduced in their present form. We talked in Rule No. 1 about enabling prisoners to lead a good and useful life. That was supposed to be the main purpose of incarcerating them. That of course meant, as everybody will concede, that the accommodation in which they were to be confined should be reasonably civilised. It never has been. We have never arrived at the point where there has been sufficient reasonably modern accommodation to satisfy the whole of the prison population.
The point that I was about to make is this. The fluctuations in sentencing policy and attitudes, for example, to the long-term imprisonment of people who commit serious offences alter with every successive Home Secretary and every successive government, so that the amount of accommodation that is needed to satisfy what the courts do goes up and down almost like a yo-yo. I do not mean quite so frequently as that, but since prison building essentially calls for a long-term capital investment programme, you cannot suddenly change course and increase or decrease the amount of accommodation to satisfy the changes of direction in the courts, which are in turn the product of the policy of the current Home Secretary or his Administration. Unless one is willing to spend an enormous amount on over-capacity to meet the maximum that any future Home Secretary may indirectly decree to be the prison population, we shall never get to the position where we can lay down, as the noble Lord, Lord McIntosh, suggests in this amendment, a fixed percentage by which the accommodation cannot be exceeded.
If we were to pass this amendment—much as I would like to do so—we should be deluding ourselves and the public into thinking that there is a simple solution to what is an immensely complex and unwieldy problem. It is a problem that has been made far worse by the current Home Secretary in his policies of long imprisonment for certain offences, a reduction in the amount of bail and hitting very hard a variety of offenders. We are making the situation worse in the current Bill by adding to the categories of conduct which have hitherto been dealt with by the civil courts, as the noble Lord, Lord McIntosh, reminded us, but which are now to be covered by the criminal law. Unless we address all those other problems, I am afraid there is no use in our declaring piously that we want to limit the amount of overcrowding in our prisons.
Lord Boyd-Carpenter: The noble Lord, Lord Avebury, was good enough to refer to the fact that I have on occasion raised in this Chamber the question of the release of prisoners during times of sentence. The noble Lord is quite right in drawing attention to that. I have to admit that I have been concerned, and am concerned, that one undermines the deterrent effect of prison sentences if it becomes generally known among those who are sentenced, or are liable to be sentenced, that they are in fact likely to be released by a kindly Home Office and will not serve the sentence which the judge has imposed upon them.
The noble Lord has raised a very serious point. If he is going to say, "We haven't enough room in our prisons for prisoners actually to serve the sentences that the courts have imposed on them", then we really are abandoning a great deal of the deterrent effect of the prison system. I suggest to the noble Lord that it is a most dangerous argument to say, "It doesn't matter, because you may be sentenced to five years' imprisonment but you will be released after a few months", and therefore there will not be the congestion. It is a most dangerous argument. If we have to choose between sabotaging—for that is the right expression —the effect of a prison sentence, or overcrowding in prisons, then unpleasant and disagreeable as overcrowding in prisons is, I think it is the lesser evil.
It is certainly the fact that some prisons have been overcrowded and are likely to be so for years to come. But one of the reasons is that prison sentences have lost a good deal of their deterrent effect because of all the releases that have taken place. Therefore, paradoxically, a good deal of the additional pressure on space in prisons results from increased knowledge among the criminal classes that sentences are not likely to be served in full. That is the problem which the noble Lord, far from facing, appears to run away from.
I agree that it is a pity that prisons become overcrowded. It is very hard on good prison staffs if they have to operate under those conditions. On the other hand, I commend very much the efforts that the Government have made to increase the availability of prison accommodation. It is certainly necessary to do that, highly expensive though I am afraid it is. It is no use complaining of the high expenditure and, as a result, high taxation. One has to accept that creating additional prisons is very expensive.
I am afraid that the answer must be that we have little option but to continue as at present. We should very firmly reject the idea of the frequent and easy release of persons who are sent to prison. They no doubt expect it; they are no doubt therefore more likely to commit offences because the deterrent effect will be less. Simply to release them is too easy a way out. This sounds a brutal thing to say, but I think that it is true: if it becomes known that prisons are uncomfortably overcrowded, in an odd sort of way that will increase rather than decrease the deterrent effect of prison sentences. That is probably the direction in which the solution to this problem lies.
Lord Donaldson of Kingsbridge: Perhaps I may make just one remark. Overcrowding produces a better
1638
prison for the bad prisoner, in that he gets his drugs and the rest of it. It is impossible to run a prison properly when it is overcrowded. The idea that he is frightened and is sure that he will not get out is not relevant.
Lord Boyd-Carpenter: I do not accept that it makes it easier for a prisoner to get his drugs. It does mean that the prison staff have to exercise greater firmness and austerity in controlling the admission of drugs. That, I am afraid, we must ask them to do.
Baroness Gould of Potternewton: Before intervening in this debate I declare an interest in that I act as an adviser to the Prison Officers' Association. I do not wish to get too involved with the details of sentencing, which is obviously extremely relevant to the discussion, and particularly in respect of people who are on remand. The fact that 70 per cent. of women on remand and 50 per cent. of men do not subsequently get a custodial sentence has little to do with any deterrent but has much more to do with the sentencing within individual courts.
We have also seen during the passage of this Bill that there will be an increase in the number of people liable to receive custodial sentences. When we relate that to the growing number of fine defaulters in prison, there is bound to be an increase in the prison population. That makes me wonder whether the projected figures for the prison population by the turn of the century are somewhat overestimated. The Home Office estimates that there will be 55,000 people in prison in 1997. The noble Earl, Lord Ferrers, during the debate in February, said that there would be 56,600 prisoners—a very precise figure—by the year 2001.
This new clause is important because it goes some way, and only some way, to implementing the fundamental recommendation made by the Woolf inquiry. It is a very flexible amendment. It is not over-restrictive, as has been suggested. However, it requires the limits on capacity to be maintained. Limits are in fact laid down but they are not kept. Such limits should be reviewed constantly.
The Government say that they are committed to reducing overcrowding. The prison service states that the concepts of fairness, justice and respect to individuals to which it works are particularly relevant to the physical environment in which prisoners are held and the way their needs are met. Those are fine words. Unfortunately, owing to overcrowding and the dramatic increase in the prison population it will not become a reality. That is a great pity. It could have been possible. As the noble Baroness, Lady Seear, said, there has been a change of direction in the management of the prison population within the past two years and a change of attitude by the Home Secretary.
During the debate in February, I referred to Leeds prison, which has a capacity of 814 prisoners. In February the prison population there was 1,129. Now the figure is 1,155, which represents 42 per cent. overcrowding. At the end of March this year 11 local prisons were overcrowded by 40 per cent. We have seen a growth—we were promised that it would not happen —and not a reduction in the number of prisoners sharing

1639
a cell designed for one person. In February the figure was 7,300; it is now over 8,500. There are no guarantees at all that the numbers will not continue to rise.
The Woolf Report also stated that one of the key causes of the prison riots of 1990 was the fact that dangerous prisoners, because of overcrowding, were being placed in accommodation of a lower category than was merited. It may be that some Members may prefer overcrowded prisons to releasing such people from prison. In fact, that very bad combination of overcrowding and dangerous prisoners means, as has been said so often before, that prisons become schools for crime.
Those sentiments were echoed at the annual conference of the Prison Governors' Association, which called for the introduction of a legal limit on gaol overcrowding. It was felt that that would go some way to averting the risk of further riots in the face of the explosion in prison numbers.
Another very important factor, mentioned by my noble friend Lord McIntosh, concerns assaults on prison officers. The more overcrowded the prison, the more chance there is of assaults on prison staff. Between May 1990 and May 1992, such assaults increased by 50 per cent. Surely nobody can feel that that is acceptable.
Against the backdrop of an increasing prison population, there has been a reduction in the number of prison officers by 4,000. It may be that the prison officers will have to do their job a little better, as has been suggested, but a reduction in their numbers makes that extremely difficult to do.
I believe that if the Government accept this clause it will show that they have not only listened to people working in the field but that they have listened to the prison governors and the prison officers; that they have considered the views of the current director-general and the Chief Inspector of Prisons and the recommendations of the Woolf inquiry; and that they are genuinely committed to removing the horror of overcrowding in our prisons and its consequences.
6.30 p.m.
Lord Elton: Overcrowding in prisons is an evil which should be tackled. Overcrowding does not act as a deterrent, as my noble friend Lord Boyd-Carpenter would wish. If it did, we would have seen a dramatic reduction in the prison population a long time ago. As the noble Lord on the other side of the Chamber said, it leads to the greater availability of drugs, despite the best efforts of prison officers, whatever their strength. It leads not only to demoralisation but to riots and destruction of prison property and to an increase in crowding. However, the amendment is not the way to tackle the problem.
Frequent and easy release, referred to by my noble friend, is perhaps not the best description of what goes on. Remission is not used as a means of reducing the prison population. It is used as a means of encouraging good behaviour among prisoners, without which it would be impossible to control their behaviour. Parole is not a means of reducing the prison population. It is a means of introducing prisoners to a life at liberty, so that
1640
if they are not fit for it they can be brought back in. If it were to be abandoned, serious and violent offenders would be released cold into the community with much more damaging results. Licence is used on very few occasions to end a life sentence when it no longer serves any detectably useful purpose.
There are two ways of reducing the prison population, both within the reach of the present administration at, I believe, no great cost. One way is prevention; the other is a change in the particular sentence. The preventive way is a simple one which I have brought to this Chamber's notice on a number of occasions. It means engaging young people in constructive, useful, disciplined and educative things to do-young people who otherwise would have no such things to do and whose vital spark of enthusiasm, energy and inquiry which God has given to each of us would be turned to destructive purposes, thus adding to the very large number of young people in our prison population. It is a tragedy which could be stopped by a greater involvement of the voluntary sector in particular in providing for them. I welcome the beginnings of a policy in the Home Office in the form of the Care in the Community partnership. But that needs to be multiplied tenfold. It costs an invisible fraction of the amount of money that custody costs. And custody is the alternative.
The other matter is more controversial. I have raised it in the Chamber previously. I bring it back and again draw it to the notice of my noble friend. At present it is an imprisonable offence triable either way to handle goods-that is, to shoplift goods-of a value of under £100. It appears that about 10 per cent of Crown Court time is taken up with hearing that kind of trivial case before a jury. The noble Lord, Lord Avebury, is right to say that the real problem is in the remand wings. It is there because the courts are chock-full with business, some of which in my view is not necessary. Because the courts are full of such business, remand prisoners cannot be taken out of the remand wings to be tried and released or put into the rest of the prison. Remand prisoners throw a far greater burden on the prison staff than convicted prisoners because they have many more privileges, do not wear prison uniform and have visits and mail in quantities which are not available to the rest of the prison population.
If the courts could be relieved of 10 per cent. of their business, it would have a dramatic effect on the remand wings. It would have a dramatic effect on the ratio between prisoners and prison staff. I believe it would have a dramatic effect on the morale within the prison service and could lead to a reduction of the instability that exists within it.
What is the price we pay? It means that the person who is charged with this offence should not have the right to go before a jury except on appeal-at least not a right to go to the Crown Court but to be heard by the magistrates. The principal objection to that is the possibility of error. I once walked out of a shop without paying for something, realised what I had done 50 yards later, went back and paid for it. I see that it is possible for things to be taken in error. I trust a magistrate to be able to judge whether or not I had done it with malice

1641
aforethought, if I had been apprehended. However, it is said that the risk of the loss of one's character by being put in prison for such an offence is such that there must be a right to jury trial.
The simple answer to that is to make this relatively trivial offence not imprisonable on the first offence, and tried only one way. That would cost nothing, and I believe it would save a great deal of congestion in the remand wings and would do a great deal for our prison service. The big issue, to my mind, is getting our young children and grandchildren out of situations where they have nothing with which to employ their divine energy and to turn that to constructive use. That is something on which adult volunteers can be gladly and profitably used up and down the country. That is not a subject for legislation, but it would be far more effective than this amendment.
6.45 p.m.
Earl Ferrers: These two amendments of the noble Lord, Lord McIntosh of Haringey, have really stimulated quite a debate on prisons and the prison establishment. That has been of interest. I shall refrain from following my noble friend Lord Elton down the path of saying that there should be alternative methods of dealing with certain offences in court. I know this is something he feels strongly about and he is quite right to take the opportunity of mentioning it, even if it is a little far removed from the amendments we are discussing.
The noble Lord, Lord McIntosh, told us that he wants to prevent the overcrowding of prisons, and so did the noble Lord, Lord Donaldson of Kingsbridge, together with the noble Baroness, Lady Gould of Potternewton. My noble friend Lord Elton also agreed with them. The trouble is that the amendment put down by the noble Lord would actually restrict the prison service in its task of keeping in custody those who have been committed by the courts. It would create a risk that more prisoners would be locked into police cells. It would impose extra operational burdens on remand centres and local prisons, which receive prisoners directly from court. Obviously, we do not want to use police cells for prisoners: nobody does. Conditions in the police cells are not in some cases as good as those in prisons, and the use of police cells by the prison service is expensive. It also distracts the police from their proper duties.
Most training prisons operate at or below their certified normal accommodation. On these prisons, the suggested new clause would therefore have little effect. Most of the overcrowding in prisons happens in local prisons and fluctuations in their populations depend very much on the decisions of the courts. In many cases, prisoners cannot be moved away from these prisons because of the need to hold them close to the courts at which they have to appear.
As well as the certified normal accommodation, each establishment has an operational capacity. This is the number of prisoners which an establishment can hold without rendering itself liable to serious risk to good order, security and the proper running of the planned regime. In the case of many local prisons the operational
1642
capacity is higher than the certified normal accommodation; and that is authorised by the appropriate prison service area manager.
The noble Lord's amendment would allow occupancy of up to 3 per cent. above the certified normal accommodation, as he has explained. However, this would be considerably lower than the operational capacity in many local prisons and the amendment would therefore reduce the amount of prison accommodation which is available. It would not of course have any effect on the number of prisoners who have to be accommodated somewhere, who would then of course have to be sent to police stations. The noble Lord, Lord McIntosh, said there were 500 prisoners in police cells. I am sure he did not mean to be misleading, and of course there is no reason why he should know the actual figure. But the actual figure today is only 121. The extraordinary part is that the noble Lord wants to see fewer prisoners in police cells, but promptly puts down an amendment which would have precisely the reverse effect and which would actually increase the number of prisoners in police cells.
If the local prisons were allowed to exceed their certified normal accommodation by no more than 3 per cent., as suggested, the capacity of local prisons would drop by 3,600 on present operational capacity. Where would those people go? They would go into police cells. If the operational capacity had been held at 3 per cent. above the certified normal accommodation, as suggested by the amendment, on 13th May there would have been 2,700 prisoners in excess of capacity who would have been at risk of being held in police cells. So when the noble Lord, Lord McIntosh, says, "We want to have fewer people in police cells: let us agree to this amendment", all I can say is that if the Committee were to agree to this amendment, the effect would be precisely opposite to that which the noble Lord intended.
The noble Lord, Lord McIntosh, referred to prison overcrowding, and I think he tried to lay the blame on the Government. He said, "We must outlaw overcrowding". The noble Lord, Lord Donaldson of Kingsbridge, said that 18 years ago he had said that we must get rid of overcrowding. He also said, "There is no coherent effort; there is only one way to do this and that is to spend money". Those are the noble Lord's words. Since 1984, 20 new prisons have been built, with another one due to open this month. This has been the biggest increase in the provision of prison building since Victorian times. It has provided over 11,000 new places at a cost of £12,000 million, and some 8,000 new places have also been built at existing prison establishments since 1979.
When the noble Lord, Lord Donaldson of Kingsbridge, says "Spend more money", all I can say to him is, "We have". In addition to these prisons, the Home Secretary has announced plans to build six more prisons. The first two of them are planned to open in 1997–98 and will provide a further 1,200 places. The other four will provide 2,400 more places; by the year 2000. There will also be at least 2,000 more places built at existing establishments. Therefore, with the greatest respect to the noble Lord, Lord Donaldson, it does not

1643
do simply to say that we must spend more money. We have actually spent more money and we have done a very great deal towards helping the situation.
Of course it is undesirable to send people to prison if it is not necessary; and much is done through community service to enable people to serve their penalties within the community. That has been a very important part of the regime for dealing with offenders in the recent past. But prisons have to be a proper option, and I agree with my noble friend Lord Renton that they have to be there when the courts want to send people to prison. They must be able to send people to prison when it seems to them necessary.
I am bound to say this to the noble Baroness, Lady Seear, and to the noble Lord, Lord Avebury. Many people are in fact fed up with courts who refuse to use the powers available to them and who, in their view, keep letting people off with inadequate penalties. People have to be allowed to go to prison if they have offended. There is no point in saying "In order not to have so many people in prison, let us not put into prison those who ought to be in prison". Crime has to be dealt with.
Baroness Seear: I am sorry to interrupt the noble Lord, but he really has not dealt at all with the point that I made. Two or three years ago, following a previous White Paper, there was a big drop in the number of people being sent to prison. That was the policy that was then advocated. What has not been explained is why that has gone into reverse. The only explanation that some of us can find is that since then we have had a change of Home Secretary. If that is not the reason, why is it that, having reduced the numbers in prison following a government policy so to do, they have now gone up again?
Earl Ferrers: The noble Baroness knows only too well that whether people are sent to prison or are given any other form of penalty is a matter for the courts. What Parliament has done is to make available certain options for the courts to use. If the number of people in prison has gone down, there may be a variety of factors to explain that. What the courts have described as being the correct penalty may be one of them. The types of offences which have occurred may be another one. However, it is wrong to say or to insinuate that the Home Secretary has the ability to ensure that people go to prison. He does not.
Lord Avebury: But the Home Secretary has the power to determine the length of time that a person remains in prison because he has the power and duty to determine the tariff. In every case he is increasing the tariff. I know of two cases. In one he is doubling the tariff from 10 to 20 years. Ten years was the tariff suggested by the trial judge. Twenty years is the amount laid down by the Home Secretary. In the other case, 15 years was the tariff set by the trial judge. Twenty-five years is the amount laid down by the Home Secretary. The Home Secretary is enormously lengthening the time
1644
that people spend in prison although he does not have any effect on whether or not they go there in the first place.
Earl Ferrers: The noble Lord is referring to those few cases which are life sentence cases and ones in which my right honourable friend has by law a strict involvement. But no one-not even the noble Lord, Lord Avebury-would say that those cases are the cause of overcrowding in prison. Where crime has increased —and it has increased over the past years even though it may have been decreasing more recently-it is a matter of great anxiety, and Parliament and the Government have to make provision for it. What we have done is to make provision in extra building and extra prisons.
One of the reasons for that is the point that has been expressed for ages that the prison estate was not big enough and the conditions were not good enough. Those problems have been addressed. All I am trying to say, in distinction from what the noble Baroness, Lady Seear, and the noble Lord, Lord Avebury, said, is that there are plenty of people in this country who are fed up with criminals and fed up with being burgled, mugged and so on. They expect the courts to send those people to prison and not to allow them to have community service. Whether the courts do or not is a matter for them, but the fact is that those establishments have to be made available.
After that complete diversion from the facts of the amendment, all I am saying to the noble Lord, Lord McIntosh of Haringey, is that if the Committee were to accept his amendment, it would result in precisely the reverse effect of what he wishes to do. It would result in more prisoners in police cells.
I would find difficulty with Amendment No. 144HA. This is only a technicality but the noble Lord referred to a section of the Imprisonment (Temporary Provisions) Act 1980 which expired in 1992. From that section he seeks to remove words which were never actually part of it, even when it was in force. So even if the new clause were enacted, it would mean nothing and have no effect whatever. I congratulate the noble Lord on having devised such a curious and obtuse amendment.
Lord McIntosh of Haringey: A brilliant answer in the last sentence. In everything else the Minister is almost entirely wrong. The conclusion I am coming to is that the Prison Department of the Home Office should be merged with the Department of Transport. The Department of Transport, when it sees traffic congestion, has only one solution-to increase road capacity. The years of experience showing that increasing road capacity only increases traffic demand and simply transfers congestion elsewhere-and indeed increases congestion-has never sunk in at the Department of Transport. It still does not have the idea that one has to deal with traffic congestion directly rather than increase capacity.
That seems to be the attitude of the Home Office towards prison capacity. It can see that there are too many people in prison; it can see that the prisons are overcrowded; it can see that because the prisons are overcrowded, they are not doing the job that they should
1645
be doing. It is told so by the Chief Inspector of Prisons, by the noble and learned Lord, Lord Woolf, by its own Director General of Prisons and by everyone who knows anything about prisons, including the noble Lord, Lord Elton. Yet it persists in the view that the only solution is to build more prisons.
I suggest that the Government's response to this amendment is faulty in three major respects. First, it is faulty in arguing that it is not the business of government to determine how many people go to prison. I quote the noble and learned Lord, Lord Woolf, on 2nd February:
"As a result of a change of climate, the importance of avoiding custody when it is appropriate to do so has been forgotten. A factor which has undoubtedly contributed to this change of climate is that the Government, who give a lead in these matters, have abandoned preaching the need for restraint in the use of prisons. The message which is being received loud and clear by all those involved, in particular magistrates throughout the country, is that it is necessary to get tough with crime. It is that policy which is resulting in the bulk of the increase in the population of our long-suffering local prisons".—[Official Report, 2/2/94; col. 1276.]
I insist in my view, which has been supported by a number of noble Lords, that it is within the power of the Government to do something about the prison population.
The second argument which the Government use, and which a number of noble Lords, including the noble Lord, Lord Donaldson, have used, is that the problem is the expense of the alternative. Again I quote the noble and learned Lord, Lord Woolf. He said that imprisonment is an immensely expensive process and,
"should be reserved for those, and only those, for whom it is appropriate. It needs to be reiterated repeatedly"—
that is tautology—
"that if prison is used when it is not necessary, then it is frustrating, not furthering, the objectives of the criminal justice system. It is an expensive way of making the criminal justice system less effective".—[Official Report, 2/2/94; col. 1277.]
All the evidence we have is that the expense of putting more and more people into prison is not the expense of building new prisons but the expense of having people in prison who should not be there.
The third way the Government argue that my amendment is unsatisfactory is in the Minister's accusation that its effect would be to put more people in police cells. The amendment is quite explicit. It says, as the Minister recognised, that the control should be that prisons, including local prisons, should not hold more than 3 per cent. above the certified normal accommodation. But it provides in subsection (3):
"The Secretary of State may, in exceptional circumstances, issue a certificate to a prison for a specified number of places, such that this section shall not have effect for a period of three months; and copies of any such certificate must be laid before both Houses of Parliament".
The effect would be not that there would be an immediate drop in the prison population. We clearly cannot expect that. The effect would be that the excess prison population would be drawn constantly to the attention of Parliament, and it would be the Home Secretary's responsibility to do so. I suggest that the amendment, which puts that duty on the Home Secretary and brings the fundamental issue of overcrowding in prison before Parliament on every
1646
occasion when it becomes necessary, is a valuable addition and does not have the effect that the Minister suggests. I wish to take the opinion of the Committee.
Earl Ferrers: The noble Lord made an astonishing statement. He said that if the amendment were to go through, it would draw Parliament's attention to the overcrowding in prisons. Yet at the same time he has castigated the Government for building more prisons. What is the point of drawing to the attention of Parliament the condition of overcrowding if when we provide more prisons the noble Lord says that we are wrong to do so? The noble Lord said that the only reason why prisons are full is. that the Government have to get tough on crime. He may have forgotten that Mr. Blair said, "Tough on crime and tough on the causes of crime". Does the noble Lord disagree with that?
7 p.m.
Lord McIntosh of Haringey: I am delighted to have the Minister taking part in the Labour Party political process. He knows very well that I agree with Mr. Blair on that. What I am objecting to as regards the Government's policy is their proposition that only an increase in the number of prisons can solve the problem. That is the situation in which they are finding themselves because they have reversed the beneficent trend of the past three years whereby there has been a deliberate attempt, following the Woolf Report, to decrease overcrowding in prisons and to decrease the prison population. Because they have moved away from that as recently as within the last nine months, they believe that the only solution now is to build more prisons. I suggest to the Committee that the solution both from the point of view of expense and of the effectiveness of the penal system in this country, is that we should make another deliberate attempt, as we did three or four years ago, to reduce the prison population. Although that cannot be done at a stroke, what can be done is to impose an obligation on the Home Secretary to bring this matter before Parliament on every occasion when he seeks to breach civilised standards of prison accommodation.
7.1 p.m.
On Question, Whether the said amendment (No. 144D) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 120.

Division No. 1

CONTENTS

Ackner, L.

Carmichael of Kelvingrove, L.

Airedale, L.

Chapple, L.

Archer of Sandwell, L.[Teller.]

Clanwilliam, E.

Ardwick, L.

Clinton-Davis, L.

Avebury, L.

Cocks of Hartcliffe, L.

Beloff, L.

Craigavon, V.

Blackstone, B.

Craigmyle, L.

Bonham-Carter, L.

Darcy (de Knayth), B.

Boston of Faversham, L.

David, B.

Brightman, L.

Dean of Beswick, L.

Bruce of Donington, L.

Desai, L.

1628

Donaldson of Kingsbridge, L.

Monkswell, L.

Donoughue, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Mottistone, L.

Eatwell, L.

Mulley, L.

Ennals, L.

Nicol, B.

Falkland, V.

Northbourne, L.

Foot, L.

Peston, L.

Glasgow, E.

Pitt of Hampstead, L.

Glenamara, L.

Ponsonby of Shulbrede, L.

Gould of Potternewton, B.

Rea, L.

Graham of Edmonton, L.

Redesdale, L.

[Teller.]

Richard, L.

Grey, E.

Russell, E.

Halsbury, E.

Seear, B.

Haskel, L.

Sefton of Garston, L.

Hollis of Heigham, B.

Sempill, Ly.

HolmPatrick, L.

Simon of Glaisdale, L.

Hooson, L.

Slynn of Hadley, L.

Hughes, L.

Stedman, B.

Jay, L.

Strafford, E.

Jenkins of Putney, L.

Taylor of Blackburn, L.

Judd, L.

Taylor of Gryfe, L.

Kennet, L.

Thurlow, L.

Kilbracken, L.

Tonypandy, V.

Lester of Herne Hill, L.

Tordoff, L.

Lockwood, B.

Turner of Camden, B.

Masham of Ilton, B.

Weatherill, L.

Mason of Barnsley, L.

Whaddon, L.

Mayhew, L.

White, B.

McIntosh of Haringey, L.

Wigoder, L.

McNair, L.

Wilberforce, L.

Merlyn-Rees, L.

Williams of Mostyn, L.

Milverton, L.

NOT-CONTENTS

Addison, V.

Elton, L.

Aldington, L.

Ferrers, E.

Alexander of Weedon, L.

Fraser of Carmyllie, L.

Allenby of Megiddo, V.

Gainsborough, E.

Alport, L.

Gardner of Parkes, B.

Annaly, L.

Gisborough, L.

Archer of Weston-Super-Mare, L.

Glenarthur, L.

Arran, E.

Goold, L.

Astor of Hever, L.

Goschen, V.

Astor, V.

Gray of Contin, L.

Balfour, E.

Gridley, L.

Belhaven and Stenton, L.

Hailsham of Saint Marylebone, L.

Birdwood, L.

Harmar-Nicholls, L.

Blake, L.

Harmsworth, L.

Blatch, B.

Harrowby, E.

Boardman, L.

Hayhoe, L.

Borthwick, L.

Hemphill, L.

Boyd-Carpenter, L.

Henley, L.

Brabazon of Tara, L.

Hertford, M.

Brougham and Vaux, L.

Hothfield, L.

Bruntisfield, L.

Howe, E.

Butterworth, L.

Hylton-Foster, B.

Cadman, L.

Kenyon, L.

Carnegy of Lour, B.

Kimball, L.

Carnock, L.

Kintore, E.

Chalker of Wallasey, B.

Lauderdale, E.

Chelmsford, V.

Leigh, L.

Colwyn, L.

Limerick, E.

Constantine of Stanmore, L.

Long, V.

Cork and Orrery, E.

Lucas, L.

Courtown, E.

Lyell, L.

Craig of Radley, L.

Mackay of Ardbrecknish, L.

Cranborne, V.

Macleod of Borve, B.

Crickhowell, L.

Mancroft, L.

Cumberlege, B.

Marlesford, L.

De L'Isle, V.

Merrivale. L.

Dean of Harptree, L.

Mersey, V.

Denton of Wakefield, B.

Middleton, L.

Devonport, V.

Monk Bretton, L.

Dixon-Smith, L.

Montgomery of Alamein, V.

Donegall, M.

Mountgarret, V.

Dormer, L.

Moyne, L.

Eden of Winton, L.

Munster, E.

Elibank, L.

Murton of Lindisfarne, L.

Ellenborough, L.

Nelson, E.

1629

Norrie, L.

Soulsby of Swaffham Prior, L.

Orkney, E.

St. Davids, V.

Orr-Ewing, L.

Strange, B.

Pearson of Rannoch, L.

Strathclyde, L.

Perry of Southwark, B.

Strathmore and Kinghorne, E.

Plummer of St. Marylebone, L.

[Teller.]

Rankeillour, L.

Teviot, L.

Reay, L.

Thomas of Gwydir, L.

Rees, L.

Torrington, V.

Renton, L.

Trumpington, B.

Rodger of Earlsferry, L.

Tugendhat, L.

Saltoun of Abernethy, Ly.

Ullswater, V. [Teller.]

Savile, L.

Vivian, L.

Seccombe, B.

Wade of Chorlton, L.

Selborne, E.

Wakeham, L.[Lord Privy Seal.]

Shannon, E.

Wise, L.

Sharpies. B.

Wynford, L.

Simon V.

Young, B.

Skidelsky, L.

Resolved in the negative, and amendment disagreed to accordingly.

Division No. 2

CONTENTS

Addington, L.

Grey, E.

Airedale, L.

Hollis of Heigharn, B

Avebury, L.

Irvine of Lairg, L.

Blackstone, B.

Judd, L.

Carmichael of Kelvingrove, L.

Kagan, L.

Clinton-Davis, L.

Kilbracken, L.

David, B.

Kilmarnock, L.

Donaldson of Kingsbridge, L.

Lester of Herne Hill, L.

Donoughue, L.

Lockwood, B.

Dormand of Easington, L.

Mason of Barnsley, L.

Eatwell, L.

McIntosh of Haringey, L.

Glenamara, L.

McNair, L.

Gould of Potternewton, B.

Monkswell, L.

[Teller]

Morris of Castle Morris, L.

Graham of Edmonton, L.

Mulley, L.

[Teller.]

Nicol, B.

1647

Peston, L.

Taylor of Blackburn, L.

Pitt of Hampstead, L.

Taylor of Gryfe, L.

Prys-Davies, L.

Tordoff, L.

Redesdale, L.

Turner of Camden, B.

Seear, B.

White, B.

Sefton of Garston, L.

Wigoder, L.

Skidelsky, L.

Williams of Mostyn, L.

Stoddart of Swindon, L.

NOT-CONTENTS

Addison, V.

Hayhoe, L.

Ailesbury, M.

Hemphill, L.

Allenby of Megiddo, V.

Henley, L.

Alport, L.

Hertford, M.

Annaly, L.

HolmPatrick, L.

Arran, E.

Howe, E.

Ashbourne, L.

Hylton-Foster, B.

Astor of Hever, L.

Inchyra, L.

Astor, V.

Kenyon, L.

Balfour, E.

Kimball, L.

Barber of Tewkesbury, L.

Lawrence, L.

Belhaven and Stenton, L.

Leigh, L.

Blake, L.

Limerick, E.

Blatch, B.

Long, V.

Blyth, L.

Lothian, M.

Boardman, L.

Lyell, L.

Borthwick, L.

Mackay of Ardbrecknish, L.

Boyd-Carpenter, L.

MacLehose of Beoch, L.

Brabazon of Tara, L.

Macleod of Borve, B.

Brougham and Vaux, L.

Mancroft, L.

Buckinghamshire, E.

Marlesford, L.

Burton, L.

McColl of Dulwich, L.

Byron, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Carlisle of Bucklow, L.

Monk Bretton, L.

Carnegy of Lour, B.

Monson, L.

Carnock, L.

Morris, L.

Carr of Hadley, L.

Mottistone, L.

Chalker of Wallasey, B.

Mountevans, L.

Clanwilliam, E.

Mountgarret, V.

Clark of Kempston, L

Munster, E.

Colwyn, L.

Murton of Lindisfame, L.

Courtown, E.

Nelson, E.

Craigmyle, L.

Orr-Ewing, L.

Cranborne, V.

Pearson of Rannoch, L.

Cross, V.

Perry of Southwark, B.

Cumberlege, B.

Prior, L.

Davidson, V.

Rankeillour, L.

Dean of Harptree, L.

Reay, L.

Denton of Wakefield, B.

Rodger of Earlsferry, L.

Dixon-Smith, L.

Savile, L.

Donegall, M.

Seccombe, B.

Dormer, L.

Selborne, E.

Elibank, L.

Sharples, B.

Ellenborough, L.

Soulsby of Swaffham Prior, L.

Elles, B.

St. Davids, V.

Elton, L.

Stevens of Ludgate, L.

Fairfax of Cameron, L.

Strathmore and Kinghorne, E.

Ferrers, E.

[Teller]

Fraser of Carmyllie, L.

Teviot, L.

Gainsborough, E.

Thomas of Gwydir, L.

Gisborough, L.

Trumpington, B.

Glenarthur. L.

Tugendhat, L.

Goschen, V.

Ullswater, V. [Teller.]

Greenway, L.

Vivian, L.

Gridley, L.

Wade of Chorlton, L.

Halsbury, E.

Wakeham, L. [Lord Privy Seal.]

Hanson, L.

Wise, L.

Hanworth, V.

Wynford, L.

Harmsworth, L.

Young, B.

Harrowby, E.

On Question, amendments agreed to.

7.9 p.m.
Clause 85 [Arrangements for the provision of prisoner escorts]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 144E:
Page 73, line 11, at end insert:
("( ) After that subsection there shall be inserted the following subsection—
(3A) All escorts of prisoners under subsection (1) above, where the prisoner is either

(a) a category 'A' prisoner,

(b) a category 'B' prisoner, or

(c) a remand prisoner who is likely to be a category 'A' or 'B' on conviction;

shall be carried out in a secure cellular vehicle.").
The noble Lord said: I move this amendment which stands in the name of the noble Lord, Lord McIntosh of Haringey, and, if I may, I shall speak at the same time to Amendments Nos. 144F, 144G, 144M and 144N, together with Amendments Nos. 153B and 153C. Amendment No. 144E has its counterparts in Amendment No. 144M relating to Scotland and Amendment No. 153B relating to Northern Ireland. These amendments are perfectly simple and straightforward. I am sure that they fall into the category described by the Minister earlier as the sort of amendment against which it is impossible to marshal a sensible argument.
Amendment No. 144E relates entirely to the question of the escort of prisoners. It is intended to provide a statutory obligation that all prisoner escorts for Category A prisoners, Category B prisoners and remand prisoners who, if convicted, would be categories A or B, shall be carried out in a secure cellular vehicle. As is well known, at the moment secure cellular vehicles are not in sufficient supply to deal with the whole range of Category B prisoners or remand prisoners as earlier described. Quite often, dangerous prisoners or potentially dangerous remand prisoners are carried in taxis or coaches which are insecure. They are possibly dangerous to the public and are certainly likely to be dangerous to prison staff.
It seems to me that the case for Category A prisoners speaks for itself. No Category A prisoner should be moved by escort other than in a secure cellular vehicle because his designation as a Category A prisoner ought to put him into that high risk category. Category B is different. However, it includes murderers, rapists and people who have committed quite serious offences of violence. They often serve long sentences but are frequently transported in coaches and taxis on escort occasions. Perhaps I may give one example. Earlier this year, two prisoners were being transported in a coach, non-secure. Both were Category B. One of them had murdered a police officer and the other had battered a taxi driver to death. They were not properly searched and one produced a knife to a police officer's throat and threatened to kill him. Both men escaped. That would not be possible if the amendment were to be accepted.
There are too few cellular vehicles. There are only 24 in the whole of the prison service. Amendment No. 144E and the related amendments for Scotland and Northern Ireland are perfectly simple. Their purpose is perfectly plain. It is to bring an end to the use of

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non-secure escort vehicles for Category A, Category B prisoners and for remand prisoners who would be categories A or B on conviction.
As the common theme of the amendments is the escort of prisoners perhaps I may turn now to Amendment No. 144F. It would bring into existence a statutory obligation that all escorts of Category A and Category B prisoners or remand prisoners who are likely to be A or B on conviction would have to include at least one officer with first aid training to the level of St. John Ambulance first aid at work or its general equivalent. The purpose therefore is to ensure that private escorts would have at least one officer with a reasonable knowledge of medicine and with some degree of medical training. Prison service staff already have expertise of that nature and quality. Again, perhaps an example may be helpful. Last year, a prisoner, Ernest Hogg, died. He was a remand prisoner who was in the custody of Group 4 Security. His death was the first death of a prisoner on escort for a very long time.
The number of incidents which cause alarm to the public and certainly to prison staff is increasing. It is perhaps helpful to bear in mind that the training manual for Group 4 Security personnel provides for only 270 hours of training, of which only eight hours—that is, one day—is set down for medical training. That is far too little for anyone who has to deal with prisoners who may offer difficult and sometimes dangerous behaviour. Prison officers, on the other hand, do not have one day's training; they have one week's training in medical care and attention out of their total of 13 weeks. In his admirable report, the noble and learned Lord, Lord Woolf, regarded 13 weeks' training as barely enough and wished it to be extended. Again, the purpose of the amendment is perfectly plain. It is to secure the provision on a statutory basis of a certain minimum level of expertise for those involved in escort work.
Amendment No. 144G is intended to delete a provision of the Criminal Justice Act 1991 which allows the contracting out of escort services. It is a matter of pure principle. Our belief is that escort services should not be contracted out where the level of service is likely to be less than that provided by the prison service. The noble and learned Lord, Lord Woolf, recommended in his report that there should be a separate prisoner escort service. We agree. It should be part of the prison service. It should not be contracted out.
Some comparisons may be helpful. In the three and a half years before the privatisation of some parts of the prison regime, Moorlands young offenders' institute near Doncaster provided 17,000 escorts. There was no escape over those three and a half years. In the first four weeks of the contract being awarded to Group 4 Security, three prisoners were lost. Driffield town council in East Yorkshire found it necessary to write to the Home Secretary at the end of last year when four prisoners escaped in December from an escort conducted by Group 4 Security. Having escaped, one prisoner went to a local junior school and terrorised the children. Fortunately, he was recaptured without any other harm coming to the children.
We believe that such incidents are intolerable and are likely to continue unless there is a separate prison escort
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service which is properly and fully trained. It is perhaps worth bearing in mind that most escapes are not from prison custody but from escort custody. The purpose of tabling these amendments is to draw attention to that serious problem. I beg to move.
7.15 p.m.
Lord Donaldson of Kingsbridge: I fully support the amendment. I do not think that there is anything to add to it. Implementing it will cost a certain amount of money, but so will everything that has to be done if we are to put the prison service right. I believe that if the recommendation of the noble and learned Lord, Lord Woolf, that there should be a separate escort service, which should be part of the prison service and which should not be privatised, were adopted, we should get more of what we want. I believe that the amendments as moved are, without exception, satisfactory and should be carried.
Lord Mottistone: I have a friend, a taxi driver, who is frequently invited to take prisoners from one place to another. He has been doing it for 10 years to my certain knowledge and has had no trouble at all. It is easy to find examples, as the noble Lord, Lord Williams, did, of where things have gone wrong. On the whole, I think that the arrangements are working satisfactorily.
Lord Williams of Mostyn: Before the noble Lord sits down, I wonder whether his friend who is a taxi driver was carrying Category A or Category B prisoners at the time.
Lord Mottistone: He specifically never asked what sort of prisoners they were and he would not have been told if he had. In view of the fact that I come from the Isle of Wight, I think we can expect that some will be of the categories described.
Earl Ferrers: All of the amendments to which the noble Lord, Lord Williams, referred, deal with matters of escort in various ways. Amendment No. 144E and Amendment No. 144M refer to high security prisoners being carried in cellular vehicles. I do not think that it would be advisable to lay down in statute, as the amendments propose, a requirement that all prisoners in the highest security categories should invariably be carried by prison custody officers in cellular vehicles. After all, that would include all remand prisoners who would be treated as if they were Category B prisoners.
Where escorts are undertaken by the police or prison service, prisoners are transported in a variety of different types of vehicle including, as my noble friend Lord Mottistone said, taxis. They are also sometimes transported in police cars, in vans with parallel seats, sometimes in conventional minibuses, sometimes in coaches, and sometimes in cellular vehicles.
When prison custody officers in England and Wales are undertaking the escort of prisoners in the higher security categories it is normal for cellular vehicles to be used. I would be reluctant to see that become a statutory requirement. There are circumstances in which it would be inappropriate; for example, when carrying pregnant women or prisoners who are unwell. A higher level of staffing is of course required where cellular vehicles are

1651
not used. I believe, in the light of experience, that these matters would be better regulated and adjusted by contract. These arguments hold good in respect of Amendments Nos. 144E, 144M and 153B.
The amendment which the noble Lord has proposed in respect of first—aid training requires that a prison custody officer on each escort duty should be fully trained in first aid. The noble Lord, Lord Williams of Mostyn, said that there must be a minimum level of training in first aid. That is perfectly true. In England and Wales, before the prison custody officers are certified to undertake escort duties they have to undertake extensive training, including 32 hours of training in first—aid principles and techniques. Every officer on the escort—and not just one—will have undergone that kind of training. The contracts that have already been let for court escort and custody work provide for first—aid training either to be approved by the Health and Safety Executive, in accordance with the Health and Safety Regulations 1981, or to lead to St. John's Ambulance or Red Cross certificates. It is likely that any contract for escort duties in Scotland and Northern Ireland will have similar provisions.
I do not believe that it would be right to have such a requirement in primary legislation. Should different types of first—aid training be thought to be more appropriate in future it would then be impossible to make changes without amending the legislation by means of a further Bill. That would not be the right thing to do. As it is, Schedule 10 to the Criminal Justice Act 1991 already requires that prison custody officers shall not be certified by my right honourable friend the Home Secretary until the applicants have received training to such standard as he may consider appropriate for the performances of those functions. Therefore, there is a standard guarantee.
The noble Lord, Lord Williams of Mostyn, referred to Amendment No. 144G, which, in effect, prevents further contracting out. He said quite honestly and openly that this was a matter of principle and he criticised Group 4 and what happened during the first few weeks of its operation. That is understandable. I suppose that if I were arguing his case I should have done the same. But it was slightly hard because, obviously, when one starts a new enterprise—and the contracting out of these duties was a new enterprise —there are bound to be teething troubles and there were. However, most of those troubles have been overcome.
Contrary to what appeared in the press, the court escort and custody service in the East Midlands and Humberside region, which is operated by Group 4, is a distinct success. A recent survey confirmed that Group 4 was doing well. It showed that 86 per cent. of Crown Court centres, magistrates' courts, the police, prisons and lay observers in the area were all either satisfied or very satisfied with the company's performance. More than 90 per cent. of court staff rated it as better or as good as the service that went before.
Group 4's record on escapes is also much better than some people would believe. In 1993–94 the company carried out 100,656 prisoner movements and it had 26 escapes, excluding the 17 who were immediately
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recaptured. That is, of course, 26 escapes more than we would wish but it still compares well. In the year preceding Group 4's operation, 11 prisoners under escort or at court escaped from the custody of the prison service. During the first year under Group 4, there were only three escapes in similar circumstances.
That is comparing like with like. A great deal of escort and custody work which was previously carried out by the police is now carried out by Group 4. Not all forces kept records of escapes, but there is no reason to doubt that Group 4 has achieved a similar improvement in its secure handling of such prisoners. While I understand the noble Lord, Lord Williams of Mostyn, supported by the noble Lord, Lord Donaldson of Kingsbridge, not liking the idea as a matter of principle, I hope that he will accept from me that the result of what Group 4 has done compares favourably with —indeed, is better than—that which went before.
Lord Williams of Mostyn: I am grateful for the explanations that the Minister has sought to put forward. I am bound to say that if in December 1993 I were the parent of a child and four prisoners escaped, one of whom came to terrorise my child at school and I heard a Home Office Minister—whoever he or she might be—say, "These are teething troubles", I should have been distinctly unimpressed.
I must say, I hope with a degree of courtesy, that the Minister's response to the issue of cellular vehicles is not satisfactory. He suggested that prisoners who are ill or pregnant might be unsuitable for carriage in those vehicles. I cannot see the reason for that if one has properly qualified medical escorts. In any event, those categories are minuscule compared with the numbers of seriously dangerous prisoners who are being carried in insecure vehicles.
However, I am most obliged for the full answer that was given. I must confess that, amazingly, I was not convinced by it, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 144F and 144G not moved.]
Clause 85 agreed to.
Clause 86 [Powers and duties of prisoner custody officers acting in pursuance of such arrangements]:
[Amendment No. 144H not moved.]
Clause 86 agreed to.
Clause 87 agreed to.
[Amendment No. 144HA not moved.]
Clause 88 [Contracted out parts of prisons, etc.]:
[Amendment No. 144J not moved.]
Clause 88 agreed to.
Clauses 89, 90 and 91 agreed to.
Clause 92 [Provision of prisons by contractors]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 144K:
Page 77, leave out lines 5 to 7.
The noble Lord said: I shall speak also to Amendment No. 144L. A few years ago we heard from an earlier version of this Conservative Government the phrase "back to Victorian values". We do not hear much

1653
about it now—and for obvious reasons. What is proposed here is not a return to Victorian values but to Dickensian values. Members of the Committee will remember Dickens' description of the Hulks, which was given in Great Expectations. It was not a very attractive description and they were not very attractive things.
When a few years ago the Government sought to revive the Hulks—the prison ships—they did not have a very happy experience. They tried to use the "Earl William", which was moored near Harwich, in which to keep the Tamil immigration detainees. They did not use it as a proper prison but as a detention centre; there was no legal possibility of using ships for prisons. Unfortunately, apart from the unpleasantness of having a prison ship off Harwich—unpleasant for the people of Harwich—the vessel was a revamped car ferry that was torn from its moorings in the autumn of 1987 and ran aground. Despite the fact that fears about the safety of this detainment ship were expressed beforehand, the Government dismissed them.
Deliberately to bring back the possibility of prison ships into our penal system as an item of policy, even as an item of contingent policy which I am sure the Government will claim it to be, would be a real step backwards. I am not merely making the emotional Dickensian point. A ship is not suitable for use as a prison. Inevitably, it is extremely confined and it would be difficult to sustain a proper regime on a prison ship which would provide the exercise and constructive activities necessary.
I have no doubt that Ministers will say that there is still the "Queen Mary" at Long Beach. She could be brought back. She served a useful purpose as a tourist hotel for many years. But I do not believe that that is what is proposed. We are in danger of having the same revamped car ferries, or the equivalent, and they would not make good prisons. That would be an act of desperation on the Government's part. I hope that they do not mean it, and if they do not mean it they should take away the possibility from the face of the Bill. I beg to move.
7.30 p.m.
Earl Ferrers: In the eyes of the noble Lord, Lord McIntosh of Haringey, the poor old Government cannot ever do anything right, can they? We have to make provision to deal with those prisoners who are sent into custody by the courts. A little earlier the noble Lord, Lord McIntosh, said how terrible it was that those people should be put into police cells and he tabled an amendment to prevent that. In fact, the amendment that he tabled would have resulted in more people being held in police cells. He was seeking to prevent too many people being held in prison. The noble Baroness, Lady Seear, castigated the Government about the fact that there are so many people being held in prison and she said that they should not be there. The noble Lord, Lord McIntosh, castigated the Government for building prisons.
Here we are merely saying that if the worst comes to the worst, we shall have to use boats. The noble Lord, Lord McIntosh, says that we must not put people there. I do not know where he wants to put them. Perhaps he
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does not want the courts to imprison them at all, but that is a matter for the courts. We are merely trying to make reasonable provision.
The noble Lord complains when people are in police cells and complains when the prisons are overcrowded. Therefore, the Government have brought forward another measure and the noble Lord, yet again, opposes that. The noble Lord must address himself to the facts of the matter.
In the past, the prison service has considered using maritime detention facilities—that is a delightful expression to indicate the use of a hulk or a boat—in order to cope with the surges in prison population. And whatever the noble Lord, Lord McIntosh, and the noble Baroness, Lady Seear, may say, that is nothing to do with the Government. It is to do with what the courts decide.
At present there is some doubt as to whether the Prison Act 1952 allows the use of detention facilities which are not land—based. I should make it quite plain that there are no definite plans to introduce maritime detention facilities; but it is the duty of the prison service to prepare for possible contingencies and if pressure on the prison population were to become too great the use of maritime detention facilities could well be more humane than having overcrowded prisons. Their use would be considerably cheaper than using police cells. They are likely to be more acceptable to the noble Lord, Lord McIntosh of Haringey—if ever he could persuade himself that they would be more acceptable. They would be more secure than some alternatives; namely, army camps. We are merely trying to make quite certain that if those facilities are required, they could be used. There is nothing more sinister than that.
Lord Mottistone: I have served on several warships in my time which would make very good prisons. Most of them have been broken up now. Of course, to choose the sort of ship which is unsuitable is an extremely good critical point but I can think of many ships, not just warships, which would make very good prisons on a temporary basis.
Lord McIntosh of Haringey: The Minister says that I seem to disagree with everything that the poor old Government do. It is a poor old Government—is it not? —because 47 per cent. of those voting last week preferred a Labour Government and only 28 per cent. preferred this Government. Therefore, when I am castigated by the Minister, I am comforted by the thought that I am not alone. A certain number of people even voted Liberal Democrat.
I am totally reassured. What I had thought was a hulk or a prison ship is now a maritime detention facility. Now that I know that it is a maritime detention facility, everything is all right. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. I44L not moved.]
Clause 92 agreed to.
Clause 93 agreed to.
Lord Annaly: I beg to move that the House do now resume. Perhaps I may suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Merchant Shipping (Salvage and Pollution) Bill
7.36 p.m.
Lord Donaldson of Lymington: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Donaldson of Lymington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Alport) in the Chair.]
Clause 1 [Salvage Convention, 1989 to have force of law]:
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 1:
Page 2, line 5, at end insert:
("(7) A draft of an Order in Council proposed to be made by virtue of subsection (3) above shall not be submitted to Her Majesty in Council unless the draft has been approved by a resolution of each House of Parliament.").
The noble and learned Lord said: Clause 1 (1) of the Bill brings the Salvage Convention into force as part of domestic law in its present form. But subsection (3) enables the law to be revised by Order in Council to take account of any agreed revisions of the convention.
As I indicated on Second Reading, by inadvertence no provision was made for parliamentary scrutiny of the exercise of that revising power. That was pointed out by the Delegated Powers Scrutiny Committee in its report dated 24th May. This amendment remedies that omission. I beg to move.
The Parliamentary Under—Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): I am grateful to the noble and learned Lord for the amendment which he has proposed. I agree that it represents a valuable addition to the Bill.
Clause 1, as amended, agreed to.
Clause 2 agreed to.
Clause 3 [Amendments as to powers of implementation]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 2:
Page 2, line 43, leave out from ("section") to ("shall") and insert:

("(a) may make provision corresponding to the provision authorised for an Order by paragraphs (a) to (d) of subsection (4) of this section; and

(b)").

The noble Lord said: This is the first of several technical amendments which aim to correct the drafting of the Bill without altering its substance. The
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amendment would amend Clause 3 to ensure that the clause meets its objective; namely, to simplify the procedure for the domestic implementation of technical amendments to the international conventions governing the safety of life at sea—SOLAS—and the prevention of pollution from ships—MARPOL. I beg to move.
Clause 3, as amended, agreed to.
Clause 4 [Prevention of pollution from ships: further power to implement international agreements]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 3:
Page 3, line 22, at end insert:
("and provision authorising the making of regulations authorises the amendment or revocation of regulations made by virtue of paragraph (e) of the said subsection (3).").
Lord Clinton—Davis Lord Clinton—Davis moved Amendment No. 4:
Page 3, line 22, at end insert:

("(c) specifying the type and capacity of facilities in individual ports for handling waste oil, garbage and sewage; and

(d) relating to the formulae used to calculate port dues and harbour fees for the purposes of incorporating an appropriate charge for using reception facilities").

The noble Lord said: My speech for the above amendment may just be a little longer than the others. MARPOL seeks to eliminate the intentional discharge of oil into the sea. It is a very valuable convention. The deliberate dumping of fuel oil and oily bilge water constitutes the most significant source of pollution of the sea from shipping. Of course, the greatest source of pollution of the sea is from the land. The issue was dealt with very comprehensively in Section 3 of the Donaldson Report and, in particular, in the statistics given on page 21. We must recognise that intentional discharge is frequently necessary, especially so far as concerns long ocean trips because of the inadequacy or sometimes the total absence of reception facilities.
Charges which are rendered for the use of port reception facilities—which, in my view, are by no means unreasonable—nonetheless operate as a disincentive for the less reputable operators who should use such facilities but who use the latter as an argument for not so doing. Moreover, even when facilities are available, some (indeed, many masters and owners) decline to use them because they argue that delay in port represents an additional cost item. Again, that matter is dealt with in the Donaldson Report, in paragraphs 9.41 and 9.42.
Therefore, the question that arises is how, so as to implement the MARPOL convention, ships may be given some incentive to use reception facilities for the discharge of unwanted oil. How do we go about doing it? Well, to achieve that aim ports must make such facilities both convenient for use and cost effective. Therefore, the idea of providing a single, integrated fee so as to remove the disincentive of paying additional charges to dispose of waste oil arises.
In the light of the proposition that I just advanced, can the Minister say whether he has any plans to integrate harbour fees and charges for port reception facilities into a single fee which, as the Donaldson Report recommends, would remove such disincentive as there is and to which I have already referred?
I turn next to the provision of adequate port reception facilities. Under MARPOL there is an obligation on the Government to provide adequate waste oil and garbage facilities which do not cause undue delay for ships. The Prevention of Pollution (Reception Facilities) Order 1984 and the Prevention of Pollution (Reception Facilities for Garbage) Order 1988 provide those powers. But, as the Donaldson Report asserts—in paragraphs 9.39 and 9.40—based on studies by Liverpool University, that does not always happen in terms of providing adequate facilities for handling oily wastes.
Intertanko (which represents something like 80 per cent. of the owners of oil tankers throughout the world) is, as the Minister will know, deeply concerned to ensure that there are no lacunae in the provision of adequate reception facilities for chemical and other wastes so as to deter unnecessary discharges from happening. In that respect, can the Minister say what steps he will take to ensure that each United Kingdom port provides adequate facilities so as to conform to the MARPOL requirements? Is the Minister prepared to give an undertaking that a full audit will be undertaken of United Kingdom port reception facilities before the next North Sea ministerial conference?
If the Minister argues—as I suspect he might—that unilateral action on the part of the UK to remove disincentives as regards using reception facilities will not solve the problem unless corresponding action is taken by other governments who are parties to the North Sea conferences, I would respectfully say that it is the United Kingdom which has the obligation that is important so far as concerns this Chamber under the MARPOL convention. It is true that others have similar obligations, but we are concerned with the obligations which have to be carried out by this Government.
I would argue that the United Kingdom should be in the lead on the matter when the North Sea conference takes place. I believe that the Government should urge the case for improved port reception facilities in all North Sea ports and for actually providing incentives to encourage ships to use such facilities. The best way of providing such a lead would be to set the example in this country. Can the Minister give any undertakings to that effect? I beg to move.
7.45 p.m.
Lord Mackay of Ardbrecknish: I should like, first, to thank the noble Lord for moving the amendment. I do not believe that there is any disagreement between us. I entirely agree that the adequate provision of waste reception facilities in port is an essential tool in the fight against marine pollution. As the noble Lord rightly said, if we want to prevent the washing out of tanks at sea, the dumping of garbage overboard and anything else of that nature, the only way to do it is to ensure that there are facilities in the ports for vessels to use and, thereby,
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dispose of the waste material in port and not at sea. I suspect—indeed, he so indicated in his speech—that when he was tabling the amendment, the noble Lord had in mind certain recommendations of the inquiry of the noble and learned Lord, Lord Donaldson.
I hope that the noble Lord will understand that it is a little early for us to come to final conclusions about those recommendations. At present, we are working on all the recommendations, including those regarding the provision of reception facilities. I believe that I told the noble Lord on Second Reading that we were concerned about the findings of the inquiry of the noble and learned Lord, Lord Donaldson, in that area regarding the lack of reception facilities. We have asked the Maritime Safety Agency to investigate as a matter of urgency. I can tell the noble Lord that the agency is in the process of evaluating the responses received to a questionnaire sent to 350 ports, terminals and marinas.
WRC (formerly the Water Research Council) has also been commissioned to carry out an independent study of the quality of facilities in UK ports, with the results being available in September. I believe that that will mean that we shall have such information to hand well before the North Sea Conference in the spring of 1995. Taken together, those studies should provide the factual basis on which we can develop our future strategy.
The power that the noble Lord proposes in his amendment would not enhance the Government's ability to direct port authorities and terminal operators to improve waste reception facilities. The new power would simply duplicate those which already exist in the domestic regulations implementing the International Convention on the Prevention of Pollution from Ships. The proposed paragraph (c) in the amendment is, therefore, unnecessary.
I turn now to the proposed paragraph (d) which would allow the Government to direct harbour authorities to finance reception facilities out of general port dues. As I am sure Members of the Committee will appreciate, that would be contrary to the strict interpretation of the polluter pays principle. If, after study, we need to adopt that approach, we should only do so after careful study of all the possible courses of action. I believe that the aim of the amendment is to encourage ship operators to make better use of waste reception facilities and, therefore, reduce marine pollution. Of course, I fully agree with that aim. However, I believe that we need to give further practical consideration to the implications of such a change, in consultation with the ports industry and with our European partners, in order to see whether that is the best option available.
We would like to see the eventual eradication of all harmful and polluting discharges of waste from ships in the seas around the UK. The provision of adequate waste reception facilities in ports, not just in the UK but in the rest of Europe, is one useful weapon in our armoury. However, changes in the way reception facilities are provided, or charged for, raise significant issues and should only be taken forward when there is an agreed factual foundation for discussion. That foundation is not yet in place but will be provided by the

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studies that I have already mentioned. I hope that with those assurances of our intentions with regard to port facilities, the noble Lord will feel able to withdraw his amendments.
Lord Clinton-Davis: I thank the Minister for that reply. It was helpful to have this little debate because it enabled the Minister to set out his views on a matter which is of considerable importance. Of course he will be relieved to know that I am not proposing to divide the Committee tonight on this issue. I was glad to hear of the work being undertaken by the Maritime Safety Agency and indeed the independent study is also important. I was particularly pleased to note that the results of this work will be available in time for the North Sea Conference and that will be extremely important. I am not entirely happy about the other matters in relation to Amendment No. 4. I do not feel that it duplicates the powers of the Minister. However, I shall reflect on what the Minister has had to say in that regard.
As regards the port dues, the Minister observed that those would be in conflict with the polluter pays principle. However, polluters do not always pay; polluters are sometimes quite difficult to find, and sometimes they do not have the resources to pay. Therefore there may be some merit in providing facilities and then recovering payment from the polluter if that is possible. Of course the Minister will know that under the Maastricht Treaty where the court has power to fine a member state for breach of a Community regulation or directive, it is not the polluter but the taxpayer who pays. Therefore there are plenty of precedents of legislation where the polluter does not have to pay. However, I shall certainly not press the point. Perhaps we can reflect again on that point, too, in due course, but not, I hasten to add, during the course of this Bill.
I think that what the Minister has had to say tonight about the North Sea Conference and the signposts that he has referred to as regards that has well merited the purpose of tabling these amendments for debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
Clause 5 [Liability and compensation for oil pollution damage: 1992 Protocols]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 5, 6, 7, and 8:
Page 3, line 37, leave out from beginning to ("1992") in line 42 and insert:
("(a) the word "1984" shall be omitted from the section 4A(1) of the 1974 Act and the paragraph 4(a) and (d) constituting Schedule 1 to the 1974 Act as respectively inserted and substituted by Part II of Schedule 4 to the 1988 Act;".).
Page 3, line 44, leave out ("the said").
Page 3, line 46, at end insert ("and the entry for Schedule 4 to the 1988 Act shall be deemed not to have been included in Part
II of Schedule 5 to the 1993 Act (pre-consolidation repeals)").
Page 3, line 46, at end insert:
("( ) Her Majesty may by Order in Council make such provision as appears to Her Majesty to be appropriate in connection with the implementation of any transitional provisions contained in the 1992 Protocols or the Conventions
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which they amend; and any such Order may in particular provide, in relation to occurrences of any description specified in the Order—

(a) for provisions of the 1971 Act or the 1974 Act to have effect—

(i) to such extent as is so specified, as if Schedule 4 to the 1988 Act were not in force, and

(ii) to such extent as is so specified, as if that Schedule were in force;

(b) for any such provisions to have effect (whether as amended by that Schedule or not) subject to such modifications as are so specified.").

The noble Lord said: I told the Chamber at Second Reading that the 1992 Protocols superseded the Protocols of 1984. The Merchant Shipping Act 1988 would have implemented the 1984 Protocols. Clause 5 of the Bill therefore uses the 1988 Act to implement the 1992 Protocols, in essence by removing references to the 1984 Protocols from the 1988 Act. As currently drafted, Clause 5 does this only incompletely. Amendment No. 5 would ensure that all references to the 1984 Protocols are eliminated from the 1988 Act. Amendment No. 6 is consequential. The use of the 1988 Act to implement the 1992 Protocols had not been foreseen when the Merchant Shipping (Registration, etc.) Act 1993 was drafted. That Act therefore provided for the repeal of provisions of the 1988 Act. Amendments Nos. 7 and 8 would ensure that this does not prevent implementation of the 1992 Protocols by Clause 5 of this Bill. I beg to move.
Clause 5, as amended, agreed to.
Clause 6 [Extension of strict liability for oil pollution by ships]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 9:
Page 4, line 6, leave out from second ("in") to end of line 7 and insert ("on other ships liability for oil pollution corresponding to that imposed on tankers)").
The noble Lord said: Amendment No. 9 would remove an erroneous reference to "non—tankers" from Clause 6. Clause 6 extends to other ships the regime of strict liability which the International Convention on Civil Liability for Oil Pollution Damage 1969 applies to certain oil tankers. The clause currently gives the impression that the regime would be extended to non—tankers. This is not entirely accurate. Clause 6 will make all shipowners—including those tanker owners not previously covered—strictly liable for oil pollution. Amendment No. 9 therefore makes clear that Clause 6 would impose on other ships liability for oil pollution corresponding to that imposed on tankers by the 1971 Act. I beg to move.
Lord Clinton-Davis: I wish to congratulate the Minister on his perspicacity for being able to observe the omission.
On Question, amendment agreed to.
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 10:
Page 4, line 14, at end insert:
("(4) Where the amendments of the 1971 Act made by Part II of Schedule 3 to this Act come into force after the 1971 Act has been amended by Part I of the said Schedule 3, Parts I and II of that Schedule shall have effect with the modifications specified in Part III of that Schedule").
The noble and learned Lord said: In moving Amendment No. 10, with the leave of the Committee I wish to speak also to Amendments Nos. 17 to 28 inclusive.
As the Minister has just informed the Committee, Clause 6 extends to other ships the regime of strict liability for oil pollution, which the International Convention on Civil Liability for Oil Pollution Damage imposes for oil tankers. Clause 6 does this by means of amendments to the UK Act implementing the convention, which are set out in Schedule 3.
Amendments Nos. 10 and 28 clarify that the amendments set out in Part II of Schedule 3 replace those set out in Part I. The amendments of Part I and Part II both achieve the same effect, but in different circumstances. The Part II amendments are therefore instead of, not in addition to, the Part I amendments. Amendments Nos. 10 and 28 would amend Clause 6 and Schedule 3 to make this clear. Amendments Nos. 17 to 27 inclusive correct oversights and improve the drafting of Schedule 3. I beg to move.
Lord Clinton-Davis: Just in case the noble and learned Lord might take offence, having congratulated the Minister on his perspicacity I want to mirror that remark as far as the noble and learned Lord is concerned.
On Question, amendment agreed to.
Clause 6, as amended, agreed to.
Clauses 7 to 10 agreed to.
Schedule 1 [International Convention on Salvage, 1989]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 11:
Page 12, line 32, leave out from ("involved") to end of line 34.
The noble Baroness said: The aim of this amendment is to maintain the status quo as regards the right to a reward for salvage from an historic wreck, and to make clear that it is to be treated on the same statutory basis as all other salvage. I will briefly explain why it is necessary.
There is at present a single legal regime for all salvage including historic wreck, whether or not the wreck is specifically designated under the Protection of Wrecks Act 1973. This regime gives a right to reward and thus provides an incentive to salvors, both amateur and professional, to report their finds. In the case of historic wreck, it provides finders with an incentive not to be tempted to evade the obligation to report finds which may be of great archaeological importance. This right to reward is a long established principle of salvage law and it is an equitable right. The Government see no reason at present to change this position.
In 1989, at the time of the negotiations concerning the Salvage Convention which is being put into law by this Bill, it was agreed that any signatory state could make a reservation in respect of,
"maritime cultural property of prehistoric, archaeological or historic interest on the seabed".
The Government said at the time, and have repeated since, their intention to make that reservation when ratifying the convention. We intend to do so. This will leave open the possibility of altering the legal regime in
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respect of such maritime cultural property, if at some future date that should be thought desirable, without breaching the convention.
When the Bill was first in the course of preparation it was supposed that a reservation ought to be reflected in the implementing legislation. Consequently, paragraph 2(1) (c) of Part II of Schedule 1 to the Bill would have excluded maritime cultural property on the sea bed from the scope of the convention as implemented in the UK.
By excluding the salvage of maritime cultural property on the sea bed from the scope of the convention at the same time as repealing Section 546 of the Merchant Shipping Act 1894 the Bill would have removed the statutory right of a finder of maritime cultural property on the sea bed to claim a reward in respect of wreck from the property owner, where one could be identified. Other rights to reward such as unclaimed property reported to the Receiver of Wrecks would not be affected.
Amendment No. 11 therefore takes out of the Bill the clause that would have excluded such maritime cultural property on the sea bed. In doing so it restores the full statutory right to salvage rewards in respect of any finds from historic wrecks on the same basis as all other salvage. I beg to move.
8 p.m.
Lord Clinton-Davis: I am a little puzzled. I am always delighted to see the noble Baroness in the Chamber and at the Dispatch Box, but I cannot understand why she is there this evening. Is it the case that this is a matter for the Department for National Heritage rather than the Department of Transport? Or is it that she felt that the transport Minister is in need of her help and sustenance tonight? Or is it a combination of the two? Having said that, I do not in any way want to disparage her appearance in the Chamber. I am merely intrigued.
Baroness Trumpington: Apart from the fact that I am an ancient wreck, I am representing the excellent Department of National Heritage, whose concern this is.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Salvage: Consequential and Related Amendments]:
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendments Nos. 12 to 16:
Page 14, line 25, after ("1947") insert ("for the words "the provisions of this Act" there shall be substituted the words "section 29 (so far as consistent with the International Convention on Salvage, 1989 as set out in Schedule 1 to the Merchant Shipping (Salvage and Pollution) Act 1994)" and").
Page 15, line 26, leave out ("or").
Page 15, line 27, at end insert ("or
(iii) in the nature of salvage not falling within (i) or
(ii) above;").
Page 16, line 4, leave out ("or"). Page 16, line 5, at end insert ("or
(iii) in the nature of salvage not falling within (i) or (ii) above;").
The noble and learned Lord said: I wish to move Amendments Nos. 12 to 16 en bloc and to speak also to Amendment No. 29. These are amendments to Schedules 2 and 4.
At Second Reading I informed the House that I was concerned that the Bill should not restrict the jurisdiction of the Admiralty Court. In saying that I was replying to a speech by the noble Lord, Lord Byron. After consultations, I am now glad to propose amendments which I believe should meet with the approval of all parties, including the noble Lord.
Amendments Nos. 13 to 16 would amend Schedule 2 to ensure that the Admiralty Court—both in the sense in which we normally use the term; namely the High Court in Admiralty, and in the county court in so far as it has an admiralty jurisdiction—has jurisdiction to hear any claim under the salvage convention, any claim in relation to a salvage contract and any other claim (and I use those words almost in quotes as they were used in the original Supreme Court Act) in the nature of salvage. This in no way represents a derogation from the salvage convention. When there is a conflict between the convention and the common law the convention, if its terms apply, will take precedence. The amendments merely ensure that the competent court will be able to rule on any dispute.
I have also proposed amendments to make minor changes to the Crown Proceedings Act 1947 which are consequential upon the implementation of the salvage convention. Those are Amendments Nos. 12 and 29. I beg to move.
Lord Byron: Having raised the matter at Second Reading perhaps I may take this opportunity to thank the noble and learned Lord, Lord Donaldson, for his assistance, and indeed persistence, in bringing forward the amendment. It is an important amendment retaining the historic jurisdiction of the Admiralty Court in relation to claims in the nature of salvage.
I should also like to thank my noble friend on the Front Bench and his department, as I understand that he will accept the amendment.
Lord Mackay of Ardbrecknish: I thank my noble friend Lord Byron for those remarks. He is quite right. We are happy to accept the amendments proposed by the noble and learned Lord to the jurisdictional provisions of Schedule 2. I am slightly relieved that such an eminent legal person as the noble and learned Lord moved the amendments because even if I do not totally understand the matter I am sure that he does.
The amendments are fairly technical. Our main concern regarding the use in the Bill of references to claims in the nature of salvage has been that such wording might be understood as sanctioning the continuance of some types of claim which might otherwise be inconsistent with the convention as given the force of law in the United Kingdom by the Bill. The sanctioning of such claims by the Bill would mean derogating from the convention. As I stated at Second Reading, we cannot do that.
I accept, however, that Amendments Nos. 13 to 16, properly understood, relate only to jurisdiction and do
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not affect the substantive law. Therefore, if, for example, the giving of a salvage reward for so—called engaged services is inconsistent with the terms of the convention, then the amendments that we are considering now will not have the effect of derogating from the convention or of enabling a court or arbiter to make a salvage award inconsistent with the provisions of the convention.
Clause 1(1) of the Bill provides that the convention as set out in Schedule 1 is to have the force of law in the United Kingdom. It follows that no rule of law relating to salvage can continue in force if that rule is inconsistent with the convention. The law in the convention will supersede any existing rule of salvage law where there is any inconsistency. That principle is not diminished by the jurisdictional provisions contained in Amendments Nos. 13 to 16.
On that basis I welcome the amendments and support them.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 [Extension of strict liability for oil pollution by ships]:
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 17:
Page 16, line 28, after second ("any") insert ("persistent").
Lord Donaldson of Lymington moved Amendments Nos. 18 to 28:
Page 16, line 44, after ("threat") insert ("of damage being").
Page 16, line 45, leave out from ("by") to ("a") in line 46 and insert ("the contamination which might result if there were").
Page 16, line 46, after ("of) insert ("persistent").
Page 17, line 28, at end insert ("persistent").
Page 17, line 44, after ("any") insert ("persistent").
Page 18, line 35, at end insert:
(" . In section 20(2) (interpretation of references to the owner of a ship)—

(a) after the words "in a ship" there shall be inserted the words ", or from a relevant threat of contamination,"; and

(b) at the end, there shall be inserted the words "or (as the case may be) in the threat of contamination".").

Page 18, line 38, at beginning insert:
(" . In section 1(2) of the 1971 Act (liability for threat of oil pollution), for the words "contamination resulting from" there shall be substituted the words "the contamination which might result if there were"").
Page 19, line 4, after ("damage") insert ("being").
Page 19, line 6, leave out ("contamination resulting from") and insert ("the contamination which might result if there were").
Page 19, line 46, at end insert:
(" . In section 13 (jurisdiction of United Kingdom courts, etc.)—

(a) in subsection (2) (b), for the words from "damage" to the end there shall be substituted the words "such damage in the area of the United Kingdom"; and

(b) in subsection (2A) (b), for the words from "damage" to the end there shall be substituted the words "such damage in the area of another Convention country".").

Page 20, line 2, at end insert:
("PART III
MODIFICATIONS OF PARTS I AND II

1.The section 1A inserted by Part II shall be substituted for the section 1A inserted by Part I.

2. The section 2A inserted by Part I shall cease to have effect.

3. The section 3A inserted by Part I shall cease to have effect.

4. The reference to section 1A inserted in section 9 and in section 15 shall be construed as referring to the section 1A

substituted by Part II for the section 1A inserted by Part I, and the omission in section 15 of subsection (1) by Part II shall be treated as effected by the corresponding omission by Part I.").

Schedule 3, as amended, agreed to.
Schedule 4 [Repeals]:
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 29:
Page 20, line 13, at end insert:

("1947 c.44.

Crown Proceedings Act 1947.

In section 30(1), the words "and the limitation of actions in respect of salvage services".").

Schedule 4, as amended, agreed to.
House resumed: Bill reported with amendments.
Viscount Goschen: My Lords, I beg to move the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.10 p.m. to 8.35 p.m.]

Criminal Justice and Public Order Bill
House again in Committee.
Clause 94 [Arrangements for the provision of prisoner escorts]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 144M:
Page 79, line 36, at end insert:
("( ) All escorts of prisoners where the prisoner is either—

(a) a category 'A' prisoner;

(b) a category 'B' prisoner; or

(c) a remand prisoner who is likely to be a category 'A' prisoner

or category 'B' prisoner on conviction; shall be carried out in a secure cellular vehicle.").
The noble Lord said: Perhaps I may formally move the amendment. It is a probing amendment which seeks the view of the Government. It is an amendment to ensure that there is proper security in the prison service. I beg to move.
Lord Fraser of Carmyllie: My understanding of the matter was that, although Amendment No. 144M required to be formally moved, it was indeed part of the grouping with Amendment No. 144E. I hope that the noble Lord will accept that some consideration was given to the matter. On reading Hansard, I hope that it will be appreciated that the Government have prepared an answer.
While I recognise the thinking underlying the amendment, I hope the noble Lord will be assured that the proposal, far from bringing about a proper security for those moved in cellular vehicles, would in certain circumstances be possibly disadvantageous. For example, for Category B prisoners to be moved in the fashion proposed might be seriously damaging. If a Category B prisoner were unwell the proposal would mean that he had to be moved in a cellular vehicle rather than in an ambulance. I am sure that while the noble Lord wishes to be reassured on the issues of security, there may be exceptional circumstances. It would be
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clearly undesirable if, say, a prisoner who suffered a heart attack were taken to hospital in a cellular vehicle rather than an ambulance.
Lord Macaulay of Bragar: I am grateful to the Minister for that answer which I am sure will be looked at closely by those concerned with the transport of prisoners. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 144N:
Page 79, line 36, at end insert:
("( ) All escorts of prisoners shall include at least one officer who has first aid training to the level of St. John Ambulance 'First aid at work', or equivalent.").
The noble Lord said: This amendment may have been discussed before. I apologise to the Minister for not having been here earlier; I have just arrived from the north. There is an obvious reason behind the amendment, and I am sure the Minister will take it in the spirit in which it is put before the Committee. I look forward with interest to hearing what he has to say about it. I beg to move.
Lord Fraser of Carmyllie: Again, I understand that the issue was discussed in a previous group of amendments. I doubt whether it is helpful to include this kind of requirement in primary legislation. Should different types of first aid training be thought to be more appropriate in future, it would be impossible to make changes without amendment to the legislation.
The point that the noble Lord wishes to make is perfectly well understood. The desirability of individuals involved in this work having a clear understanding of first aid is obvious. However, to be as prescriptive as the amendment suggests is, in the longer term, undesirable. I hope that the noble Lord will withdraw the amendment.
Lord Macaulay of Bragar: Once again, I am grateful to the Minister for that explanation. No doubt the matter will be considered by those responsible for the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 94 agreed to.
Clause 95 agreed to.
Clause 96 [Powers and duties of prisoner custody officers performing escort functions]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 144P:
Page 80, line 32, at end insert:
("( ) Nothing in this section shall entitle a prison custody officer to read any file or papers obtained under a search which are protected by legal privilege.").
The noble Lord said: The amendment is quite important because it raises constitutional questions. Difficulties have arisen about access to prison by solicitors and legal advisers to prisoners, sometimes for perfectly justifiable security reasons. I am sure that the Minister will be aware of the various instances which have caused great anxiety. Sometimes there is right on both sides and wrong on both sides and it is to be hoped that the amendment will do something to focus attention on the problem where a solicitor or counsel or both

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arrive at a prison to consult their client or arrive at a court in Scotland. Where there is a security problem, it often happens that access either to the court or to the prison may be limited for security reasons and a search is necessary.
The amendment raises the question of confidentiality between the client and the solicitor and counsel acting on his behalf. It is meant sharply to focus on the problem, as I hope it does, where the legal adviser or advisers have in their possession papers which are, to say the least, sensitive, relating perhaps to a murder trial or a prevention of terrorism trial. It is necessary for the legal advisers to carry those papers with them for the purpose of consultation. On the other hand, it is necessary for the protection of society that the search should take place to ensure that nothing is taken into the prison by the advocate or the solicitor.
In my view, no one is immune from that type of search. But the amendment is meant to focus on the issue that there is a question of confidentiality. It is meant to focus on the point that a prison officer carrying out a search of a solicitor's or an advocate's case is not allowed to read the papers nor to examine documents. The officer's position should be no different from that of a person searching Members of your Lordships' House going through an airport. In other words, you hand the people at the desk your newspapers, whatever they may be, and your brief case. They flick through them and if there is nothing in the papers that is detrimental to safety, you are allowed to go through.
The difficulty is that if the rule is not laid down firmly to the prison authorities, a prison officer is not bound by confidentiality between the client and his advisers. The hypothetical situation is that a prison officer may search the papers, read them and find sensitive documents which may reveal a crime—whether or not it is the one under investigation is by the way—but the officer has no duty of confidentiality. He may well report it to his senior officer and up the line to the higher echelons in the Crown Office, leading to further charges against the individual concerned.
The amendment is put down to focus the issue and to evoke a response from the Government. We would not expect a reply immediately, but it is a matter for consideration and instruction to the prison authorities that they must not interfere with the due process of law and the confidentiality which exists between a client and his legal advisers in any crime, no matter how heinous it may be. I beg to move.
Lord Carmichael of Kelvingrove: Perhaps I may add to what my noble friend said on the reading of correspondence. I do not think the noble and learned Lord was in the Government at the time but many years ago I had a problem with Glenochil. Who has not? I checked the matter very carefully. One or two officers were reading out letters from prison inmates at the morning breakfast break. The case which I raised is all in the files of the Scottish Office. It was of a highly intelligent, well educated girl who wrote to her brother. He was in Glenochil. It was not just one letter: several were read out at breakfast to the whole table.
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We want that cleared up, but it is vitally important that we reinforce the point. An intimate letter was sent from a girl to her brother. They were separated by only two years in age and were very close. That intimate letter was read out by a prison officer. That was cruel. I mention the matter now to enable the Government and the Minister to make clear that such things are not allowed to happen in any prison, and particularly in regard to younger people in Glenochil.
Lord Fraser of Carmyllie: What the noble Lord describes as "cruel" is not only cruel but disgraceful. I would consider that disciplinary action was appropriate for any prison officer who engaged in such activity.
I appreciate the anxiety of the Opposition to range wider than the clause but it may be helpful to say that it relates to searches by prisoner custody officers on escorting duties. In the clause we are not dealing with the broader issue of the examination of correspondence within a prison. Nevertheless, having said that, I understand the anxieties that where there is correspondence between a prisoner and his legal advisers, safeguards should be in place.
The noble Lord, Lord Macaulay, is a distinguished lawyer and will understand that in terms of his amendment those matters which are protected—to adopt his terminology—by "legal privilege" embrace quite a wide range of communications. They may have nothing to do with the criminal charges that the prisoner faces but may relate to communications not only between the prisoner as a client in consistorial matters but also to communications between the prisoner and his wife or spouse who would enjoy certain privileges in those circumstances.
I am sure that the noble Lord, will appreciate that it is essential for security purposes that the prisoner custody officers and prison officers presently undertaking escort duties should have the power to search all items for prohibited articles such as knives or drugs. It is clearly not impossible that such items may be concealed in papers or in correspondence.
However, subsection (6) of the clause includes provision to the effect that prison rules may be made in relation to the power of search. The 1952 rules were amended last year to include new provisions relating to correspondence between a prisoner and his legal adviser —and not only his legal adviser, but also in relation to any court. That, as we all know, includes European courts. All such correspondence may be opened only where there is cause to believe that it contains a prohibited article. Correspondence with a legal adviser may be read only in those exceptional circumstances where the governor has reasonable cause to believe that the contents of the letter endanger the security of the prison or the safety of any person, or relate to a criminal activity. Correspondence between a prisoner and a court may not be read even if it has been opened.
It would be our intention to apply these rules to the escorting of prisoners by prisoner custody officers, although clearly it is unlikely that there will be much need of that compared to the situation in any prison. On the basis of the explanation that I have offered to the Committee I hope that it will be accepted that the thrust

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of their concern is indeed met, but the blanket provision of the amendment that they have suggested could in very limited and exceptional circumstances prejudice security. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. I know from our long association that he is a man of great humanity and that he understands the problems that exist between prisoners and advisers, the courts, and so on.
There is one matter on which I have some concern. The Minister accepted the terrible situation which my noble friend Lord Carmichael of Kelvingrove spoke about. For that to happen is quite unconscionable. It is a terrible event to happen to anybody in the Prison Service. I am glad that he has taken note of what happened, as I would expect him to do, and I hope that he will make sure that instructions go out in relation to that matter. If that horrific practice still exists, none of us would condone it on either side of this Committee.
I am anxious to emphasise the difference between correspondence and confidentiality between the solicitor, or the legal adviser, and the client. What a prisoner cares to write to his wife or his partner is a matter for the prisoner. What the European courts may make of prison officers opening correspondence, and so on, and censoring it, so to speak, is another matter. A warning shot has been fired across the Government's bows that that must not be done and that people must be free to correspond with each other, subject to questions of security.
What this amendment is really concerned with—I go back to focus it—is that legal advisers to prisoners in prison should have free access to the prison, subject to the normal searching routine, and nothing that is in the papers should be read by anyone in any official position in the prison who is under no obligation of confidentiality and who might be in a position to reveal the content of the papers to higher authorities. That is the purpose behind the amendment. But having heard what the noble and learned Lord said—
Lord Fraser of Carmyllie: I cannot give the noble Lord that undertaking. There may be circumstances which are exceptional when that correspondence would be read. I do not think that it is desirable or is a practice that should happen on regular occasions, but it has to be reserved if the governor should have reasonable ground to believe that the security of the prison might be prejudiced in some way.
I certainly accept the point that the noble Lord makes that where such an intervention is made it is not to be undertaken for the purposes of revealing a defence to the prosecutor.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. What he has said is in keeping with what I hope is the friendly nature of this discussion. I hope that what we have said will be taken note of in the appropriate places and that, if it is necessary, instructions will be sent out from the Scottish Office to the Prisons Department to emphasise what has been said in the course of this debate. That
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would be so much the better. I leave it to the Minister to formulate any instructions or advice that might be. sent out to the prison authorities. With that reservation I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 96 agreed to.
Clause 97 agreed to.
Clause 98 [Contracting out of prisons]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 145:
Page 81, line 26, after ("him") insert (", or (if the contract so provides) by sub-contractors of his,").
The noble and learned Lord said: In moving Amendment No. 145 I shall speak also to a large additional number of amendments: Amendments Nos. 146 to 153. I am more than happy to go through these amendments with Members of the Committee if that is desired, but it is my view that these amendments are of a technical nature. They relate to the restriction in the clauses which would not allow for any sub-contracting within the type of arrangement that might be contemplated. We would like to allow for that; hence the amendment.
If there were to be any such arrangements, including sub-contracting, they would be spelt out in detail in the contract between the Secretary of State and the main contractor, and they would be allowed only with the approval of the Secretary of State. Amendments Nos. 146 to 153 are consequential amendments. I beg to move.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 146 and 147:
Page 81, line 40, leave out ("and").
Page 81, line 42, leave out ("to run it") and insert:
("with the Secretary of State for the running of it; and "sub-contractor", in relation to a contracted out prison, means a person who has contracted with the contractor for the running of it or any part of it.").
9 p.m.
Clause 99 [Officers of contracted out prisons]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 148 and 149:
Page 82, line 32, leave out ("shall") and insert ("and any sub-contractor of his shall each").
Page 82, line 37, after ("contractor") insert ("or, if the contract provides for the running of the prison by a sub-contractor, by the sub-contractor").
Clause 99, as amended, agreed to.
Clauses 100 to 102 agreed to.
Clause 103 [Intervention by the Secretary of State]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 150 and 151:
Page 84, line 27, leave out ("shall") and insert ("and any sub-contractor of his shall each").
Page 84, line 40, after ("contractor,") insert ("any sub-contractor of his,").
Clause 103, as amended, agreed to.
Clauses 104 to 106 agreed to.
Schedule 6 agreed to.
Clauses 107 and 108 agreed to.
Clause 109 [Interpretation of Chapter II]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 152 and 153:
Page 87, line 45, leave out ("and").
Page 88, line 2, at end insert ("; and "sub-contractor" has the meaning given by section 98(2) above.").
Clause 109, as amended, agreed to.
Clause 110 [Arrangements for the provision of prisoner escorts]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 153A:
Page 88, line 37, at end insert ("other than in the case where a prisoner is a terrorist or suspected terrorist").
The noble Lord said: This is a short but important amendment. The rubric for Chapter III, the first clause of which is Clause 110, is "Northern Ireland". The amendment therefore relates only to the affairs of Northern Ireland. Its purpose is to remove the possibility in Northern Ireland of privatised prisoner escort companies carrying prisoners who are terrorists or suspected terrorists. We adopt the position that it would be grossly irresponsible to allow the carriage of prisoners who are terrorists or suspected terrorists by privatised companies in Northern Ireland.
The whole experience of Northern Ireland over the past 25 years at least points very powerfully to the opposite conclusion. In another place the Home Office Minister, Mr. Maclean, said:
"I do not want to rule out the idea altogether and say no to the proposition that terrorist prisoners may be thus conveyed".
That is to say, conveyed by privatised security companies. The purpose of this amendment is to rule that out entirely. The circumstances are quite plain. First, the lesson of history is there to be learnt. Secondly, many Group 4 staff or staff in other similar companies are recruited on the basis of no previous experience whatsoever. That is in very strong contrast to the enormous experience and expertise of those who labour in the prison service in Northern Ireland and in particular members of the Royal Ulster Constabulary. They have the expertise and the knowledge, and they know how to deal with transporting terrorists or suspected terrorists who, by absolute definition, are likely to be high risk prisoners.
One should not forget that since 1979 no fewer than 29 prison officers in Northern Ireland have lost their lives; and in this Chamber we know all too well how many RUC officers have been murdered. Our objections therefore are those of principle, of practice and of recent history. That is the purpose of the amendment. It needs no further commendation. I beg to move.
Lord Donaldson of Kingsbridge: I should like to support the amendment fully. I have some knowledge of Northern Ireland behind me.
Lord Monson: I hope that the Government have not decided in advance automatically to oppose all amendments moved from the Opposition Benches. This amendment seems to be eminently commonsensical and wholly devoid of any party political connotations. Therefore I think it worthy of support by the Committee as a whole, irrespective of party affiliations.
Lord Fraser of Carmyllie: There is no attitude of automaticity in that any amendment proposed from the Opposition Front Benches should be rejected. Indeed, with regard to the type of case referred to by the noble Lord, Lord Williams, I doubt that there is a cigarette paper between us in terms of its importance. It may be politically incorrect these days to say that; but I am sure that the noble Lord understands what I mean.
In reply to the noble Lord, Lord Monson, clearly it is highly unlikely that in the foreseeable future there would ever be any circumstances in which high risk terrorists would be escorted in that way. The basis of my resistance to the amendment is not that the Government do not understand the very grave risks attached to the escort of such terrorist prisoners; it is that the amendment wrongly assumes that all terrorist prisoners within Northern Ireland are the same and that they all pose an equal threat to good order. There have been several occasions on which the police and the courts have accepted that a person charged with a scheduled or terrorist offence—the way to appreciate the matter in Northern Ireland is to understand that rather than terrorism being defined there are a number of scheduled offences—has been on the periphery of the terrorist organisation or that his role in the offence has been very minor. That is probably best demonstrated by the fact that in some circumstances such people may even be granted bail. But at the other end of the scale a person may be accused of pulling the trigger in a shooting incident and being a committed terrorist. Under the legislation, in both cases the person would be, in a sense, classified as a terrorist; but they hardly pose the same risk or threat.
Similarly, those prisoners who are already serving a sentence for terrorist offences pose different risks and threats. For example—it is not a hypothetical one—a prisoner who has shown remorse and renounced violence or is coming to the end of his sentence is clearly less of a risk than a prisoner who seeks to justify his outrageous actions, shows no remorse and still has a substantial part of his sentence to serve.
I would suggest to your Lordships, therefore, that it would be wrong to rule out the possibility of some lower—risk terrorist prisoners being escorted by the private sector at some time in the future. I hope that, given a clear understanding on the part of the Government that there are high—risk terrorists who need to be regarded in a clear and separate category, the noble Lord will appreciate that this amendment can be withdrawn.
Lord Williams of Mostyn: I am sorry to say so, but this simply is not good enough. I have the honour and privilege to speak for our party on Northern Ireland affairs, and it is something that one approaches, I hope, with a decent respect and humility. We are talking about

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terrorists. I recognise that some terrorists may be more dangerous than others, but, for my part, I would find it impossible to speak to a prison officer in Northern Ireland or a member of the RUC or of the security forces and to say to him in respect of someone who had been apprehended, very often as a result of inquiries which involve the police and the security forces in danger and which put prison officers in certain danger—not only when they are at work but in their own domestic circumstances, as we know too well—"Ah, these were minor terrorists we have contracted out". I could not find it in my heart to stand there and look at them.
The support that I have received has been extremely moderate in its tone and content. This is not a party political matter: it is much too important. Perhaps I may trespass on your Lordships' patience for a moment. The Minister rightly describes a terrorist as someone who may be the object of a scheduled offence. That means that he is a particular creature in our criminal law. He is the object of special legislation. He is the object of special trials without a jury. He is the subject of confiscation orders, which are not applicable in ordinary criminal cases except perhaps in drug trafficking. He is capable of being the subject of adverse inferences from his silence. There are gradations, but I put no terrorist or suspected terrorist in any category other than that of a potential grave risk to the people who have to deal with them.
Let us look at one or two further points which have been brought to my attention by those who do public service in Northern Ireland in circumstances that we can hardly begin to understand. The Minister speaks of a prisoner who may have repented of terrorism—true, some do but very few, as it happens. However, those who do so are likely to be the object of their former terrorist colleagues wanting to kill them, wanting to free them from custody, to torture them, to do them harm, to abuse them and to find out what information they may have conveyed. These are not alarmist scenarios: they are the common currency of daily life for prison officers and RUC members in Northern Ireland. If there is danger to prisoners in those circumstances, self—evidently there is danger to staff. The staff must be properly trained. They must be part of an ordered, disciplined service: namely, the RUC or the Prison Service.
I am very sorry to say this. The Minister said that there was hardly a cigarette paper between him and me, and I am always attracted by that Rizla school of jurisprudence and legislation. But I have to say that I doubt whether the Minister convinced himself. I equally deeply doubt whether he convinced anyone else in your Lordships' Chamber. I shall withdraw this amendment with your Lordships' leave on this occasion, but I intend to return to it because this is much too serious a matter to be dealt with by such a thinly—attended Committee at this time of night.
I point out, I hope without undue pomposity, that we have duties which we must discharge in this Chamber to those who are in the front line. I do not think that we do them justice or decency by allowing these things to go
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through at this time of night in this way. With your Lordships' leave, I shall withdraw my amendment tonight, but I shall return to it.
Lord Fraser of Carmyllie: Before the noble Lord sits down, I am sorry if he does not like my cigarette paper metaphor—I will try to think of another one before we return to this matter in the future. However, given his great knowledge of these matters, I hope he will reflect on this before we return to it. As he will appreciate, those offences which fall within the schedule, if they happen to be unrelated to terrorism, require to be de—scheduled. It may be that in certain circumstances we could make unnecessary difficulties for those who are not terrorists, and it may be that some months may occur before such a de—scheduling decision is taken. I do not ask the noble Lord to respond to me at this time. It may be something that we can return to at a later stage.
Lord Williams of Mostyn: I am happy to respond. As a devoted life—time non—smoker, I have no particular objection to any particular cigarette paper. I want to avoid pomposity, but we have a duty not only to this House but to people who are at the frontline. If the Minister is suggesting that a form of words may be available or that a distinct indication of government policy may be available, I would be more than happy to go along that path with him, as I am sure the noble Lords, Lord Monson and Lord Donaldson, would be as well. However, this seems to be a classic illustration of what we should be doing in this House; namely, assisting the passage of fruitful legislation. As I said earlier, I shall withdraw the amendment on this occasion but intend to return to the matter. I very much hope that before the next stage I will receive a letter from the Minister indicating a sensible, appropriate and workable arrangement. Since I am not only a lifelong non—smoker but a lifelong optimist, I shall sit down.
Amendment, by leave, withdrawn.
[Amendments Nos. 153B and 153C not moved.]
9.15 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 153D:
Page 89, line 7, leave out ("for committal, a warrant for") and insert ("of commitment, a warrant of).
The noble and learned Lord said: This is a technical amendment to correct a drafting error in the definition of a warrant. I beg to move.
Clause 110, as amended, agreed to.
Clauses 111 to 114 agreed to.
Schedule 7 agreed to.
Clauses 115 to 117 agreed to.
Clause 118 [Service in England and Wales and Northern Ireland]:
[Amendment No. 153E had been withdrawn from the Marshalled List.]
Baroness Turner of Caniden Baroness Turner of Caniden moved Amendment No. 153EA:
Page 92, line 23, leave out from beginning to ("subsection") in line 24.
The noble Baroness said: On behalf of my noble friend Lord McIntosh, I rise to move this amendment and to speak to Amendment No. 153F. Both amendments are concerned with industrial relations in the Prison Service. They are slightly different, but they have been grouped.
The objective of the first amendment is to ensure that prison officers who took industrial action before the enactment of the Bill cannot be taken to court on the grounds that at the time the prison officers did not have the right to take such action. As I understand it, Clause 118 gives the Prison Officers' Association trade union status retrospectively, although the wording is in my view rather obscure.
The Government have argued that the clause gives prison officers new rights. The Home Secretary apparently contends that he is giving prison officers back the rights that were brought into question following a recent court hearing. Your Lordships may perhaps be aware of a recent court decision that prison officers are constables and therefore were not covered by the relevant employment legislation. But this trade union status does not extend to ever having had the right to take any form of industrial action; in other words, to breach Clause 119(1) of the Bill.
The net effect of the wording that we are seeking to delete with the amendment would be to render prison officers liable in respect of past industrial action and that opens up the prospect that they could find themselves facing action in court for something that was taken in good faith at the time and some years ago. It was assumed by everyone in those days, including the Government, that the action was not illegal. It would be ludicrous to insist that someone could be open to prosecution in respect of action taken perhaps 10 years ago when everyone thought it was quite legal.
If the Government are serious about statements made —for example, by Ministers in another place where I understand it was indicated that it was not the Government's intention to rake over old coals—why do we have this clause in the Bill? How is anyone meant to obey the law retrospectively? There seems to be no logical argument for the clause in the Bill and our amendment seeks to delete it. I trust therefore that the Minister will clarify the situation.
I pass on to Amendment No. 153F, which has been grouped with Amendment No. 153EA. The intention of this amendment is to protect the right of prison officers to protest—by dispute action if necessary—in instances where their health and safety could be at risk. The Government have taken away one part of the industrial relations machinery and, as I understand it, nothing has replaced it. Prison officers will have no bargaining power and no way in which they can force prison managers to recognise a serious problem in a prison. The only way a prison officer could register an effective protest would be to resign. I believe that no one would regard that as a satisfactory solution either for the officer himself or for the prison service generally.
In my view this section of the Bill is in breach of the International Covenant on Economic Social and Cultural Rights, which expressly provides for the right
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to take industrial action. It is also in breach of ILO conventions. The ILO Committee on Freedom of Association has held on a number of occasions that the right to take industrial action is implied and is a fundamental provision of the Convention on Freedom of Association and Protection of the Right to Organise.
The right to take industrial action is also implicit in Articles 20 and 23 of the United Nations Universal Declaration of Human Rights and Article 22 of the International Covenant on Civil and Political Rights. I understand that the Government regard themselves as bound by those conventions, to which they are signatories.
However, the Government contend that this Bill puts industrial relations in the prison service on a proper footing. But what the Government regard as a proper footing is a removal of the basic right of industrial action and its replacement with absolutely nothing that I can see in the Bill. Prison officers are therefore left with no means of effectively making management take note of the serious anxieties of officers who are themselves at the sharp end and have a responsibility for the safety not only of themselves and their colleagues but also of the prisoners in their charge.
Prison officers and staff have real anxieties and fears, particularly since the recent rise in the prison population caused, I believe, at least in part by the Government's penal policies. Taking away the right to voice those fears effectively will not reduce the problems, but simply mask them for the time being with possibly greater problems later on. There should be a mechanism for the protection of staff and to ensure that there is a means of making their voices heard.
The Home Office Minister said in Standing Committee in another place that it is no part of the Government's policy to deny members of the prison service the right to be represented by independent, effective and responsible unions, yet this clause in the Bill takes away that right, as the final sanction of industrial action is removed.
The amendment is designed to allow prison officers the right to withdraw labour or commit a breach of discipline where their health or safety is threatened. For example, it would allow a prison officer to withdraw his labour if a governor ordered him to manage an entire wing of a prison, unlocked, on his own. That is not hypothetical. My information is that that is precisely what some prison officers are now facing. The clause in the Bill is drafted in very strong terms and leaves no room even for the narrow liberty of industrial action normally available to most trade unions under existing labour law.
The removal of the right to take industrial action and of the right to negotiate on pay and conditions will lead to a breakdown of morale and discipline within the prison service, as the only safety valve for prison officers to highlight dangerous and degrading conditions would disappear. It would appear that the health and safety of prison officers and of the prisoners themselves is under threat. We have heard in the debate this evening about the prison population explosion. There has been a large increase in the number of

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prisoners and also in the number of violent prisoners. That has made prisons even more dangerous places to work in than they used to be.
During the past five years the prison system within the United Kingdom has experienced approximately 30,000 assaults by prisoners on staff and on other prisoners. Assaults on staff rose by 33 per cent. in the past year and they are expected to continue to rise at alarming levels. The past five years have also seen 13,000 drug finds. Again, evidence shows that the level of drug abuse is continuing to rise and, as everybody knows, over the past five years there have been riots and acts of vandalism in prisons which have resulted in the taxpayer having to foot a £1 billion bill for the damage done.
The Bill does not address the situation at prison landing level of how a prison officer, or a group of prison officers, will react in a volatile environment particularly when confronted by violent prisoners. Many disputes between governors and prison officers arise out of a sense of grievance about the way in which management decisions have impacted on the safety and security of prison officers at landing level.
I am sure that I am not the only Member of your Lordships' House who has felt it necessary to visit prisons in an attempt to find out exactly how the prison service runs. Whenever I have paid such visits, I have come away with a feeling of deep sadness. As a society, we are locking away our problems. Prison officers are doing work that is vitally necessary because violent and dangerous people cannot be permitted to threaten the lives and security of ordinary citizens. Prison officers therefore act for us, doing work which many of us would not want to do. We have an obligation to ensure that they have good conditions; that their views, since they are closer to the problems than anyone else, are taken into account; and, in particular, that they are not exposed to health and safety hazards that could be avoided. They must be afforded the right to protest and to employ the ultimate sanction if they feel that their welfare is being ignored. I beg to move.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry: The noble Baroness, Lady Turner of Camden, has spoken to two amendments which are rather different in nature, but which have been grouped together. In the group of clauses, Clauses 118 to 120, I should be surprised if the Opposition opposed Clause 118 because of the case last year which highlighted the fact that prison officers in England and Wales have the privileges and powers of constables, from which the conclusion was drawn that they were not "workers" within the terms of the trade union legislation. Clause 118 gives prison officers and their unions the rights that they would have expected to have if they had not had the status of constable. That is always subject to the provisions of Clause 119 which is, I think, the clause to which the noble Baroness objects. That clause makes it quite clear that it will be a contravention of the provisions if somebody induces a prison officer to withhold his services as an officer or to commit a breach of discipline. The purpose of that provision is to prevent the disruption of the prison service.
In that connection, the noble Baroness refers to a number of conventions. Under the European Convention on Human Rights, it is clear that the right to take industrial action can be restricted in the case of the police or of those who are involved,
"in the administration of the State",
which includes those of the status of prison officer. There is no question here of any breach of the European Convention on Human Rights; nor is there any question of a breach of the International Labour Convention which contains an exception in the case of essential workers, such as prison officers. Therefore, there is no question of us being in breach of our international obligations. The purpose of Clause 119 is to make it clear that prison officers are not entitled to take industrial action. Clause 120 contains powers, by regulation, in appropriate situations, to make provisions. in connection with the rates of pay and terms and conditions of employment of prison officers. Obviously, that is the other side of the question.
The first amendment to which the noble Baroness spoke would have the effect of seeking to validate retrospectively something which was unlawful at the time that it occurred, unlawful as the law existed then and unlawful as the law will exist if and when this Bill becomes an Act. It would give extraordinary and completely anomalous status to these actions, which is neither justified by the former law nor by the law as it will be.
I agree that the Government have indicated that they have no intention of raking over old sores and so forth. Nonetheless, it would be wrong in principle to enact something retrospectively which would correspond neither to the legal position as it was then nor to the legal position as it will be in the future. For that reason, we cannot accept the proposed amendment.
The other proposed amendment is a little difficult to parse or to fit into the particular provision to which it is attached. Nonetheless, it deals with matters of health and safety and, without going into its detail, I am happy to take it on that basis. As I have said, the provisions of Clause 119(1) are precisely drafted and are intended to prevent industrial action by prison officers. I understand that somehow or other the amendment would introduce an exception in connection with, in broad terms, matters of health and safety. Into that wide maw, and on various occasions in the past, representatives of the Prison Officers Association have tried to sweep various matters such as manning levels and so forth. In connection with genuine and proper health and safety issues, the responsibility lies on the governor of the prison establishment concerned. That obligation is clearly settled in Standing Order No. 14 of the prison service. Nothing which is contained in Clause 119 in any way impacts upon or affects adversely the responsibility of the prison governor.
As Members of the Committee will know, health and safety in prisons is covered by the Health and Safety Act 1974 and other legislation in so far as it applies to the Crown. For example, it imposes obligations on the Home Office as employer and accordingly requires the governor to produce a local health and safety statement, to appoint local health and safety representatives, to

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conduct health and safety audits, to set up health and safety committees and to grant full access to inspectors from the Health and Safety Executive. Your Lordships will find that in the context of Standing Order No. 14, to which I have referred.
Therefore, there is a whole area of provisions which deals with the matter of health and safety in prisons. For that reason, we reject any idea that it would be in any way sensible—far less necessary—to include an exception of the kind which the noble Baroness would seek to introduce in her amendment.
There is nothing to prevent any prison officer drawing the attention of those in a position of authority or responsibility to any health and safety issue. But that cannot be used as a pretext to disrupt the running of prisons. There is a different regime for health and safety and prison officers must not be allowed to bring those issues into the context of industrial relations in order to disrupt the running of the prisons. The Bill proceeds on the basis that it is important that prisons should be run without interruption. In that context, the amendment is not acceptable. I hope that the noble Baroness will withdraw it.
Baroness Turner of Camden: I am somewhat disappointed but not entirely surprised by the Minister's response. With regard to the first amendment, as I understand the situation, for many years it was taken for granted by the Government, by the Prison Officers' Association and indeed by everyone that prison officers had the same rights as any other trade unionists to take industrial action subject, of course, to the requirements of the legislation then in force. There was then a court decision which held that prison officers had always been constables and because of that automatically were not workers within the purview of employment legislation and therefore not entitled to the coverage provided by the appropriate employment legislation.
The Prison Officers' Association is now saying that it is all very well to say, as has been said in the other place, that the Government do not intend to rake over old coals. But the fact remains that people who took action some time ago are nevertheless vulnerable because it has now been said —indeed, the Minister said it this afternoon—that it was never lawful for them to take the action, although everybody at the time thought that it was lawful. I am sure that they would not have taken the action if they had thought it unlawful. Such people feel vulnerable and feel that action may be taken against them as a result of industrial action which they took some time ago.
I should have thought that it would be very much to the Government's advantage to assure prison officers in some way or other, if not through this amendment, that bygones are bygones and that there is no possibility that those cases will ever be reopened. After all, all those who took action in those circumstances thought that they were doing so quite lawfully.
At this time of the evening, I do not intend to press the issue to a Division. However, I earnestly ask the Government to think about the matter and to see whether there is not some way, either through this Bill
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or by putting something into Hansard, whereby assurance can be given that there will be no follow—up of cases in which people were involved some years ago.
As to the second amendment, again, as I understand it, the Prison Officers' Association—and I have a note from it here—seems to have accepted that with regard to the general right to industrial action its members are in a special and separate position. That is why the amendment it has asked me to put before the Committee this evening is concerned only with health and safety. Health and safety in prisons is a very dodgy and difficult issue, as I am sure your Lordships will understand following the submissions made on all sides of the Committee.
Prison officers are dealing with violent and unpredictable people. I recall when I was visiting prisons, going to Holloway where I was extremely anxious to see how women in prison were being dealt with. I was told by prison officers there that you could be very friendly with a prisoner on one day but the next day, and quite out of the blue—prisoners are entirely unpredictable—there could be an attack upon the prison officer with whom the prisoner had been very friendly the previous day. It is a very volatile, difficult and special situation.
In my view, it is not sufficient simply to say that the health and safety legislation which applies everywhere else will apply within the prison service; that that should be sufficient and that the governor has obligations under the health and safety legislation, and so on. As I said, it is a very volatile, difficult and special situation with which the staff are constantly faced. Sometimes it may be necessary to protest sharply and strongly, perhaps even involving a breach of discipline—in other words, a breach of the provisions in Clause 119. If that were to happen we want to ensure that the individuals concerned have some form of protection.
As I said earlier, it is not my intention this evening to press the amendments to a vote because we have a very thin presence in the Chamber. However, they involve very important and significant matters to which I believe we may have to return on Report when, perhaps, there will be more noble Lords present. At that time, we shall be able to mount our arguments in a different way and return with slightly different wording to the amendment. These are important and serious issues. Quite frankly, I do not think that the Government's response this evening adequately covers or deals with the concerns that have been voiced by prison staff, both to me and to others on this side of the Committee who have decided to take the briefing that such staff offered to us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 agreed to.
Clause 119 [Inducements to withhold services or to indiscipline]:
[Amendment No. 153F not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 154:
Page 93, line 12, leave out from beginning to ("which") in line 14 and insert:

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("(3) Without prejudice to the right of the Secretary of State, by virtue of the preceding provisions of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any breach of the duty mentioned in subsection (2) above").
The noble and learned Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendment No. 154ZA. The two amendments are essentially put forward to clarify the position. Amendment No. 154 ensures that there can be no doubt as to the Secretary of State's ability in whatever jurisdiction—be it England and Wales, Scotland or Northern Ireland—to apply for an injunction (or, in Scotland, an interdict) to prevent an apprehended breach of the duty created by Clause 119 not to induce prison officers to take industrial action. It was thought that the clause as originally drafted achieved that aim, but some doubt has arisen as to whether it might be interpreted as requiring the Secretary of State to demonstrate that he would suffer loss or damage from the planned industrial action before he could obtain an injunction or interdict to restrain it. The purpose of the amendment is to remove any doubt and to show that the Secretary of State is entitled to that, even though he cannot demonstrate any potential loss or damage.
Amendment No. 154ZA relates to a very technical matter. Clause 120 is designed to deal with the remuneration of prison officers who are prison officers in the strict sense of the word. It is not intended to cover the remuneration of prison custody officers who would be employed by private operators. The amendment would ensure that prison custody officers and custody officers employed by the private sector —whether, in one case, in prisons and, in the other, in secure training centres—are excluded from the pay determination procedures which are provided, or may be provided, in regulations made by the Secretary of State under Clause 120.
For reasons—the details of which I shall spare Members of the Committee—regarding the precise drafting of certain sections of the Prison Act 1952 and the Criminal Justice Act 1991, there was thought to be a possible doubt about the matter. That doubt has been cured by the amendment. I beg to move.
Clause 120 [Pay and related conditions]:
9.45 p.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 154ZA:
Page 94, line 24, leave out from ("comprises") to end of line 32 and insert ("all the individuals who are prison officers within the meaning of section 119 above, apart from those who are custody officers within the meaning of Part I of this Act or prisoner custody officers within the meaning of Part IV of the Criminal Justice Act 1991 or Chapter II or III of this Part.").
Clause 120, as amended, agreed to.
Clauses 121 to 127 agreed to.
Clause 128 [Execution of warrants]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZB:
Page 100, line 28, at beginning insert ("Subject to subsection (4A) of this section,").
The noble and learned Lord said: After that spectacular progress in the Bill which must be unprecedented I have some reluctance in intervening with an amendment on behalf of the Government. In moving Amendment No. 154ZB I wish to speak also to Amendment No. 154ZC. The purpose of these amendments is to ensure the smooth operation of the provisions in this clause. As things stand, a person arrested in pursuance of a warrant under the terms of the present provisions could be taken only to a police station within the jurisdiction of the judicial authority who issued that warrant. However, there will be circumstances where, under normal circumstances, a warrant will direct that a person should be taken elsewhere, and the best example that I can give is directly to a prison. Clearly the clause should also expressly cater for such a case and by virtue of these amendments it will do so. I beg to move.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZC:
Page 100, line 30, at end insert:

("(4A) In the application of subsection (4) of this section to a person arrested in pursuance of—

(a) a warrant of commitment issued by a judicial authority in England, Wales or Northern Ireland; or

(b) a warrant for committal, or of detention and return of sentence, issued by a judicial authority in Scotland,
the reference to a police station within the jurisdiction of that authority shall be construed as including a reference to any other place to which he is committed by, or is to be conveyed under, the warrant.").

Clause 128, as amended, agreed to.
Clause 129 [Cross-border powers of arrest etc.]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZD:
Page 101, line 46, leave out ("the") and insert ("a").
The noble and learned Lord said: In moving Amendment No. 154ZD I wish to speak also to Amendments Nos. 154ZF, ZH and ZJ. These are technical amendments simply clarifying our intention that if an offence is being investigated in more than one police area, or a sheriffdom in Scotland, the person arrested or detained in connection with the offence can be taken to a police station in any of the police areas or the sheriffdoms where the offence is being investigated. I beg to move.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 154ZE:
Page 102, line 2, leave out ("to the nearest convenient Police Station in Scotland or").
The noble Lord said: I believe this amendment has been briefly touched upon by the noble and learned Lord, Lord Fraser of Carmyllie, as regards what is to happen to people who are being taken into custody in cross-Border activity.
The purpose of the amendment is to take out the phrase:

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"to the nearest convenient police station in Scotland or"
in order to ensure that the person who has been arrested by a warrant, no doubt issued by a sheriff or magistrate in the area where the offence is to be tried, is taken to that locality.
There are real difficulties here. The Bill as it stands indicates that the person will be taken:
"to the nearest convenient police station in Scotland or to a police station within the sheriffdom in which the offence is being investigated".
That creates difficulties in the sparsely populated areas of Scotland. Does:
"the nearest convenient police station in Scotland"
mean that if someone has committed an offence in Inverness and is taken over the Border he can be dumped in Dumfries? I note that the noble and learned Lord is nodding his head. I hope that he is not agreeing with that, because what happens to the prisoner who is arrested in England or Wales under this cross-Border transference, to which no objection is made? Does it really mean that the person is to be taken over the Border and dumped in the nearest police station? So far as I can see there is nothing in the clause which makes provision for the receiving office to receive the prisoner.
Let us exaggerate the position and take the case of someone who is suspected of committing a murder in Inverness. He can be dumped at the police office in Dumfries. There is nothing in the Bill to require the police office in Dumfries to accept that person who has been arrested for a murder in Inverness. What happens if the officer who has arrested the prisoner in, say, Bermondsey, and having been with him for three or four days escorting him from Bermondsey to Inverness on reaching Dumfries, becomes a little fed up and says, "Under the Act I can just dump this chap here. I am off home, to play golf"—or whatever people do in the time off that they have earned as a result of having done escort duty?
I believe that the provision is rather slack in terms of the practicalities. It should be tightened up to make sure that where a warrant has been issued for the arrest of a person in England and Wales for an offence committed within a sheriffdom in Scotland there are clear and defined lines to make sure that the person is taken back to the place where he is likely to be tried. He should not be left in the custody of police officers in a station in Scotland who probably do not want to have the prisoner in the first place and under the Bill have no obligation to receive him. It is one thing to take and another to receive.
I should like to know from the Minister what obligation there is on the officers in whatever is meant by a "convenient police station" to receive the person. Can the arresting officer in England or Wales really hand over the prisoner with the warrant and say "All right, mate. I have arrested him in Bermondsey. He is wanted in Inverness. You are in Dumfries. This is the nearest convenient police station in Scotland. You can have him. Goodbye", and leave him there?
I can see that considerable difficulties will be created, unless I am completely misreading the clause. Of course, with his usual courtesy the Minister will tell me
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if that is the case. It may not be the first time. I hope that I am not misreading the situation. With those observations, I beg to move.
Lord Fraser of Carmyllie: It is my understanding that it is the Committee's wish that the amendment should be grouped with Amendment No. 154A and Amendment No. 154B.
The noble Lord moved the amendment with a proper regard to the best interests of someone who has been arrested or is a suspect. I hope to persuade him that what he seeks to introduce into the Bill, far from being helpful to that individual, may be detrimental to a person arrested in England and Wales who is taken over the Border into Scotland.
As matters stand, the arrested person may be taken to the nearest convenient police station in Scotland or to one within a sheriffdom, in which the offence is being investigated. By denying access to the nearest convenient police station, as the noble Lord's amendment seeks to do, the rights of an arrested person are not necessarily best served. We seek to get the person taken to the appropriate jurisdiction and to set the wheels of justice in motion without delay while observing the rights of the suspect. What is proposed would seem to have no benefits for the suspect. We share a view with the noble Lord that we should be safeguarding the rights of the suspect. Therefore we have proposed alternatives.
What we have proposed is not entirely novel, because at present a person arrested in one area of Scotland for a crime committed elsewhere in Scotland may be taken to the nearest police station. I see no good reason for changing that. The noble Lord will well appreciate that with regard to detention under the terms of Section 2 of the 1980 Act, rather than going all the way to, say, Grampian, it might be in the best interest of a suspect that the six hours should run from the time that he is taken to the nearest convenient police station over the Border rather than being taken many hours later to a police station in Aberdeen or elsewhere.
Similarly, the noble Lord's second amendment would defeat the existing requirements of the clause by creating the false impression that the arresting or detaining officers had up to 72 hours to take the suspect back to the appropriate jurisdiction.
As it stands, the clause clearly stipulates that the suspect must be returned to the appropriate jurisdiction as soon as reasonably practicable. We have no intention of allowing a suspect who has been arrested or detained in one part of the United Kingdom on suspicion of having committed an offence within another part of the United Kingdom to remain outwith the jurisdiction where he may eventually face trial for any longer than is reasonably necessary and certainly not in any circumstances of which I can at present conceive for up to 72 hours.
While I understand the noble Lord's intention that the period should not be unreasonably protracted, I suggest that the present test and requirement within the clause is a far greater safeguard than the provision that he proposes.

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I turn to his third amendment. It is right that the police should be able to account for how a person was dealt with, and I am pleased to be able to give my assurances that the existing legislation and police practices already amply cover that requirement.
In relation to detention by Scottish constables, the provisions attract the requirement of Section 2(4) of the Criminal Justice (Scotland) Act 1980 to record the place and time of detention. Clause 121 enables the movement of a person under detention but also requires that fact to be recorded. That requirement will also apply when detention is across the Border.
It is a matter of practice for Scottish police officers to record in their notebook the fact and time of arrest. That practice will of course be equally applied when the person has been arrested outwith Scotland. Similarly, the location of arrest and associated information may be important features of a case, in particular in these circumstances. At present such information is likely to be covered in the report to the procurator fiscal, as the noble Lord will doubtless appreciate.
An officer from England or Wales who crosses the Border to make an arrest will keep the same records as he would when making an arrest in England or Wales. The arresting officer is already required, normally by force standing orders, to record in his notebook the circumstances of the arrest as soon as practicable after the arrest. The officer is required to take the arrested person to an appropriate police station as soon as practicable after the arrest. So his prime concern, after informing the person that he has been arrested and the reasons for that arrest, is to take the person to the police station. For practical reasons the record of arrest may be recorded in the officer's notebook after he has taken the person to the police station. I understand that similar arrangements are applied in Northern Ireland.
These amendments imply that some appreciable time will pass before the detained or arrested person is returned across the Border. With respect to the noble Lord, that is a mistaken assumption because where an arrest is involved the intention is to arrest and return the person as soon as practicable to the appropriate jurisdiction.
As regards detention, I have explained the provisions that enable this to be carried out sensibly with the minimum inconvenience to the person detained. With that explanation, I hope that the noble Lord will appreciate that while his amendments are well intentioned, they are unnecessary.
10 p.m.
Lord Macaulay of Bragar: I always hope that I act with the best intentions for the administration of justice within Scotland. I am obliged to the noble and learned Lord, Lord Fraser, for the explanation he has given. The amendments do not seek to restrict the investigation of crime or of bringing criminals to justice. They are meant to focus on the rights of the individual who has been arrested and to bear in mind the presumption of innocence which applies.
What worries a few people is that the phrase,
"as soon as reasonably practicable".
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when a person is in the custody of the police, particularly on a serious charge, is a matter for consideration by the police. To exaggerate the issue, if a policeman arrests someone in Bermondsey, he could take him back to Dumfries via Liverpool or Manchester and just keep motoring the chap around the place. A policeman with perhaps evil intent, waiting for a confession, might just motor the chap around the country. When it comes to a trial he may say: "Well, that was the only reasonably practicable way of bringing this fellow from Bermondsey to Inverness. In the course of the journey from Bermondsey to Inverness, he said X, Y, Z.".
The difficulty perceived is the operation of the Criminal Justice (Scotland) Act 1980 with its detention provisions on cross-Border transference, of which we are all in favour. Perhaps we and the Government can get together to see whether we can work out a practical framework which safeguards the individual. After all, the person in the custody of the police, after being arrested, has very few rights. He cannot tell the policeman halfway up the M.6: "Would you mind stopping at the Little Chef? I'd like a cup of tea". That is perhaps a silly analogy, but that person is completely in the control of the police from that point on. The prisoner has no control over what is judged to be reasonably practicable.
The amendments are put down to focus the issue so that we may consider the detailed replies which the noble and learned Lord has given to the Committee. The keeping of a record is important as is the conduct of a case particularly given the existing climate. Perhaps in Scotland we have a certain smugness about wrongful conviction. We look at what has happened south of the Border and say, "That could never happen in Scotland". I am perhaps one of the few people in Scotland who says that some of those things could have happened in Scotland. Any Bill dealing with the rights of the citizen is concerned with those rights, the maintenance of the presumption of innocence and ensuring that the rights of the citizen are not undermined merely because he is in the custody of the police and a court has issued a warrant for his arrest.
If I understand the flavour of what the Minister said, he has accepted the amendments in the spirit in which they were put down, and I hope that we can get together with interested parties. Then perhaps we may have a discussion about the issues which the amendments raise and come up with a provision which is more tightly constructed than the present clause.
I apologise to the Minister and to the Committee for not having dealt with the other amendments. I arrived in very great haste from the North just before the House resumed, and I had not caught up with the grouping of the amendments. I hope that I have now dealt with the matters that are before the Committee.
Lord Fraser of Carmyllie: Before the noble Lord sits down, perhaps I may say to him that I appreciate that the issue of what is reasonably practicable is always open to a degree of interpretation. But I am sure that the noble Lord will contemplate this point: whenever someone is arrested or detained as a suspect within

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England and Wales, it would clearly be reasonably practicable to get that individual across the Scottish Border, even on a day like tomorrow when there might be a rail strike, in less than 72 hours. While I understand the noble Lord's clear best intention to put a limit on this, I hope that he will appreciate that the test that is set in the clause is indeed a tighter one than the absolute limit that he has suggested.
Lord Macaulay of Bragar: I take the point that the noble and learned Lord makes. I can see that the period of 72 hours might be too tightly drawn. I can see the reasonable practicability of not having such a tight timescale. The 72 hours was chosen as a timescale within which to consider the operation of proposed cross-Border activity, taking into account the provisions of the Criminal Justice Act 1980. Having heard what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZF:
Page 102, line 3, leave out first ("the") and insert ("a").
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZG:
Page 102, line 11, leave out ("and Wales or in Northern Ireland") and insert ("or Wales").
The noble and learned Lord said: This is a technical amendment which removes an unnecessary and confusing reference to Northern Ireland. I beg to move.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZH:
Page 102, line 16, leave out first ("the") and insert ("a").
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154ZJ:
Page 102, line 18, leave out ("the") and insert ("a").
The noble and learned Lord said: This amendment has already been spoken to. I beg to move.
[Amendments Nos. 154A and 154B not moved.]
Clause 129, as amended, agreed to.
Clause 130 agreed to.
Clause 131 [Search powers available on arrests under sections 128 and 129]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154BA:
Page 104, line 12, leave out ("(2) or (3) or 129(1)") and insert ("(2) (b) or (3) (a) or 129(1) or (3)").
Clause 133 [Aid of one police force by another]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154BB:
Page 107, line 6, at end insert:
("(2A) The chief constable of the Royal Ulster Constabulary in Northern Ireland may, on the application of the chief officer of police of a police force in England and Wales or the chief officer of a police force in Scotland, provide constables or other assistance for the purpose of enabling the English or Welsh force or the Scottish force to meet any special demand on its resources.").
The noble and learned Lord said: In speaking to Amendment No. 154BB, perhaps I might also speak to Amendments Nos. 154BC to 154BF, 172A and 175FA.
This group of amendments is, again, technical and introduces no new policy. The amendments consolidate existing legislation on the aid of one police force to another by including provisions affecting Northern Ireland in Clause 133. This is a sensible amalgamation which makes the aid provisions consistent across the whole of the United Kingdom. I beg to move.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 154BC to 154BF:
Page 107, line 11, leave out ("or (2)") and insert (", (2) or (2A)").
Page 107, line 13, leave out ("or, as the case may be").
Page 107, line 14, after ("Scotland") insert ("or the chief constable of the Royal Ulster Constabulary, as the case may be,").
Page 107, line 36, at end insert:
("( ) In this section "constable of a police force", in relation to Northern Ireland, means a member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve.").
The noble and learned Lord said: I beg to move these amendments en bloc.
Clause 133, as amended, agreed to.
Lord Annaly: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten minutes past ten o'clock.