Lords Sitting of 16 June 1994

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ripon.
The Marquess of Ailsa The Marquess of Ailsa —Sat first in Parliament after the death of his father.

Farriers: Training
Lord Mottistone Lord Mottistone asked Her Majesty's Government:
Whether there is a danger that the education and training of farriers is becoming principally college-based and not retaining sufficient of the strong practical input of the present apprenticeship scheme with approved training farriers.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): My Lords, it is for the employers in the farriery industry to decide which type of training suits them best. Presently there is the traditional apprenticeship system with employers or introductory college training prior to getting a job in the industry.
Lord Mottistone: My Lords, does my noble friend not agree that it is very important that the apprenticeship scheme has priority over any college-based equivalent? Does he further agree that it is important that the horses are looked after by farriers who are sympathetic to them and who understand how to deal with them? At the same time, they have to be good craftsmen and know how to make proper shoes for the horses. Therefore, is it not of paramount importance that the apprenticeship scheme should continue roughly as now and that it should not become over-college-based, as I fear may happen?
Lord Henley: My Lords, my noble friend is right to draw attention to the fact that it is the welfare of the horses that is the most important point to consider. However, I believe that there is validity in both systems. I can tell my noble friend that the Farriers Registration Council is under review at the moment. It is clear that whatever the outcome of the review, the quality of the training will be the most important matter. The issue of the long-term recruitment and training policy, under any new terms, will be a matter for the industry to decide. I understand that the farriery industry has expressed interest in being involved in the new modern apprenticeships announced by my right honourable friend last year.
Baroness Turner of Camden: My Lords, can the Minister say whether the National Vocational Qualification is available for this craft and, if so, whether steps are being taken to ensure that it can be obtained?
Lord Henley: My Lords, the noble Baroness is right to draw attention to the NVQ. I understand that a contract to develop it in farriery has now been signed.
Lord Boardman: My Lords, can the Minister confirm that the welfare of horses is best protected by farriers who have been apprenticed to appointed or qualified trainer farriers rather than having a training that is purely college-based? Does he agree, for example, that, although horses understand and respond to language, it might not be possible to take college examinations in that language?
Lord Henley: My Lords, as I made clear, I believe that there is validity in both systems. It is a matter for the Farriers Registration Council, which keeps a register of qualified farriers, to maintain the appropriate standards of practice. I can give my noble friend an assurance that it is illegal for an unregistered farrier to shoe horses in England or Wales.
Lord Gisborough: My Lords, in view of the greater use of horses by many foreign countries as compared to this country, to what extent is our training available to farriers from those countries? Would not such training help to secure improved animal welfare abroad?
Lord Henley: My Lords, my noble friend may be aware of a funding appeal by the Princess Royal some years ago. That was to some extent superseded by the training and enterprise councils after about £0.5 million had been raised. I understand that the balance is being re-targeted to establish an international institute of farriery for foreigners coming to the United Kingdom. It is also important to make the point that the farriery industry is very interested in having its qualifications and competence recognised in Europe. I understand that the second diploma directive covering this matter, which was agreed, I believe, in 1993, will come into force in a couple of days' time.
Lord Ironside: My Lords, is my noble friend aware that excellent farriery training facilities are available at the Ministry of Defence's animal centre at Melton Mowbray? Are those services offered to all comers—in other words, are they on offer outside the armed services?
Lord Henley: My Lords, my noble friend is right to draw attention to the excellent facilities available at Melton Mowbray. As regards his substantive point, I am afraid that I cannot help him. I can, however, assure him that the officer in charge of that establishment is represented on the Farriers Registration Council.
Lord Mottistone: My Lords, perhaps I may press my noble friend. Is he aware that the Farriers Registration Council is not wholly respected by all farriers because they suspect it of veering away from the apprenticeship schemes towards over-college-based training? Can he bear that in mind when seeking the advice of the council and ensure that any scheme has the backing of all farriers, particularly those offering training?
Lord Henley: My Lords, the important point is that the Farriers Registration Council keeps a register of qualified farriers. No one can act as a farrier who is not registered by the council. As I made clear, the council is under review at the moment and obviously the outcome

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of that review has yet to be finalised. What is important is that in the end the long-term recruitment and training policy, under any new terms, will be for the industry itself to decide.

Disabled Persons' Civil Rights: Legislation
3.13 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether they continue to take an attitude of "benevolent neutrality" towards the Civil Rights (Disabled Persons) Bill.
The Parliamentary Under-Secretary of State, Department of Social Security (Viscount Astor): My Lords, the Government are committed to the elimination of discrimination against disabled people. However, we do not see comprehensive legislation as the most effective and practical means of achieving that aim. The Government have made clear their concerns about the potential costs and burdens of this Bill. We intend to consult on a range of measures to combat unjustifiable discrimination. The five areas for consultation are employment, access to goof's and services, financial services, the impact of building regulations on disabled people and the creation of an advisory body on disability.
Lord Ashley of Stoke: My Lords, is the Minister aware that it is Helpful for the House to know the Government's attitude to the Bill before we debate it next Wednesday? The Government's objections have now been met by changes to the Bill. Is the Minister also aware that the Government's £17 billion cost assessment is wildly inaccurate because the costs of several departments were duplicated? No account was taken of the economic benefits that would be derived from countless numbers of disabled people returning to work and, above all, the Government assumed that the entire Bill would be implemented within five years. However, under the Bill as it now stands, implementation is completely open-ended; it is entirely at the discretion of the Government. Undue hardship on business or on any other organisation is specifically banned by the Bill—specifically banned—and any provisions for disabled people must be reasonable. Does the Minister agree that in view of those factors it would be entirely wrong for the Government to oppose the Bill?
Viscount Astor: My Lords, while the Government support the aims of the Bill, we do not support it as drafted. The drafting is defective in a number of areas and insufficient account has been taken of the potential huge costs of implementation. We still believe that to be the case. No doubt, when the noble Lord, Lord Ashley, introduces his Bill in this House next week, we shall be able to discuss the cost and how the figure of £17 billion cornea about.
Lord Renton: My Lords, is my noble friend aware that for nearly 20 years many Members of all parties have wanted a Bill on these lines and that the Bill presented by the noble Lord, Lord Ashley of Stoke, is a great improvement on its predecessors? As the Government are still worried about the alleged cost, is my noble friend further aware that two simple amendments will deal quite simply with that problem, if they have an open mind on the matter?
Viscount Astor: My Lords, of course we have an open mind. I am well aware of the level of support for anti-discrimination legislation and the Government have listened carefully to the arguments of those supporting it. While acknowledging the conviction of those views, we have not yet been persuaded that comprehensive anti-discrimination legislation represents the most practical way of promoting opportunities for disabled people.
Lord Ennals: My Lords, is the Minister aware that this is the first opportunity that many of us have had to express our absolute disgust at the way in which a similar Bill was dealt with in the House of Commons? Secondly, does the Minister accept that the new Bill, which is being presented on Wednesday by my noble friend, will give the Government, if they have an open mind, an opportunity of getting this issue back on track in a way that we know your Lordships wish? We have twice passed similar Bills which conformed with the wishes of the organisations for disabled people.
Viscount Astor: My Lords, the Bill was debated in another place on 20th May and fell to return at a later date this Session. If and when it returns, I am sure that my right honourable friend the Minister for Social Security and Disabled People will take the opportunity once again to set out the Government's proposals for combating discrimination. We have announced the Government's proposals and we intend within six months to consult on them. The consultations will take account of the views of everyone with an interest in disability. After consultation, we will be prepared to consider assisting in drafting workable and practical legislation, which will be identified by the process of consultation.
Lord Campbell of Croy: My Lords, my noble friend Lord Renton mentioned 20 years. Is my noble friend Lord Astor aware that I introduced the first of these Bills in another place 26 years ago? It was defeated on Second Reading by the Government, with Government Whips as Tellers. Therefore, governments of all kinds have had difficulties with such Bills, even though mine would have cost almost no money at all. However, would it not be best for this matter to be discussed next Wednesday?
Viscount Astor: My Lords, I agree with my noble friend. This is a complicated area. We believe, for example, that the Bill was not specific enough to give a clear indication of timing or impact and it made it impossible to identify some of the costs over the unspecified period. Therefore, that could not be taken into account. The compliance cost assessment was

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prepared on the best information available. We looked carefully at that Bill and the Government decided that it was not practical nor the right way to go forward in helping disabled people in that way.
Baroness Hollis of Heigham: My Lords, I believe that the noble, Lord Renton, spoke for the entire House when he said that this House has a proud record of supporting the rights of disabled people.
In response to an earlier question, the Minister said that he supported the aims but not the drafting of that Bill. In that case, will he not take the Bill sufficiently seriously to amend it in this House, if that is what is necessary for its success, rather than see the Bill return to the Commons and risk a repeat of the fiasco which so shamed the parliamentary process?
Viscount Astor: My Lords, I do not agree with the noble Baroness that it shamed the parliamentary process. The Bill was dealt with in another place, and a Bill must stand or fall on its merits. I can tell the noble Baroness what was the Government's view. We judged that it was not possible to turn the Bill into a viable statute and that is why we did not support it. I have announced the Government's proposals for future consultation. Consideration will be given to specific legislation which it may be possible to introduce in the future.
Lord Monson: My Lords, does the noble Viscount agree that if the alleged implementation costs of £17 billion are correct the Government have absolutely no business sitting on the fence and saying that returning to the matter is no concern of theirs? Would it be possible to make available a detailed breakdown of the £17 billion before next Wednesday's debate?
Viscount Astor: My Lords, as I said earlier, our views on the Bill were made very clear in another place. I believe that the figures for which the noble Lord asked are best dealt with when we debate the Second Reading of the Bill next week in this House.
Lord Richard: My Lords, the Minister twice said that the Government approach this subject with an open mind. By that, does he mean that the Government are sympathetic towards the principles and objectives of the Bill and that appropriate drafting will enable the Government to accept something along those lines or does open-mindedness on the part of the Government mean something rather more restrictive?
Viscount Astor: My Lords, I had hoped that I had made the Government's position entirely clear but I am happy to repeat it in order to do so. The Government support the aims of the Bill. They do not support the Bill as drafted. The drafting is defective in a number of areas and insufficient account has been taken of the potentially huge costs of implementation. When the Bill went through another place the Government judged that it was not possible to turn the Bill into a viable statute.
Lord Tordoff: My Lords, in reply to the noble Lord, Lord Monson, the noble Viscount said to the House that those figures would become available next Wednesday. If the Government have the figures, surely it must be
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possible for them to be presented before next Wednesday to the people who are interested in the Bill. They should not be produced like a rabbit out of a hat at the last minute.
Viscount Astor: My Lords, the difficulty can be seen by looking at the Bill itself. It does not give phased-in times for commencement but provides that the Secretary of State has power to specify in regulations the exemptions for various periods. Amendments which could be readily quantified were taken into account when preparing the compliance cost assessment; for example, on phased-in times. That assessment was prepared on the best information available based on the assumption that compliance with the Bill's requirements would be immediate or deferred for a five-year period. The compliance cost assessment showed that it would cost more than £17 billion and that there would be a year-on cost of £1 billion.
Lord Ashley of Stoke: My Lords, the Minister is entitled to correct any defects in the drafting, but the Bill has been checked by eminent lawyers like the noble Lord, Lord Renton, the Law Society and all who support it. The Minister complained about the timing. The sponsors of the Bill have leaned so far back that they have left that to the Secretary of State. If he wants to wait for 10 years, he can do so; if he wants to wait 20 years, he can do so. Some people believe that we have leaned back too far to oblige the Government. That is why the Government are quite wrong not to make a specific commitment to accept the principle of the Bill. Its implementation can then be fitted in to suit the Government.
Viscount Astor: My Lords, the Government have always made it clear that they do not believe that comprehensive legislation like the Bill proposed by the noble Lord, Lord Ashley, is the best way forward. We believe that we should consult on specific legislation which can take into account the very real needs of people with disabilities.

Small Businesses: Late Payment
3.25 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
Whether they are concerned about the reported increase in late payments to small firms.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, we are concerned about late payment. That is why we consulted the business community and why we have announced in the White Paper on competitiveness a package of new and practical measures to address that important problem.
Lord Ezra: My Lords, I am glad to know that the Government attach so much importance to this matter. Is the noble Lord aware of the full extent of the problem; that of the £40 billion owed at any one time to small firms, no less than £20 billion is paid late? That £20 billion is roughly equivalent to their bank overdrafts,

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which are extremely costly. Is he aware further that, in a wide-ranging inquiry in 1991, 80 per cent. of small businesses said that they thought that they would be paid more promptly if there was a statutory obligation to pay interest? In that regard, the Government have said that they are going to wait another two years. Should they not make up their minds now?
Lord Strathclyde: My Lords, of course the Government have made up their minds and we shall not legislate at this stage until we have introduced the very important practical measures which we announced in the competitiveness White Paper. The figures used by the noble Lord were the latest in a long line of very different figures used by a variety of people to support their particular case. That is one of the problems. However, when we consulted the CBI Small Firms Council and the Federation of Small Businesses, both agreed that legislation was not the way forward.
Lord Hailsham of Saint Marylebone: My Lords, am I not right in thinking that it is probably about 10 years or more since a committee set up by the government of the day reported in favour of interest to be paid for non-payment of simple debts, and that that interest should be enforceable by the courts? I wonder why it is that no governments have supported that recommendation in the interval, because it seems a very simple provision.
Lord Strathclyde: My Lords, the problem is that at the moment the courts can already enforce contracts which require prompt payment and interest. To add a statutory right to interest simply gives powers which already exist. That is why this Government have not acted. We much prefer to look at speeding up court procedures and making the Government lead by example. We are looking at a variety of educational and informational means to make sure that people have their bills paid on time.
Lord Dean of Beswick: My Lords, is the Minister not aware that traditionally the building industry has been the biggest culprit as regards this practice? In order to assist their own cash flow problems, the very large companies have delayed payments to smaller companies doing sub-contracting work. Very often that has resulted in small companies being driven into bankruptcy. Is the Minister further aware that I am distressed to see that there has been an increase in late payments to small firms? I had understood that the situation had improved, but if that is not the case, is it not time for urgent action?
Lord Strathclyde: My Lords, the noble Lord is absolutely right when he says there is a quite specific problem in relation to the building industry. The construction industry has an endless stream of contractors and sub-contractors. That means that people have consistently been paid badly. That is why the Department of the Environment is presently consulting the construction industry; and that is why the CBI has supported specific schemes to try to solve the problem. Those schemes are showing some success.
Baroness Sharpies: My Lords, is my noble friend the Minister aware that in 1980 I asked the selfsame Question as the noble Lord, Lord Ezra, and the answer today has been just about equivalent? Is he also aware that in 1991 I asked the same Question and the Minister responding from the Front Bench said that government departments were instructed to deal with their bills within 30 days of receiving invoices?
Lord Strathclyde: My Lords, for a long time I have believed that the primary causes of late payment are either the recession or high interest rates. However, we are now firmly into recovery and we have low interest rates. That is why, uniquely in Europe, it is British payment times which are falling, whereas on the recession-hit European Continent they are still increasing.
Baroness Seear: My Lords, can the Minister remind us of the policy of Her Majesty' s Government regarding payments owed by government departments in relation to both their commercial transactions and moneys that they have committed themselves to pay to various voluntary organisations? If such a policy is not adequately carried out, what is the procedure to enable such organisations to gain redress?
Lord Strathclyde: My Lords, as part of our announcement in the White Paper, we declared that government departments would stick to the code of practice issued by the CBI, which obliges departments to pay in accordance with contract terms. I do not know whether that also includes payment to voluntary organisations, but I shall make it my business to find out.
Lord Stoddart of Swindon: My Lords, is the Minister aware that I cannot understand why the Government will not take a statutory route towards tackling such a difficult problem? After all, the Inland Revenue does it in reverse; indeed, it charges small as well as large taxpayers who do not pay on time interest. Why on earth should the same procedure not operate with industry?
Lord Strathclyde: My Lords, as I have already explained, at the beginning of the year we carried out a wide-ranging consultation process. There was no overwhelming consensus for legislation. Many people believe that a statutory right could be positively harmful.
Lord Peston: My Lords, I am slightly surprised by the Minister's reply. Is he aware that many small business men have been in contact with me? They say that they would very much like a mandatory right to interest on late payments, subject to one point: the law should be drafted so that they do not end up with even more expensive litigation, which is their real worry; in other words, there should not be yet another subsidy for lawyers. Is not the main problem that late payment means that small business men are spending their time on matters which are not germane to the central activities for which they went into business and that they spend their time on anxiety-creating attempts to stop their businesses going bankrupt because of poor

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cashflow when in fact they are not in the financial game? In the circumstances, should not the Government be acting rather more powerfully and rapidly?
Lord Strathclyde: My Lords, many people believe that the simple fact of having a law against late payment will somehow, by magic, solve the problem. Of course, it will not. Many smaller firms suffer because they have poor credit control. They do not send out invoices and they do not have contracts. Those are the matters that we need to tackle.

Insolvency Rules: Judgment Implications
3.32 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether, in the light of the judgment of Mr Justice Ferris in the High Court on 12th May 1994 in the case In re Cranley Mansions Ltd., they will give urgent attention to an immediate amendment to Rule 5.17(3) of the Insolvency Rules 1986.
Lord Strathclyde: My Lords, the implications of the judgment are being carefully considered and the relevant rules will be amended if appropriate to do so.
Lord Bruce of Donington: My Lords, I am most grateful to the Minister for his Answer. However, is he aware that the provisions of Rule 5.17(3) of the Insolvency Rules 1986, together with a similar rule, Rule 1.17(3), which deals with companies, play an integral part in procedural terms of activating those provisions of the Insolvency Act 1985 which provide for voluntary agreèments between companies and their creditors for the purposes of reconstruction? Is the Minister also aware that those arrangements have proved very beneficial to many companies, individual firms and partnerships in the United Kingdom in effecting successful reconstructions where, otherwise, such businesses might have gone into liquidation or bankruptcy?
Is the Minister further aware that the judgment in the case in question goes completely contrary to what has become accepted practice over the past eight years, where the insolvency practitioner, as the chairman of the creditors' meeting, has been given very wide powers to determine the value of unascertained liabilities and unsatisfied but unqualified claims presented at any time prior to midday on the day previous to the creditors' meeting? The taking away of that particular discretion is a grave matter; indeed, it threatens the whole base of the application of the voluntary arrangements envisaged in the Insolvency Act 1985.
Lord Strathclyde: My Lords, I can confirm to the noble Lord that I am well aware that that has been the practice of insolvency practitioners over the course of the past few years and, indeed, that it is an integral part of their operation. Further, I should add that CVAs— that is, company voluntary arrangements—are schemes that we are anxious to do what we can to encourage. However, we need to find a fair and workable solution as a result of the judgment.
Lord Peston: My Lords, I believe that the House will be most indebted to my noble friend Lord Bruce of Donington for placing the matter before us. When his officials advise him on the whole interpretation of the decision, will the Minister bear in mind the fact that were he to bring forward an immediate or, in this case, a quick amendment to Rule 5.17(3) of the Insolvency Rules, he would have the full support of the Opposition? Assuming that the whole process works by having to be voted on—which I am not even sure is the case—I do not believe that there will be any problem in getting the matter through. We would support very quick action if the Minister were minded to act.
Lord Strathclyde: My Lords, I am delighted to have the Opposition's support on the matter. As the noble Lord recognises, it is of some importance. That is why we are considering the matter urgently. However, we need to discuss it with the profession. If a rule change is necessary, we shall have to consult with the Statutory Rules Committee, because the impact of the judgment on meetings and all types of insolvencies will need to be considered. As soon as we have a reply, we shall come very quickly to a decision.
Lord Bruce of Donington: My Lords, I am most grateful to the Minister. However, is he aware that, with the limited experience that I have in the field, I am available to offer my services in determining a correct substitute for the present rule?
Lord Strathclyde: My Lords, I believe that the noble Lord is being overly modest as both his experience and knowledge in the field are very highly regarded in all parts of the House and, indeed, outside.

Parliamentary Commissioner Bill
Read a third time, and passed.

Criminal Justice and Public Order Bill
3.37 p.m.
The Minister of State, Home Office (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.]
Lord Brightman Lord Brightman moved Amendment No. 154C:
Before Clause 134, insert the following new clause:
("Offence of selling confidential financial information
—(1) It is an offence to offer to sell information as to the financial affairs of a person which is not in the public domain.
(2) A person guilty of an offence under this section is liable—

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

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

The noble and learned Lord said: The above amendment is the sequel to a Starred Question tabled by the noble Baroness, Lady Nicol, earlier this year. For

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those not familiar with the problem, perhaps I may sketch in the background. There is an organisation with branches throughout the country which offers to sell confidential, financial information at a price. I have with me the price list for 1993–94. The agency offers to supply information about people's financial affairs at prices which range from £100 to £1,000.
The agency offers to supply information as to a person's current bank balance for £245 and one's average bank balance over the past six months will cost an inquirer £250. Details of one's overdraft facilities will be provided for £300, but a copy of one's last bank statement is expensive: the inquirer will have to pay the agency £1,000 for it. Moreover, information as to one's overseas tax havens and numbered accounts is, I suspect, very expensive because the price list simply says, "price on application".
An ex-directory telephone number can be found for £150, but a copy of all one's itemised telephone calls over the previous quarter, which of course can be very informative, would cost £750. The agency describes itself as,
"the widely acknowledged market leader in the procurement of highly sensitive personal information".
It boasts,
"There is no security system that cannot be circumvented".
Ironically the price list ends with the words,
"Absolute confidence and discretion observed".
My amendment is designed to stop this outrageous activity. The noble Baroness, Lady Nicol, in her Starred Question, asked whether the Government considered the activities of such agencies, offering to sell commercial and personal information of a confidential nature, were legal and in the public interest. In his reply the Minister said,
"I know that a number of people have received the leaflet to which the noble Baroness refers. I agree with her: I thought that what it was proposing sounded pretty awful".
A little later he added,
"We have to make it clear beyond doubt that a person who obtains unauthorised access by deception to personal data is guilty of an offence".—[Official Report, 24/3/94; cols. 742-3]
I wrote to the distinguished chairman of one of the big five banks to ascertain his reaction to this sale of confidential financial information. He replied to me in a letter dated 15th March:
"There are clearly real difficulties in this area for all financial institutions … One of the real difficulties is that the activities do not appear to contravene the criminal law. We are advised that they are not contrary to the data protection legislation, and that the acquisition of such information is not to be regarded as theft at common law … We believe that there is a strong case for amending legislation in order to outlaw such conduct".
I wrote to the Director of Public Prosecutions, enclosing a copy of the leaflet. She replied in a letter dated 22nd March,
"The mere publication and distribution of the leaflet does not, I think, amount to any offence in itself.
Possible offences would include contravention of certain provisions of the Data Protection Act 1984 and the Computer Misuse Act 1990. There may be some way in which the services offered, distasteful and alarming as they undoubtedly are, could be carried out without contravening the criminal law. One can only speculate about that".
The position is that the distribution of this price list and its offer to sell confidential financial information is not an offence. That is stated unequivocally by the
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Director of Public Prosecutions. The attitude of the Government is equally unequivocal. I quote again the words of the Minister (at col. 743 of the Official Report):
"We have to make it clear beyond doubt that a person who obtains unauthorised access by deception to personal data is guilty of an offence".
I am sure that every Member of the Committee wants this disgraceful activity stopped, and stopped now. That can be very easily done by adding a few lines to this Bill. The amendment which I have tabled merely states:
"It is an offence to offer to sell information as to the financial affairs of a person which is not in the public domain".
The penalties are then set out
I wish to add a few words in explanation. I purposely kept the wording as simple as possible. First, my amendment does not cover, and is not intended to cover, all breaches of privacy. Secondly, the amendment is so worded that it would not touch reputable credit agencies who obtain their information from proper sources. Thirdly, I do not think it is possible for the Government to say, if they were so minded, that the wording is flawed. "Information not within the public domain" is an expression well known to the courts. I give an example. The identity of the bank where I keep my current account is not confidential. It is in the public domain. Every time I write a cheque I disclose where I bank. However, my bank statement is not in the public domain unless I choose to make it so.
The amendment is supported by the British Bankers Association, which represents over 300 member banks. The noble Lord, Lord Alexander of Weedon, regrets his absence but has authorised me to say that the amendment is wholly supported by him. It is supported by every noble Lord to whom I have spoken.
I do not know the attitude of the Government. They may say that they intend to introduce appropriate legislation at a later date, perhaps by amending the Data Protection Act or the Computer Misuse Act, or by a privacy Bill. But that, in my respectful submission, is simply not good enough. We do not want to stop this mischief in one or two year's time—we need to stop it now. This amendment in this Bill is our opportunity. We can put the amendment into the Bill and that will cure the greater part of the problem. I hope that a sufficient number of your Lordships will feel inclined to support this amendment so that if the Minister is not willing to accept it here and now he will at least say that he is prepared to take it back for consideration. I beg to move.
3.45 p.m.
Baroness Nicol: I rise briefly to support the noble and learned Lord, Lord Brightman. I feel the most important point he made is that we need to deal urgently with this problem and this is our opportunity. It may be helpful to the Committee to know that since March I have spoken to a great many Members of this Chamber about this matter. Of the 40 or so to whom I have spoken, only one felt that the matter was not important. I hope the Minister will take that on board.
Lord Boardman: I strongly support this amend-ment. The Committee may wonder where this information comes from which is so readily sold. One of

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the problems is that computers today can, at the press of a button, disclose an awful lot of information about a person's accounts, his address, and other such matters. The computers are available to a great number of people. I am not suggesting that all those who have access to computers fraudulently use that information, or sell it for gain. There may be the odd black sheep who does so, but certainly in my experience the desire to keep this kind of information confidential extends right across the financial sector, certainly as regards all respectable banks.
The real danger lies in the duplicity that is used by those who try to seek this information. As the noble and learned Lord just said, it is not difficult to find out to which bank someone belongs. Nor is it difficult to find out someone's account number, because the number is printed on that person's cheques.
If someone rings up the branch and claims that he is Mr. X, gives a great deal of information and says, "I would be grateful if you would let me have particulars of my account", the recipient of the call is placed in a difficult position. Staff do not want to offend a good customer by saying, "I don't know who you are. You must come into the branch and disclose your identity". If the caller gives enough information concerning personal details, which are available from a chequebook, Who's Who and other sources, bank staff may well give information which they would not willingly give to anyone but the account holder.
Information can be given in all innocence by people who hold that information. It is therefore right that people who seek such information should be placed under financial penalties. They should not be rewarded. They should be penalised severely for the duplicity or corruption that they deploy in obtaining confidential information and using it for their personal gain. I strongly support the amendment.
Lord Campbell of Alloway: At the request of the noble and learned Lord, Lord Brightman, I should like briefly to express my support for the amendment and in particular for its immediate and urgent introduction into law. The British Bankers' Association says that it wishes to put an end to this unsavoury business and without the law on their side banks cannot enforce their own codes of practice. I merely wish to add those remarks in support of immediate and urgent action.
Baroness Young: I should like to support the amendment most strongly. First, I should declare an interest as a non-executive director of the National Westminster Bank.
I agree entirely with everything that the noble and learned Lord, Lord Brightman, said. He put the case very clearly. There is an urgent need to stop this disgraceful practice, which is of great concern to the whole of the financial services industry.
On looking again at the report of the debate on the Question of the noble Baroness, Lady Nicol, I detected a hint that my noble friend the Minister might think that this matter perhaps ought not to be dealt with in this Bill and could be put off until a later stage. If that is his view I hope very much that he will think again. A number of
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other issues besides bank accounts are involved, such as medical records and so on. Therefore, it is a much wider issue.
It is my experience in public life that: frequently the best can become the enemy of the good. We have an opportunity here and now to deal with a specific point. The amendment unquestionably has the support of all Members of the Committee. I agree with the noble Baroness, Lady Nicol. Everyone to whom I have spoken agrees that this ought to be included in the Bill. I hope very much that my noble friend will consider the matter urgently and if the amendment is not absolutely correct will review it and bring the matter back to us at Report stage.
Lord Tugendhat: I was not one of those to whom either of the noble Lords spoke, nor am I the chairman of the financial institution to which the noble and learned Lord, Lord Brightman, wrote. But as chairman of Abbey National I certainly have an interest to declare.
After listening to the noble and learned Lord, Lord Brightman, it seems to me that it would be very difficult to understand how the Government could reject the substance of the case. If they are not prepared to accept the amendment which the noble and learned Lord and the noble Baroness opposite propose, then it should be incumbent upon the Government to find an alternative form of words and introduce another amendment on Report.
Much of what has already been said in this brief debate sums up the nature of the problem very clearly. In essence the amendment seeks to resolve not one but two problems. It seeks to resolve the problem that arises from the sale of confidential information about individuals. Consequentially upon that, it also seeks to resolve the problem that those who sell such information, and who almost invariably obtain it by nefarious means of one sort or another, if not by suborning bank staff then by deception, are at present protected by the law. That is the problem to which the chairman to whom the noble and learned Lord wrote referred. It is extraordinary that the Government should permit a loophole of that sort to continue.
I must stress that the banks themselves and other financial institutions are under an obligation to maintain strong security systems and internal procedures to protect the confidentiality of their customers' data. That goes without saying. But surely the law should underpin and support those procedures rather than undermining them and making it easier rather than more difficult for people to carry on the practices to which the noble and learned Lord, Lord Brightman, referred.
As my noble friend Lady Young has just said, there is a problem not only in relation to financial information but also other forms of information: medical records, educational records, tax matters and other information of that sort. I can well understand that the Government might wish to table an amendment or amendments which gathered up those matters as well. But as the noble and learned Lord, Lord Brightman, said in introducing the amendment, we are dealing with an

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urgent issue, the urgency of which has been demonstrated by breaches of confidentiality that all of us have read about in the newspapers.
Therefore, while emphasising the responsibilities of the banking industry and its commitment to the greatest degree of confidentiality and to the most watertight forms of security system, I urge the Government to pay heed to what the noble and learned Lord, Lord Brightman, said and either to accept this amendment or to undertake to bring forward another amendment in the same sense at Report.
Lord Peston: I rise mainly to ask a question, wearing my trade and industry hat. I find it curious that what I regard as an industry matter is dealt with as a matter of criminal justice. I do not doubt for one moment that the mischief to which the noble and learned Lord, Lord Brightman, with my noble friend Lady Nicol, addresses himself and his amendment needs to be addressed, but I question whether it can be demonstrated more strongly than it was by the noble and learned Lord that an amendment of this type will not interfere with legitimate business.
In particular, when I first saw the amendment I thought that it would get in the way of perfectly legitimate credit rating businesses. I agree that there may be a technical definition of "public domain" in the law that I do not understand, but a great deal of the information which those bodies sell I would regard as private information. It is information relating to the creditworthiness of individuals, including failure to pay bills.
My concern is not related to the need to deal with the mischief. I was as horrified as anybody by the story which the noble Earl himself told us a few weeks ago. However, I should like some reassurance from the noble and learned Lord and the Government that there is not the slightest chance that this amendment, given how broadly it is drawn, could undermine an important part of the financial activities of the City.
Lord Hailsham of Saint Marylebone: I should like to add my humble words in support of what my noble and learned friend Lord Brightman said. In general I am not in favour of using this Bill as a vehicle for introducing a great many new criminal offences. However, I believe that this is an exceptional case and that my noble friend would be wise to treat it as such.
I merely put one question to my noble and learned friend about the amendment. That is that the amendment appears to make it an offence to offer to sell information but does not seem to make it an offence actually to sell the information. I dare say that that was intentional but I should like to know why.
Lord Brightman: I hope that the Committee will allow me to answer those questions now. To answer the last question first, because it is clearer in my mind, I do not think that it is possible —if I remember my law books correctly—to sell without one side being an offerer and the other side being an acceptor. Therefore it is quite sufficient to use the phrase "offer to sell". I
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have used that terminology because what I really want to do is to stop the circulation of this outrageous price list.
I turn now to the question about reputable credit agencies. As I indicated, they would not in any way be prejudiced because reputable credit agencies get their information from sources which form part of "the public domain", to use the expression that I have adopted. They obtain their information from court records, and so forth, which disclose to anyone who cares to read them the warrants which have been issued by way of execution, bankruptcies made, and so on. I do not believe that there is any possibility of a reputable credit agency being attacked. If I am wrong in that, perhaps with the greater skill which can be produced by parliamentary draftsmen, the matter can be amended at Report stage if the Minister will be good enough to consider it in the meantime.
4 p.m.
Lord Elton: The Financial Services Act, passed by the House in 1986, was designed to protect the interests of those using financial services. As one who spent two and a half years seeking to implement and operate that Act, perhaps I may add my words of support to the pressure for immediate action. I hope that my noble friend will not be tempted to wait for an amendment to that or any other Act which has been suggested, or to sweep everything into a new Act, and that he will act swiftly. If the amendment proposed is insufficient, I hope that at Report stage he will come forward with a provision that is sufficient.
Lady Saltoun of Abernethy: When my noble and learned friend moved the amendment, I was horrified to hear him say that the firm is apparently offering to find out and sell people's ex-directory telephone numbers. The amendment does not cover that. Ex-directory telephone numbers are an important part of many people's security arrangements. I should like that matter to be considered also.
Lord Inchyra: I am the current Director General of the British Bankers Association, among whose members I am pleased to include the bank of which the noble Lord, Lord Tugendhat, is chairman. The British Bankers Association wholeheartedly supports the contention of the noble and learned Lord, Lord Brightman, that urgent action by the Government is required. It also supports the intention underlying the amendment that he proposes.
However, the association has some reservations about the language of the amendments. In the first place, it feels that the amendment is too narrowly focused on financial information and that it ought to embrace all forms of confidential information that are held about individuals in various places. It is also uneasy that the amendment does not make the obtaining of information by deception an offence. At present, under the Theft Act, it is an offence to obtain goods or services by deception. It is the belief of the British Bankers Association that it ought to be an offence, under this Act if possible, to obtain information by deception.

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In order to overcome those reservations about the wording of the amendment, the British Bankers Association has had drafted an amendment which aims to deal with the problem comprehensively. The proposal has been sent to the noble Earl, Lord Ferrers. I hope that this afternoon I shall hear the Government's preliminary thoughts on the adequacy of the suggested amendment and that he may be willing to bring forward that amendment, or a near relative of it, at Report stage.
Earl Ferrers: When I saw the amendment on the Marshalled List, I knew that we would have an interesting debate. I did not anticipate that many would disagree with the noble and learned Lord in his amendment. As usual, the noble and learned Lord has made a devastating speech in an enormously persuasive fashion. When I read his amendment and heard his speech, I longed to say, "Yes, let us accept all this". But, of course, very often when one becomes motivated by enthusiasm one finds many reasons why the specific solution cannot work in that way.
Perhaps I may give the Committee the Government's view on the matter. I was grateful to the noble Lord, Lord Inchyra, for having written to me about the concerns of the British Bankers Association. The matter is of considerable moment. It concerns the private interests of people who find information about their affairs being made public—something which causes great anxiety to everyone. That anxiety has been expressed this afternoon. But I agree with my noble friend Lady Young that we have to be careful that, in aiming for the best, we do not find that it becomes the enemy of the good.
The noble and learned Lord gave some examples of the staggering claims made by some organisations that they can obtain and then offer for sale personal information of various kinds about other people. That is a pretty distasteful operation. In the view of many it is an infringement of the privacy of an individual. Having been on the receiving end of some of that, I am bound to say that I have a great deal of sympathy from that point of view. It is especially objectionable when personal information is sold for pecuniary advantage.
There is the difficulty that if we address the sale of information we may be tackling the problem from the wrong end of the stick and be undermining some perfectly legitimate forms of activity.
I believe that the noble and learned Lord, Lord Brightman, quoted my words to the effect that a person who obtains information of a confidential nature such as this must be guilty of an offence. The noble and learned Lord did not quote me; he shakes his head in dissent. In that case, I shall remove my objections to what he said; I had thought that that was what he said.
The focus of the law at present over these matters is upon protecting private information against improper disclosure. If one is protected from improper disclosure, the person will not have the ability to sell the information. We have the common law of confidentiality which protects against the disclosure of information which has passed between two parties in confidence in certain circumstances.
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There are also the provisions contained in the Computer Misuse Act 1990 which prohibit unauthorised access to computer systems—which is commonly known as "computer hacking". There is the: Data Protection Act 1984, which applies to all computerised personal information. As the Committee will be aware, the Data Protection Act subjects computerised personal data to a set of data protection principles which are set out in statute. It requires all users of such data to register with the Data Protection Registrar. They have to supply details, among other things, of the sort of data which they hold, the purposes; for which the data are held and the categories of recipients to whom they intend to disclose those data. It is an offence for the data user, or for any of his employees, knowingly to disclose data to any person who may be in a category which is not covered by the entry in the register. One then asks: how do inquiry agents and others get hold of personal information which is stored on a computer? It seems to us most likely to occur in one of two ways: first, with the knowing co-operation of an employee of the firm concerned; and, secondly, with the innocent co-operation of an employee of the firm concerned when that person is led to believe that the disclosure in question has been authorised and is above board.
In the first case—where someone on the data user's staff deliberately makes an authorised disclosure—it is pretty clear that an offence will have been committed under the Data Protection Act and that the person who incited its commission is probably guilty as well.
It is a different matter in the case of the unwitting disclosure—and this is where we think there may be a gap in the law, since the employee in those circumstances does not commit an offence. And because the employee commits no offence, it is our view that the third party—the outsider who got him to make the disclosure in the first place—has probably not committed an offence either. That is the perceived gap in the law which I told the House on 24th March that the Government wish to fill.
That is the approach which we think it is best to take. It deals with the point of disclosure rather than the particular use which is made thereafter of the information which should not have been disclosed in the first place. There are several advantages in approaching the problem this way round. One is that it would cover all types of information which are covered by the Data Protection Act—not just financial information. That would deal with many of the points which Members of the Committee are concerned about relating to medical records. Another is that it would apply to disclosures for any purpose, not just when the subsequent intention is to offer the information for sale.
The noble and learned Lord, Lord Brightman, said in a persuasive way that we could put it all right by adding a few lines to the Bill. The biggest trouble with the noble and learned Lord's amendment—and this was the trouble with which the noble Lord, Lord Peston, was concerned—is that it would outlaw activities which are perfectly legitimate. The noble and learned Lord said that credit reference agencies would not be covered and

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that it is not possible for them to be covered. That is what he said in his last speech. My view is that the credit reference agencies would be covered by the amendment.
Credit reference is a well-established and vital financial service. It depends upon credit reference agencies holding detailed financial information about a large proportion of the population on the basis of which decisions can be made by the financial institutions about the wisdom of their entering into further transactions with the individual concerned. For example, if a person wants to open an account with one of the major stores or take out a credit card, the firms concerned will naturally wish to check that the individual is likely to be a responsible person who will meet his bills. To do that they get in touch with one of the credit reference agencies who keep records of people's credit commitments and their previous financial history. It is in the customer's interests, as well as those of the firm concerned, that those checks should happen—and happen quickly. There are protections for the customer under both the Data Protection Act and the Consumer Credit Act. The point is that this is information, most of which is not in the public domain, to which the amendment refers. It is information which, perfectly legitimately, is offered for sale to other institutions by the credit reference agencies. My information is that they would be caught by the noble and learned Lord's amendment.
I suspect that there are other cases where a legitimate trade in information would be outlawed by the amendment. For instance, it would affect some forms of direct marketing which are not in themselves undesirable. The amendment might even make it an offence for a bank to charge a customer for sending him his own bank statement.
Those are some of the fundamental problems which the amendment produces. I do not believe that small adjustments to the drafting would necessarily solve them. The prime difficulty with the noble and learned Lord's amendment—attractive though it is—is that it makes it an offence to sell the information. What we wish to do is make it an offence and ensure that the person should not have the unauthorised information in the first place.
Lord Harris of Greenwich: That being so, what do the Government propose to do about it? The noble Earl has explained what he describes as deficiencies in the noble and learned Lord's amendment, but that being so and accepting, as he did, that there is widespread public anxiety about it and that there is a gap in the law, what precisely will now happen? Is the noble Earl prepared to indicate that at the Report stage of the Bill he will introduce an amendment in terms acceptable to the Government and to the House in order to deal with this mischief? We cannot go on, year after year, with this wholly objectionable behaviour carried out by a number of self-interested people.
Earl Ferrers: I quite see that. However, the noble Lord, Lord Harris, will recall that the substance of the amendment has not appeared in the criminal justice Bill before. He will also recall that many noble Lords have
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complained about the number of new offences which the criminal justice Bill incorporates and the number of extra areas it covers. This is a new area which the noble and learned Lord seeks to cover and as the Bill becomes longer and longer, so more offences are created.
I accept that there is a problem. I am prepared to take the matter away and consider it between now and Report stage. I cannot give the noble Lord the guarantee that I will produce an amendment, but I shall certainly consider the points which have been made strongly and, if I may say so, quite rightly.
Lord Brightman: I am most grateful to all those who have spoken in favour of the amendment. I am glad to be able to say that I am grateful too to the Minister for stating that he will take the matter away and consider it. In those circumstances, I ask leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Ackner Lord Ackner moved Amendment No. 154CA:
Before Clause 134, insert the following new clause:
("Criminal Injuries Compensation
. In section 171 of the Criminal Justice Act 1988, the following shall be substituted for subsection (2)—
"(2) Sections 108 to 117 of, and Schedules 6 and 7 to this Act shall come into force six months after the date on which the Criminal Justice and Public Order Act 1994 receives Royal Assent.".").
The noble and learned Lord said: For almost the past 30 years, since August 1964, successive governments have acted fairly and justly towards victims of violent crime by providing them with compensation through a scheme operated by the Criminal Injuries Compensation Board. That compensation has been based essentially on what the victim would have received if he or she had successfully sued the criminal in the civil courts. It has come to be known as the common law basis for damages for personal injuries. It is that scheme which the amendment seeks to continue in existence.
When the scheme started life, there was, of course, no previous experience on which to draw in assessing how it would work out in practice. Accordingly, it was brought in on a non-statutory basis, the payments being ex gratia. The scheme operated smoothly for some 15 years until the Royal Commission on Civil Liability and Compensation for Personal Injury—the Pearson Commission—reported in 1979. It considered and commended the scheme but recommended that it should be put on a statutory basis. That was no doubt because permanent and substantial public expenditure was involved and therefore, as a matter of parliamentary propriety, it should have a proper statutory basis so that Parliament would be in a position to control it.
A few months later, the Home Secretary confirmed the Government's acceptance of the recommendation of the Pearson Commission; firstly, that the scheme should be put on a statutory basis, and, secondly, that compensation under the scheme should continue to be paid on the common law basis for damages.
Nothing happened for some four years until a debate was initiated by my noble friend Lord Allen of Abbeydale, who much regrets that he is unable to be present today. He was a member of the Pearson

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Commission and drew attention once more to the need to put the scheme on a statutory basis. At the end of the debate, the Government confirmed that it was and remained their intention to do precisely that.
Now comes the Criminal Justice Act 1988 referred to in my amendment. That implemented the Government's undertaking to make the scheme statutory. Detailed provisions concerning the scheme are to be found in Sections 108 to 177 and Schedules 6 and 7. Section 171 places a statutory obligation on the Home Secretary to bring the relevant sections into force. My amendment seeks to ensure that the will of Parliament, as recorded in that Act, is now carried into effect, thereby putting the scheme on a statutory basis and obliging the Home Secretary to do what he obviously does not wish to do, which is to obtain parliamentary approval for any alterations which he may thereafter desire to make to the scheme.
Members of the Committee may well ask: what happened between 1988 and today? First, in 1989, because of the unprecedented rise in applications and the very sizeable backlog of cases, with consequent delays to all claims, it was decided not to make the scheme statutory at that date—and I emphasise those words—because it would disrupt the work and create further arrears. It was therefore agreed for the immediate present to delay the making of the scheme statutory but to streamline it in certain respects.
Now comes the rub. On 23rd November 1992 the Secretary of State, in a Written Answer to a parliamentary Question, gave notice that the Government intended to introduce a new tariff-based scheme to compensate the victims of violent crime. He said that the scheme offered,
"the best prospect of providing quicker payments to claimants through a means that is fair, straightforward and understandable". —[Official Report, Commons, 23/11/92; Col. 458.]
In December 1993 the Government presented, without any consultation with the Criminal Injuries Compensation Board, a White Paper (Cm. 2434) setting out their plans in more detail. The opening paragraphs stated that,
"the aim would be to provide a better service to the victims".
In my respectful submission, those protestations were sheer hypocrisy. We now know that the real aim and purpose of the non-statutory ex gratia tariff scheme proposed in the White Paper is to cut the future cost of the current scheme by, it is said, about half. But that reason has never been part of the consultation process and the validity of the Government's projected figures has, as a result, never been properly investigated or tested. But if money is to be saved, the means to be employed by the imposition of the Government's proposed tariff are grossly unfair, since those who suffer the more serious injuries and the more substantial losses —that is, the most vulnerable—will receive but a fraction of the compensation which is now provided.
Paragraph 38 of the White Paper is a stark statement of the Government's intention to disregard the will of Parliament. Some may think that it bears the hallmark of elective dictatorship. It reads as follows:
"Provision was made in the Criminal Justice Act 1988 for the scheme to be placed on a statutory footing … With the impending demise of the current scheme"—
I interpolate: merely by reason of the imposition of the tariff scheme—
"the provisions in the 1988 Act will not now be implemented. They will accordingly be repealed when a suitable legislative opportunity occurs".
In the debate on the Unstarred Question which I asked on this very subject, which took place on 2nd March, the noble Lord, Lord Ewing of Kirkford, drew attention to the fact that on the previous Monday the Government had tabled some 17 new clauses to this very Bill, which was then being debated in another place, and he suggested that they should table one further new clause since here was "a suitable legislative opportunity" within the meaning of paragraph 38 of the White Paper that I have just quoted. The Government decided that they would not give Parliament an opportunity to debate their proposals. That was not altogether surprising since the Government had so little confidence in the merits of the proposal fundamentally to change the basis of compensation that, as I have previously said, they did not even bother to consult the chairman or the members of the Criminal Injuries Compensation Board. Indeed, not a single organisation that supports victims has come out in favour of the Government's tariff scheme.
I shall now seek to justify my assertion that the proposed scheme is grossly unfair. Under the common law damages system, each application is individually considered so as to compensate the individual victim for the loss and injury that he has actually sustained. There is a conventional sum for pain, suffering and loss of amenities consequent upon, for instance, the loss of sight of an eye, the loss of a limb, etc. In serious injuries by far the major part of the total award reflects the loss of income, loss of pension, medical treatment and often the very large expenses that are involved in making the home in which the injured person lives capable of being used effectively by him.
The tariff system that is proposed by the Government does not take into account the vastly differing effects of similar injuries on different persons. No regard is to be had to such fundamental matters as the age, sex, occupation or way of life of the victim, all of which are reflected enormously in the effect which an injury may have on an individual. For instance, severe facial scarring of a girl of 15 is to be compensated with the same figure as that for an old woman of 90. No account is taken of loss of past or future earnings, of past or future medical expenses, or of structural or other alterations to the home. A very recent example, which occurred just before the debate on the Unstarred Question, involved a man in his mid-forties who was paralysed from the neck downwards. He received an award which involved £72,000 for loss of earnings (that is, £6,000 calculated by a 12-year purchase); a sum for future medical and care costs and support of £726,000 over a 15-year period; and for alterations to his house, special care, special transport, etc., £255,000. None of those figures would he get under the proposed scheme.
Perhaps I may take the example of an airline pilot who loses the sight of one eye and as a result ends his flying career. He will receive the same figure as an elderly pensioner with a life expectation of a few

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months. The figures in the tariff are based, it is true, on an analysis of the Criminal Injuries Compensation Board's awards and are generally comparable with the pain and suffering element of general damages. It is true that because of the averaging process employed by the Government each award contains a degree of loss of earnings. But that simply means that those who have had no loss of earnings will be compensated slightly more than they are at present, but at the expense of those individuals who have lost earnings.
Prior to the debate last March I gave the Government a lengthy list of recently reported cases illustrating how those who had suffered most would, if the tariff scheme had been in operation, have had their compensation savagely cut. Briefly, I shall cite a few examples. A paraplegic had a total award of £689,000, loss of future and past earnings being £100,000 and future care over £280,000. He would have received nothing for those two items, and his total under the new scheme would be £175,000. In a brain injury case where the victim required continuous care day and night, the total award was over £500,000, of which future care accounted for £234,000. Under the new scheme he would receive only £40,000. Those were two cases of injuries of the greatest severity. But there are those with less severe injuries where the earning capacity is seriously affected. For example, a psychiatric nurse whose arm was badly injured received a total of £126,000, of which only £17,720 was attributable to general damages for pain, suffering and loss of amenity. Under the new scheme she would be awarded £5,000. There was a case of a wrist injury which did not unite properly, leaving the applicant with a continuing disability in her dominant right hand. She received a total of £55,000. Under the tariff scheme she would receive only £3,000. There was a case of a back injury to a male police officer aged 34. He received for future loss of earnings over £61,000 which, together with other items of special damage, amounted to £121,000. Under the tariff scheme he would receive £7,500.
The other quite distinct category which would suffer most seriously by the application of the tariff system would be the families of victims of murder and manslaughter. Under the provisions of the Fatal Accident Acts dependency awards to a wife or dependent children are based largely on an assessment of the amount of financial support provided by the deceased and for how long it would have lasted. Future loss of earnings feature prominently in such calculations.
Let me give one example of a case decided in June 1993 which involved a female aged 38 at the time of the hearing who witnessed her husband die following a stabbing at the front door of their home. She was married with two children aged six and four. She suffered the deepest distress as a result of that traumatic experience. She received general damages of £17,500 but in addition nearly £120,000 for loss of dependency, making a total award of over £137,000. Under the new scheme she would receive the stock figure of £10,000 by reason of the death of her husband and £7,500 for her condition, making a total of £17,500, plus funeral
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expenses. That case illustrates that the innocent families of manslaughter and murder victims whose financial security was previously provided for by dependency awards will receive nothing for the future.
The issue as to whether the Secretary of State has acted unlawfully and therefore ultra vires in deciding to implement the tariff scheme came before the Divisional Court last month on an application for judicial review. The application failed and an appeal to the Court of Appeal is now pending. The Divisional Court was of the view that, unless an Act of Parliament in terms specified when an Act should come into force or specifically imposed an obligation on a Minister to bring an Act into force by a certain date, the Minister had in law a discretion not only as to when but also as to whether a particular Act of Parliament should take effect at all. The court effectively held that a Minister of the Crown has power to ignore the will of Parliament expressed in legislation unless Parliament specifically imposes an obligation on the Minister to bring the Act into force.
I find that surprising, as no doubt do those who have advised that the present appeal should go forward. However, we are not concerned with the technical legality of the Minister's action. We are concerned with whether we should condone a serious affront by the Government to parliamentary democracy. We are concerned with whether we should allow a Minister, without first seeking parliamentary approval, to frustrate the will of Parliament by refusing to carry into effect Parliament's clearly expressed intention to put the current scheme on a statutory basis. We are concerned further with whether he should be allowed to compound that refusal by replacing the current scheme with a non-statutory ex gratia tariff that ignores a fundamental tenet of justice and fairness which has consistently been applied by our courts throughout this century; namely, that compensation must be matched to individual circumstances.
I respectfully submit that the answer to those concerns is to be found in the amendment. I beg to move.
4.30 p.m.
Lord Carlisle of Bucklow: In rising to address the Committee I must declare an interest as chairman of the Criminal Injuries Compensation Board. I have held that office for the past four years.
I speak in support of the amendment moved by the noble and learned Lord, Lord Ackner. I support it not so much because I believe that at this moment it is essential that the existing non-statutory scheme should be made statutory; nor that the scheme as proposed to Parliament in 1988 may not be capable of further improvement. I support it in particular because I believe that this is the only way to persuade the Home Office to think again before implementing its new scheme for compensating victims of crime which it proposes to implement backdated from 1st April this year.
As the noble and learned Lord said, the new scheme fundamentally changes the way in which victims of violent crimes are compensated. It abolishes the Criminal Injuries Compensation Board—which is a wholly independent body, at the moment responsible for

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assessing the amount of compensation to be paid in individual cases according to the principle of common law damages—and replaces it with a scheme to be run administratively, which is to compensate individuals on a total tariff basis. As we have heard, it takes no account whatever of the different effect of similar injuries on different people; nor does it take any proper account of the loss of earnings or loss of future earning capacity. In our debate of 2nd March, I had the opportunity to express the unanimous view of the present membership of the Criminal Injuries Compensation Board. The board considers that the Government's proposal is fundamentally flawed in that it is both unfair to individual complainants and in certain aspects will be found to be unworkable in practice. Perhaps I may go further. I believe that the proposed new scheme is far less fair than the present one. It was brought in without any form of consultation and I believe that the method of introduction can fairly be described as an abuse of Parliament. The scheme is contrary to our international obligations, and the grounds advanced to justify the change will bear little scrutiny. The now accepted principal ground of saving money—with which I do not in any way disagree-—proceeds on a false basis and is supported by statistics which, to say the least, are wholly misleading and by assumptions about future expenditure which I believe to be unjustified.
I accept what has often been said; namely, that in this country since 1964 we have had the most generous scheme in the world for the compensation of victims of violence. I accept also that the scheme introduced at that time is not necessarily the right framework for a wholly different situation 30 years later. I go further and say to the noble Earl that I accept that much has changed since 1988 when the present Government commended the present scheme to Parliament for its approval. The changes may justify looking again at aspects of that scheme. But that cannot possibly justify changing the fundamental principles on which compensation has been based without consultation and without recourse to Parliament.
What is fundamentally wrong about a wholly tariff-bound system, as the noble and learned Lord, Lord Ackner, said when he dealt with this point at length, is that it takes no account of the widely different effects of injuries on different people. As he said, none of the most obvious and fundamental aspects, such as age, sex, occupation and way of life, are taken into account in a tariff system.
I shall not attempt to repeat the speech I made in this Chamber on 2nd March. But perhaps I may add one more example to those already given by the noble and learned Lord. It is quite absurd to suggest that a seriously fractured ankle is no more damaging to a young and skilled building labourer, who may be many months off work and whose future ability as a steeplejack, say, may be gone for ever, than it would be to a retired man in his 70s; nor for a girl model to be scarred on the face compared to a similar scar on a man of middle age.
While the tariff figures arrived at are generally comparable with those currently being awarded for pain and suffering, there is no proper attempt made to
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compensate for loss of wages or earning capacity. That means that all the savings it is aimed to achieve will be at the expense of those who have the worst injuries—in many instances, the most deserving of cases. As regards its being unworkable, I can only repeat that in cases such as sexual abuse, post-traumatic stress disorder or scarring, the effects vary so enormously in different people that to use any form of tariff is meaningless.
I turn to my other criticism; that it is being brought in without any attempt at consultation. I find that extraordinary. The board which has been responsible for running the scheme for 30 years was not consulted in any way before the decision of principle to change the basis of compensation was taken. I was asked to go and see the then Home Secretary and was informed that he would be announcing his decision to Parliament the following day. I returned and immediately wrote a letter to Mr. Clarke. I said,
"I feel, therefore, that I must express in writing to you my concern at the effect [of] what is intended and in particular to express my surprise and very great concern that the Home Office should decide to alter the very basis of the Scheme without any prior consultation with the Board as to the practicality of what is proposed, and with apparently little serious thought having been given to its consequences".
It is not only the board that has not been consulted. As far as I know, no other body has been consulted. It is clear that consultation was intended. When the Home Secretary made his Statement in November 1992 he said that it was intended that the White Paper should be produced in early 1993. In a debate in the other place in March 1993, Mr. Michael Jack, the then Minister of State, said,
"Of course, there will be an opportunity for the House to consider our proposals when the White Paper is published". — [OfficialReport, Commons, 18/3/93; col. 508.]
In the end the White Paper was not published until 13th December last year on the eve of the adjournment of Parliament with no possibility of debate or consideration. In February the details were published.
Surely, on a matter which should be as non-political and non-contentious as compensation for victims of crime, that is not the proper way for the Home Office and Government to proceed. I said that it was contrary to our international obligations. As I am sure Members of the Committee are aware, we are a signatory—in fact I believe the author—of the European Convention on the Compensation of Victims of Violent Crimes. We signed that convention in February 1990. It states,
"Compensation shall cover, according to the case under consideration, at least the following items: loss of earnings, medical and hospitalisation expenses and funeral expenses, and as regard dependants, loss of maintenance".
Those are the very words which, as the noble and learned Lord, Lord Ackner, pointed out, the present tariff scheme totally ignores, and the White Paper accepts that it does so.
The noble and learned Lord mentioned the lack of assistance for dependants. In the White Paper, in paragraph 25, justification is given for having a single award of £10,000. It is said that only 25 out of 250 awards were in excess of that sum and therefore most claimants will be better off. Tell that to the dependants of the young constable with three young children who was killed on duty endeavouring to protect other people!

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Is it an abuse of Parliament? I find it extraordinary that a government who take a Bill through Parliament to put into legislative form a board which shall be responsible for determining compensation payments should then not only not implement it—I accept that they have the right to do that —but actually introduce a scheme whose organisation and basic principle of compromise is totally in conflict with what they commended to Parliament, and should do so by the use of executive power without regard for parliamentary approval. What is Parliament's purpose if one can commend one action to Parliament and then decide to do something totally different without going back to Parliament for approval?
I apologise for perhaps speaking too long, but I want to turn to the justification put forward by the Government for the scheme. I said that it bore little scrutiny. Originally, it was put to me in the letter I received from the Home Secretary in terms,
"that the Criminal Injuries Compensation Scheme is, in its present form, intrinsically incapable of delivering the sort of service which victims now expect—that is, a service which produces awards quickly and in a way which can be seen to be fair, straightforward and understandable".
I do not accept that. Any scrutiny of that view shows that while clearly there will be some saving in time, it will be nowhere near as great or significant as the Government suggest.
Above all, I want to turn finally to what is accepted as the real reason for the proposal; that is, that the cost of compensation has become unsustainable. The moment the Government decided to make the medium rather than the average award the basis of the tariff, then any suggestion that the scheme was even in its introduction to be cost neutral was dropped. The compensation will be reduced by some 20 per cent. That will mean a saving of some £30 million—a not insignificant sum. All I say is that it should not be done at the cost of the worst injured rather than by other means.
I hope that my noble friend will not rely on the same statistics the Home Secretary chose to use in the House of Commons in order to justify the phrase he used in a recent letter; namely, that the costs of the scheme were "spiralling out of control". That just is not so. It is misleading. To compare, as the Home Secretary did, the number of applications made in any year with the amount of money spent on compensation in the same year, to do it for three different years, and then show that the increase in the cost was vastly greater than the increase in the applications is a totally bogus exercise. The amount of compensation in any year has no relationship whatever to the number of applications received during that year. We are not comparing like with like. The amount of compensation depends not on the amount of applications but on the number of cases resolved during that year. Even more accurately, it may mean the number of awards made. Further, not to take any account in the examples given of the drop in the value of money over a 30-year span is ridiculous. And if we take that ridiculous premise we may end up with a ridiculous answer.
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The Home Secretary said that since 1987–88 there had been only a 50 per cent. increase in the number of applications but a threefold increase in compensation. But if, as I say, we look at the number of resolutions, in fact they have more than doubled during that period. If we take account of the effects of inflation the result is dramatically different. Taking it as being strictly accurate and only awards made, and relying on the papers in the Home Office's White Paper at Annex A, the average award at 1993–94 prices in March 1988 was £3,486. In March of this year I can tell the Committee and the Minister that it was £3,778. It is an increase, but there is no suggestion that the cost is spiralling out of control.
Even more stark is the other figure which the Home Secretary gave. He stated that the increase was hugely out of proportion and that since the scheme came into effect in 1965–66 applications had risen by 27 per cent. and compensation had risen by 378 per cent. If instead of comparing applications we compare the number of cases, and if we take into account the tenfold reduction in the value of money in that period, we find that on their calculation the average award in 1965 was £3,458 and it is £3,778 today, which is something less than a 10 per cent. increase in a period of 29 years.
Equally, what is clear is that the amount of money has gone up. The reason for that is that the number of people claiming has increased and more people are being compensated, and the reason for that is the increase in the amount of violent crime, combined with the very commendable efforts made by the Government to encourage victims to apply. Do noble Lords remember the Victim's Charter and the encouragement to the police to tell people to apply for compensation? I agree with my noble and learned friend that it is somewhat hypocritical to claim that we are putting the victims first when we encourage applications to the board specifically for compensation and then say that the bill has to be cut because we cannot afford it.
As far as the projected savings are concerned, I do not accept the figures. I do not understand, because we have not been told, how the figures for the projection of £500 million by the end of the century have been arrived at. I believe that the assumptions are wholly spurious. I am told that they assume a 9 per cent. increase in applications every year between now and the turn of the century. I should like to say to the Minister that I do not believe that that will be the situation. Over the past two years, if one takes out the jump in March because of the new incoming scheme, the figures have been the same, and for April and May of the past three years the figures have run at a consistent number. In addition, they have added an increase of 10 per cent. per annum in cash terms onto the awards. That is not something that I accept.
One can find a very simple answer to the projections. If we are right in the assumptions that have been made, if the figure in the book is increased by 19.5 per cent., for the last year we should have spent £180 million; but we have spent £165 million. Therefore, in the first year of that progressive calculation they are £16 million out when compared with what occurred.

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I apologise to noble Lords for having spoken at such length. If the position of the Government is that we cannot afford to pay as much compensation as we have been doing, let them say so and let us get round the table to work out a system which is fairer than that which is proposed. However, to propose savings, all of which will fall upon those most injured or those most deserving, in my view and in that of the board is wrong. It is a proposal that I hope the Government will not persist in.
Lord Lester of Herne Hill: May I briefly explain why I am pleased to support the amendment, which also stands in my name on the Order Paper. We have heard two remarkable speeches with which I so completely agree that I do not need to detain the Committee for more than a few moments.
I suggest that the matter before the Committee is not one of law, which is for the courts and will have to be determined by the Court of Appeal, and, if necessary, by the Law Lords, but a matter of serious constitutional propriety. Parliament has spoken in 1988, implementing not only an international convention which we ratified two years later but also the report of Lord Pearson's Royal Commission. Parliament's intention has been treated by the Government, I am sorry to say, as if it were written in water. That is an abuse of Parliament, if not an abuse of power. It is surely important that today Parliament should exercise its law-making powers by supporting the amendment and, therefore, ensuring that its intention is given effect to within six months of the coming into force of the Bill before the Committee.
Lord Irvine of Lairg: I spoke on this issue in March, when the matter was last before your Lordships. We are grateful to the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Lester, for bringing it before the House once more on an occasion when we have an opportunity to vote. I believe that the amendment will and should carry support across your Lordships' Chamber.
I do not think that I can sufficiently remind the Government of the sharp contrast between what they now propose for criminal injuries compensation and the calls at last year's Tory Party Conference for more to be done for the victims of violent crime.
On the previous occasion the noble and learned Lord, Lord Fraser of Carmyllie, stated,
"we estimate that the majority of applicants will receive as much or more under the new scheme as they would have done under the existing one. Current estimates suggest that about 54 per cent. of applicants will be in that position".—[Official Report, 2/3/94; col. 1116.]
This is a Government who are presiding over a rising tide of violent crime at the same time as they are drastically reducing compensation for those who suffer most from violent crime.
As the noble and learned Lord stated, the argumentation of the White Paper is humbug and, I would add, not even high quality humbug. The objective of the Government is stated to be to provide a better service to victims; so the 46 per cent. who will get less are told that there will be a superior service in giving them less. We are then told that everyone who sustains
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a similar injury will be treated in a similar fashion. What that suggests, although it is not true, is that like cases will be treated alike: emphatically, they will not be.
The financial consequences of personal injury are infinitely variable. The true position is the opposite of the suggestion made in the White Paper. The new scheme is incapable of doing justice because it will treat fundamentally different cases as though they were the same.
The point about the existing scheme—and I say existing because, pending the outcome of the appeal to the Court of Appeal and perhaps beyond, the new scheme is not being implemented—is that the compensation paid distinguishes among victims according to the impact of the injuries on their individual earning capacities. Is the noble Lord unwilling or unable to acknowledge that, as stated by the noble Lord, Lord Carlisle, his Government, on pure cost-cutting grounds, will be doing drastically less for those who have lost their livelihoods from violent crime?
I should like to ask the noble Lord what is the principled reason for distinguishing between compensation for personal injuries caused by the negligence of another at a workplace or in the street and compensation for criminal injuries. In the ordinary personal injury case compensation is not confined to an injury-related tariff: common law damages, which provide compensation for loss of past and future earnings, apply. If it is right that that should be the compensation for personal injuries caused by negligence, why should victims of violent crime, who suffer the greatest loss, not continue to receive compensation on the same common law basis?
On the previous occasion the noble and learned Lord, Lord Fraser of Carmyllie, stated that fortunately the very serious incapacitating or life-changing injuries are rare indeed. If that is the case, can the noble and learned Lord not show some flexibility of the kind that was suggested by the noble Lord, Lord Carlisle? Can he not agree that the new scheme should at least continue to provide compensation on a common law basis in that small number of tragic cases? A concession along those lines might greatly affect the decision of many noble Lords if that issue is to be pressed to a vote.
Lord Harris of Greenwich: The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Carlisle of Bucklow, have, in my view, made devastating speeches, and we look forward to hearing some form of response from the noble Earl.
I agree with the noble and learned Lord that in parliamentary terms what the Government have done is improper. The noble Lord, Lord Carlisle of Bucklow, drew attention to the inconsistencies and the deep unfairness of what it is proposed should be introduced. The changes to the scheme will, as we all recognise, have a severe effect on those who in future are going to be very seriously injured and for whom compensation from the scheme will, apart from state benefits, be their sole means of support.
Perhaps I may give some examples of what will follow and in particular mention one occupational group that is most likely to be at risk of assault from criminals;

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namely, the police. In last year's report of the Commissioner of Police for the Metropolis it was revealed that nearly 12,000 officers in London were injured while on duty. Taking account of their manpower, on average nearly every other officer was affected by injury. Since then, Sir Paul Condon, the commissioner, has indicated his serious concern about the escalation in the number of violent attacks on police officers. Yet this is the moment chosen by the Government to announce cuts in the awards made to such officers.
I shall quote the views of one firm of solicitors. Russell Jones & Walker have, as lawyers for the Police Federation, acted for police claimants for the past 30 years. Few other law firms can claim such a comprehensive knowledge of the principles and the operation of the scheme. This is what the firm has told the Police Federation will be the consequence of the Government's new scheme:
"The proposals will result in the vast majority of your members who are seriously injured receiving significantly lower standards of compensation".
I cite the case of an officer who has been totally blinded as a result of an attack by a criminal. Under the new scheme the award would be £75,000, yet at the moment in such a case it is common for the board to award £85,000—£10,000 more—for pain and suffering alone. How can it be right to allow a blinded police officer, injured as a result of his duty to protect members of the public and deprived of the opportunity to continue his career, to have his compensation cut as a result of a decision by Ministers?
I shall give another example which was touched on by the noble and learned Lord, Lord Ackner: the case of a 75 year-old man who suffers perhaps a serious leg injury which causes paralysis. He will get a one-off payment of £25,000. It may be argued that that is reasonable given the expectation of life of that elderly man and his likely financial commitments. But precisely the same award will be paid to a 25 year-old police officer, with a young family, who had expected to serve for another 30 years in the service. That is wholly unjust.
Ministers have told us repeatedly that more should be done to help the victims of crime. They have told us also on innumerable occasions of the gratitude they feel to police officers who often have to confront vicious and violent criminals in the course of their duties. It seems extraordinary that in the light of those statements the Government are intending to make these savage cuts in the payments made to some of the most seriously injured victims of criminal attacks.
5 p.m.
Lord Windlesham: I wish to join the debate from a different angle. I am aware that in doing so I expose myself to the risk of crossfire between the noble and learned Lord, Lord Ackner, who spoke with such force in moving the amendment, and the Minister who will reply. I must declare a personal interest in the issue of compensation for victims because two years ago, at the invitation of the former Archbishop of Canterbury, I
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succeeded him as President of Victim Support, the national association of the many victim support schemes throughout the country. I speak today in a personal capacity and not on behalf of Victim Support, but what I have to say will not depart very far from the policy of that organisation.
Financial compensation for injury sustained as a result of a criminal action has been of central concern to all those working with or for the victims of crime ever since the discretionary scheme was first inaugurated 30 years ago. Over time criticisms have developed—not unnaturally, perhaps, over a period of 30 years—of the Criminal Injuries Compensation Board procedures, which we have heard outlined so persuasively by the noble Lord, Lord Carlisle of Bucklow, the current chairman of the board. Criticisms there have been, nevertheless, and I can summarise them in the form in which they were listed in the report of a working party set up by Victim Support which reported earlier this year, soon after the publication of the Government's White Paper.
The report was headed "Compensating the victim of crime". The criticisms of the existing arrangements— the arrangements post-1964 until the recent change of policy—were as follows: first, the exclusion of many victims as a result of the lower limit on awards which was set at £1,000 in January 1992—perhaps the most common complaint of all; second, the refusal or reduction of awards on the basis of the applicant's character; third, the fact that hardship and psychological injury resulting from crimes are not classified as violent; fourth, the often unsatisfactory relationship between compensation under the CICB scheme and the payment of social security benefits; and fifth, the lack of clarity regarding the relationship between the compensation scheme and the role of insurance, the responsibility of employers, and compensation by offenders themselves.
For these and other reasons, including the very long delays which have been endemic in the CICB practice, Victim Support is not wedded to the present arrangements, based as they are on common law damages. But well before the Government published their own proposals, the criticisms to which I have referred led to much thought being given to what was or could be an alternative structure.
What should be the principles for compensating financially those who suffer from the criminal actions of others? They are easily stated. The essential requirements of a compensation scheme are, I am sure we can all agree, that it should be fair, simple to understand, and reasonably quick. The latter require-ment conflicts with the present arrangements based in common law damages that individual assessments conscientiously investigated and carried out are no longer suitable for the huge number of cases that have to be considered each year. Next, the exercise of discretion by any discretionary body should be contained within a clear and published framework. Compensation to victims of crime should surely relate to the victim's pain and suffering resulting from physical or psychological injury, or both, and to loss of amenity. There should be no minimum level designed to exclude all but the most "serious"—I put that word in

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inverted commas—injuries. Nor should there be exclusions based on a person's character or conduct, apart from provoking or colluding in the offence, or financial circumstances. There should be no distinction drawn between those who are regarded as deserving and those believed to be otherwise. Compensation or financial support should be available on the basis of need to victims of property crime who have suffered serious loss which affects their livelihood.
If those are the principles, what then are the features which should underlie a compensation scheme? Despite the strength of the defence we have heard of the Criminal Injuries Compensation Board, it is inevitable that there will be changes. So it is a question of how an alternative scheme should be constructed and what it should embrace.
I suggest that the features of a new compensation scheme should include the following. First of all, the victims of crimes of violence should receive compensation for pain, suffering and loss of amenity and for psychological injury. In addition, there should be compensation for particularly damaging psychological injury caused by other types of crime, including burglary and racial harassment.
We have been thinking along tram-lines for 30 years as we have compensated victims of crime. Victim Support believes that the time has come for a new social security payment called a "criminal injuries benefit" to meet victims' loss of earning capacity. That is a crucial point which is covered under the present arrangements but which will not be covered by the new arrangements. The payment should be non-contributory and non-means-tested. Loss, of, or damage to, essential material possessions where the victim is in need should be covered by social security payments. They should be means-tested, but should be made in the form of grants, not loans.
I come now to a vital matter that has already been raised in the debate. I refer to the victims of homicide. Let us not allow ourselves to fall into the trap of talking of murder victims. We are talking about the victims of homicide in all its forms. Relatives bereaved by homicide should receive a bereavement award above the present level. Those receiving it should include a spouse or partner, children in the same household or in regular contact, and a former spouse if dependent; or, where the deceased was not married, parents, brothers and sisters in the same household, parents living elsewhere if still in regular contact and children if still dependent. Victim Support has proposed that the basis of such a scheme could take the form of a tariff. Injuries would be rated on a fixed and published scale. However, an important reservation—before the Government Front Bench embraces us as allies—is that no such tariff should be adopted until the rest of the package is in place.
To summarise, tariff scales should be set at acceptable levels, with regular review and updating. A new criminal injuries benefit should be established within the social security system to compensate for victims' loss of earning capacity. There should be the removal of the £1,000 lower limit. Exclusions relating to character and previous convictions should be
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abolished. Payments should be made without deduction of social security benefits and should not lead to loss of those benefits.
I have spoken for rather longer than some other noble Lords, but I do so in order to broaden the debate and to set out an alternative approach lying between the Government's scheme and the preservation of the existing arrangements, which have been so eloquently defended by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Carlisle of Bucklow. I too share their reservations about the way in which Ministers have handled this issue. It has been unfortunate. I should be surprised if there were not some embarrassment in the Home Office. However, looking forward to the future, I urge the Minister, and the Committee of the House, to consider the alternative proposals I have put forward.
5.15 p.m.
Lord Bridge of Harwich: Unlike the noble Lord, Lord Windlesham, it is not my intention to go into details of comparison between the old scheme and the proposed government scheme because it seems to me that there is one overriding principle upon which the amendment depends—and that is that the basis of the scheme should be one that is prescribed by law and approved by Parliament and not one that is decreed by ministerial discretion. That is what the amendment is really about.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord who has just spoken for having put in one sentence my own fundamental objections to the proposal. I wish to make a brief comment atout the proposals outlined by my noble friend Lord Windlesham. I find them difficult to understand. As I understand it, my noble friend says that individual assessment is no longer possible, yet when he expounds the principles of his new proposals, I do not understand how they could ever be implemented without an individual assessment.
On the main point made by other noble Lords, I hope that when my noble friend the Minister replies he will consider four points in particular: the manifest injustice of the tariff scheme; its absence of any flexibility; the manifest abuse of Executive power which has ensued; and the fact that various justifications that have been advanced by the Home Office have been demonstrated to be manifestly misconceived. I hope that my noble friend may be able to. give us some constructive and helpful advice.
Earl Ferrers: We all have the greatest sympathy for all those who become the victims of terrible violence and crime. I sympathise as much as anyone with those who wish to ensure that the victims receive adequate compensation. The noble and learned Lord, Lord Ackner, made it clear that the purpose of his amendment is to reverse the introduction of the tariff scheme for criminal injuries compensation which was started on 1st April this year. His amendment aims to bring into force those provisions of the Criminal Justice Act 1988 which would place the criminal injuries compensation scheme on a statutory basis.

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Under the scheme that was set out in the Criminal Justice Act 1988, compensation would be assessed on the basis of common law damages and not on the basis of a tariff. To most intents and purposes, such a scheme would be the same as the non-statutory scheme which has been operating for the past 30 years or so. It would therefore continue to have what we see as all the disadvantages inherent in that scheme.
The provisions of the 1988 Act were not brought into force for two very good reasons. The first was that my noble friend Lord Carlisle, who was, and is, the chairman of the Criminal Injuries Compensation Board, requested a postponement so that the board could concentrate its efforts on dealing with the large backlog of unresolved cases. The second reason was that it became increasingly evident that the old scheme needed fundamental revision. I was grateful to my noble friend Lord Windlesham for saying that and for correctly addressing our minds to the fact that when something has been in operation for 30 years, it sometimes needs altering.
The noble and learned Lord, Lord Ackner, stated that the tariff scheme reflects the objections of the Government to the will of Parliament. He described its introduction as "elective dictatorship" and stated that it was an affront to parliamentary democracy. The noble Lord, Lord Lester of Herne Hill, stated that as the part of the 1988 Act which indicated the will of Parliament was not introduced it might as well have been written in water. The noble Lord, Lord Harris, stated that what the Government were doing was improper.
I can understand people holding those fairly strong views. However, it is right to point out that in our view what we did was not improper. The previous scheme was an executive scheme and began 30 years ago. It was run most effectively by the board, under the chairmanship of my noble friend Lord Carlisle. It was then decided to make the scheme statutory and that was why it was put in the Bill. However, for the reasons that I have given, it was also considered improper to bring it into a statutory state.
There is nothing improper in that because Section 171 of the Criminal Justice Act 1988 states:
"Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision".
Although the Act included those provisions, it was up to the Secretary of State of the day to introduce them by parliamentary provisions as deemed necessary. So there was nothing wrong with the fact that they were not introduced.
Perhaps I may remind Members of the Committee —and I do not know whether the noble and learned Lord, Lord Ackner, will remember—that every year prior to Easter I am asked why the provisions of the Easter Act 1929 have not been brought into effect. The fact is that they can be brought into effect by statutory instrument and for various good reasons they have not yet been brought into effect. I do not believe that there is anything wrong or improper in that. The old scheme was devised 30 years ago for a fraction of the number of
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applications which are at present received. It was a complex scheme and unwieldy to administer. Despite the best efforts of the board, which had worked hard to reduce the time taken to process applications—and I readily and gratefully acknowledge those efforts—long delays were, unhappily, still common. The scheme was no longer capable of providing the kind of service which victims of crime might nowadays reasonably expect. My noble friend Lord Windlesham acknowledged that and he made a thoughtful contribution to what is a difficult and sensitive subject.
The fact is that the costs of the scheme were escalating rapidly. The noble and learned Lord, Lord Ackner, and my noble friend Lord Carlisle said, "Now we know the real reason why the tariff scheme was introduced". There were two reasons, one of which was the escalating costs. I make no apology for that. Of course, governments must take into account the costs imposed upon the taxpayer.
In the first full year of the scheme, which was 1965–66, there were 2,500 claims and the amount of compensation paid was £400,000. My noble friend Lord Carlisle criticised my right honourable friend for saying that costs were spiralling out of control. What are the facts? By 1987–88, when the Criminal Justice Act 1988 was being considered by Parliament, there were not 2,500 applications but 43,000 and the compensation paid was not £400,000 but £52 million. Last year—just six years later—the number of applications had risen to 73,000 and the amount of compensation within the same six-year period had risen to £166 million. That is a threefold increase in six years. If we had not changed the scheme, at the turn of the century —which is only six years away—the actual cost of compensation was likely to have exceeded some £500 million. My noble friend Lord Carlisle says that he does not accept those figures. We must make projections—all government departments do. I can say only that those figures were arrived at after careful scrutiny. I remind the Committee that usually when government departments make projections they turn out to have erred on the side of underestimating and then the Government are cursed for that. They are now being faced with greater expenditure than they had anticipated.
Change was essential in order to control what were the spiralling costs of the old scheme, although my noble friend does not like me to say that. It was also desirable to provide a better service to those who made claims. We believe that the tariff scheme, which started on 1st April, will meet those needs and I do not believe that it would be right to return to the old scheme.
My noble friend Lord Carlisle said that there had been no consultation about the matter. However, governments must take decisions on principles. Once the decision was announced in November 1992, there was considerable discussion with the board and we had many helpful suggestions for the refinement of the scheme.
The noble and learned Lord, Lord Ackner, the noble Lord, Lord Lester, and my noble friend Lord Carlisle argued that in disregarding the provisions of the 1988 Act and bringing in a tariff scheme by executive action we were somehow behaving in an unlawful and

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unconstitutional manner. I have referred to that, and I say only that the Government's action was challenged by way of judicial review. In a judgment on 23rd May, the High Court ruled that the Government's action was not illegal and nor was it improper or irrational. The application was dismissed. An appeal has now been lodged but no date for the hearing has yet been fixed. Until the Court of Appeal has delivered a judgment, I do not believe that we can go much further on the question of the propriety of the Government's action.
However, I believe that it would be right for me to try to explain what we are trying to achieve with the tariff scheme and what we are not trying to achieve. The White Paper which we published on 15th December last year explained that there is no objectively "right" sum of money which can compensate an individual for the pain and the hurt which are suffered as the result of an injury. That is what the old scheme tried to do on a basis comparable to common law damages.
Under the tariff scheme we are no longer aiming to provide finely judged "compensation". Instead, we are providing a tangible and still very generous payment in recognition of society's concern for the blameless victims of violent crime. The tariff scheme has one substantial advantage. It is simple, easier for the victims to understand and less complex to administer.
The noble and learned Lord, Lord Ackner, and my noble friend Lord Carlisle say that it takes no account of the age, sex, occupation or way of life of an individual. That is perfectly true. All victims with similar injuries will be treated in the same way and victims will have a good idea in advance how much compensation they are likely to get. That was far from the case under the old scheme. The basic rales for eligibility have been left broadly as they were. Therefore, anyone who might have expected an award under the old scheme should be eligible under the new tariff scheme.
There is also a new appeals system which is demonstrably independent from those who are administering the scheme. My noble friend Lord Carlisle asserted that our costings were wrong but adduced no evidence. I can say only that our costings were based on trends during the past 10 years as regards new applications, the number of awards and the average awards. We believe that they are as accurate and defensible as it is possible to make them. My noble friend referred to the average awards, but I do not think that it is helpful to quote average awards for any one month. If we are to quote average awards we must do so over a whole year. The average award in 1987–88 was £3,486. It increased in 1992–93 to £4,297. Both those figures are at 1993–94 prices.
The tariff levels were based on nearly 20,000 recent awards which were made by the Criminal Injuries Compensation Board. They reflect what actually happened in practice under the old common law damages scheme, to which some Members of the Committee have indicated they would prefer to return. In our view, it would not be right to substitute someone's subjective view of what the tariff award should be for a particular injury for the more objective approach that we have adopted.
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We estimate that under the new scheme 60 per cent. of beneficiaries will get the same or more than they would have done under the old scheme; and they will get their money more quickly. We accept that some people will get less. But most awards are comparatively small. In 1992–93, 86 per cent. of awards were under £5,000. And in the last three years for which figures are available, only seven awards a year on average exceeded the tariff scheme's upper limit of £250,000.
We must remember, too, that the criminal injuries compensation scheme is not the only source of state aid for victims of crime, or, indeed, victims of other misfortune. Generous long-term help is available from the National Health Service and the Department of Social Security. Many claimants also benefit from occupational pension and sickness schemes.
It is right that the state should support victims of violence. But state support should reflect the deed which was done and not the loss of earnings or the employment which the person concerned had. The compensation available from the state for, for example, having your face slashed or your nose broken should be the same whether you are a dustman or, as my noble friend Lord Carlisle of Bucklow said, a glamorous model. If you are in the latter category and have high earnings as a consequence, you might reasonably be expected to insure against loss of earnings for damage to your person—from whatever the cause. It is not reasonable, I suggest, to expect the taxpayer to pay out a greater sum to a glamorous model, or, as the noble and learned Lord, Lord Ackner, said, an airline pilot, just because she is a glamorous model or he is an airline pilot than to the dustman who has incurred equal pain, sorrow and distress but who has not enjoyed the advantage of high earnings.
5.30 p.m.
Lord Carlisle of Bucklow: Will my noble friend not agree that the present scheme has a limit on earnings which is one and a half times the national average? Therefore, although the noble and learned Lord and I may have given examples of an airline pilot and a model, in fact the people who are earning about the national average, or up to one and a half times the national average, will lose out. People whose earnings are extremely high will be compensated only up to one and a half times the national average.
Earl Ferrers: I dare say, but that does not alter the point that, where one is" dealing with state compensation and the payment of taxpayers' money, that should be directed to the deed that has been done to the person as opposed to the occupation that he enjoys.
The noble Lord, Lord Harris of Greenwich, referred to police officers. Police officers injured on duty will receive the full benefits of sick pay, which is unlimited, and the benefits of a pension scheme which provides for disablement in addition to the tariff award.
The noble Lord, Lord Harris, referred also to savage cuts by the Government. I do not believe that that is either true or fair. Our compensation scheme is by far the most generous in the world. In the most recent years for which figures are available, France paid out

1847
£20 million, Germany paid out £6 million and Great Britain paid out £152 million in compensation. Of the total sum of money paid out by state compensation schemes to victims of crime throughout the world, France paid out 4½ per cent., Germany paid out 1½ per cent., and Great Britain paid out 35 per cent. of all the money paid out in the world. Even the United States of America, where the population is five times higher than ours, where the gross national product is many times higher, where the amount of violent crime is greatly in excess of ours and where about a million people are in prison, paid out only some £10 million in total more than we did.
Our tariff scheme will still be the most generous state compensation scheme anywhere in the world. By the year 2000, it is estimated that we shall be paying out a sum approaching £250 million a year. And between now and then —only six years away—we expect to pay out a total approaching £1,400 million. We pay out, in fact, far more compensation than all the other European countries added together. That cannot be represented as savage cuts.
To revert to the old scheme—which is what this new clause aims to bring about—is simply not a viable option. Its cost was soaring—and I make no apology for saying that the Government have to look at all costs which the taxpayer is obliged to pay—and it was not providing the sort of service which claimants should expect. The time had therefore come for change in the interests of claimant and taxpayer alike.
The noble Lord, Lord Irvine of Lairg, asked whether we would consider a common law basis for the worst cases. I do not believe that that would work because a hybrid scheme would retain the worst elements of common law damages—that is, loss of earnings—and would make for great complexities and delay. It is difficult to set a defensible limit at the extreme end of the scale. There would be great scope for judicial challenge in borderline cases.
We have of course studied very carefully what was said in your Lordships' House on 2nd March, but we think our new tariff scheme is the right way forward. However, as we have made clear on several previous occasions, we shall monitor very closely the way it works. The terms of the tariff scheme are not set in stone. We shall listen to the views of responsible people and practitioners and, if the scheme can be refined or improved in the light of experience, we shall not hesitate to make the necessary changes.
The noble and learned Lord, Lord Bridge, said that he thought it should be a statutory scheme. Once the new scheme has settled down, and once any necessary changes have been made, it will be our firm intention to put it on a statutory basis as soon as the opportunity occurs. But we must of course be satisfied that the scheme is working as effectively as possible first. That is why we could not use this Bill to make the tariff scheme statutory. It is simply too early for that.
For those reasons, I hope that the noble and learned Lord will realise why we have made the changes that we
1848
have. These are not savage cuts. A great deal of money is being paid out to those people who, very regrettably, are the victims of crimes of violence.
Lord Colnbrook: Before the debate draws to an end, perhaps I may make two brief comments on what the Minister said. I have not joined in the debate because both my noble friend and noble Lords generally know my views on this issue. I made them quite clear in the debate on 2nd March. I do not like the tariff scheme and I am unhappy that it is not to be on a statutory basis.
I must tell the Minister that, having listened to the whole debate and having heard what he said, I still do not like the tariff scheme. However, I understood him to say that the Government would be prepared to alter it if suggestions were made to them about it. Many persuasive suggestions have been made to the Minister this afternoon. I am sure that many more suggestions will be made and I assure him that I shall be one of those to make suggestions because I still do not believe that it is a good scheme. However, the Minister has moved that far and he has agreed that the scheme can and will be altered if it can be shown that that is necessary. Therefore, I must congratulate him on moving that inch or so towards meeting the objections that have been raised.
I still believe that it should be a statutory scheme. I am sorry that my noble friend did not feel able to say that he would seek a legislative opportunity to make it statutory. He merely said that it would become statutory if an opportunity arose. I hope that he will not wait for such an opportunity to arise but will look for it, because all noble Lords believe that the scheme should be statutory, as I do.
Therefore, I offer a small measure of congratulation on moving a little towards recognising that the scheme that has been proposed is not absolutely right. But I am less pleased about what he said with regard to making the scheme statutory.
I do not know whether the noble and learned Lord proposes to press the matter to a Division. In view of what was said, I shall not vote against the amendment but I do not believe that I can support it.
Earl Ferrers: My noble friend was good enough to say that I had moved an inch towards the accommodation which Members of the Committee seek. Perhaps I may congratulate him on congratulating me on an inch of approval which my noble friend apparently thinks I have given to the scheme.
I can quite understand that my noble friend prefers the previous scheme. Other noble Lords have expressed the same opinion. But for the reasons that I have given, we think that it is right that there should be a tariff scheme, and those reasons are wholly justifiable.
My noble friend wishes it to be a statutory scheme. One difficulty is that once it is put on a statutory basis it is set in stone. I said that we would be prepared—as, of course, we will be—to see how the scheme runs and, if it is possible to amend it and improve upon it, we shall be absolutely happy to consider so doing. If it is necessary to carry out such alterations, it would then be our intention to make it a statutory scheme.
Lord Lester of Herne Hill: I should be most grateful if the Minister could tell Members of the Committee whether he agrees that when Parliament enacted the 1988 Act and provided that the Secretary of State should bring that legislation into force on a day or days of his choosing Parliament must have intended that the Secretary of State would bring the Act into force on some day or days and not merely ignore the enactment of the statute and bring in a completely inconsistent scheme under the prerogative? Can the Minister also indicate whether he agrees that the European convention to which reference has been made requires that loss of earnings should be included in compensation for victims of violent crime? If that is right, how is it consistent with the tariff scheme?
Earl Ferrers: With regard to what Parliament considered at the time the legislation was being dealt with in 1988, I do not believe that it would be right for me to comment. The fact is that we have to do what the Act says. The Act says that the scheme shall only come into operation on a day appointed by the Minister. That does not mean to say that the Minister has to appoint the day; indeed, I gave the Easter Act as just one example. The provision is there but the introduction is a matter for the Secretary of State of the day. As regards the European convention, we have no reason to believe that our tariff scheme contravenes such conventions in any way.
Lord Ackner: I have two quite separate points to make. The first relates to the criticism of the common law basis for the assessment of damages. I can well understand criticism being made as to how one evaluates the pain and suffering and the loss of amenities. However, that has not been the subject matter of criticism. What has been criticised—as, indeed, it has been by the noble Lord, Lord Windlesham, and which I find so difficult to follow—is the award of a figure for loss of earning, for the expense of medical matters and the like.
The whole purpose of the civil remedy for compensation is, as far as possible in financial terms, to put the victim back into a pre-accident state. One does that so far as concerns loss of wages by taking his annual figure and giving it the appropriate year's purchase based upon his expectation of working life—that may be, 12 or 15 years. One puts him back into the position in which he was previously by reimbursing him the cost of medical expenses past or future. One puts him back into the state in which he was previously by indemnifying him against the cost of having to alter his house or home. All of that is perfectly simple, straightforward and, I should have thought, wholly intelligible to the man in the street.
My second and entirely different point is that the Minister has totally failed to deal with a very serious constitutional point raised by the debate. Why did the Government ignore Parliament, some may say almost contemptuously, by refusing the opportunity given by the Bill to seek to amend the 1988 Act by modifying as they saw fit the provisions of the scheme provided for in detail by that legislation? I submit that the answer to the question is simple and twofold. First, the Government
1850
fully appreciated that the gross unfairness and impracticability of their proposed tariff scheme would have been unacceptable to Parliament. Secondly—and this is far more disturbing —by putting even a modified scheme on a statutory basis, it gives control of that scheme to Parliament where it should be and takes it away from the Minister who, as Members of the Committee have now seen, considers that he can do anything he likes without consulting Parliament.
Once more, this is a debate as to where power should reside. Should it reside with the legislature or with the Executive? It is as simple as that. Those of us who believe passionately in parliamentary democracy will, I believe, wish to support the amendment. Therefore, I press my amendment with enthusiasm.
5.45 p.m.
On Question, Whether the said amendment (No. 154CA) shall be agreed to?
Their Lordships divided: Contents, 131; Not-Contents, 113.

Division No 1

CONTENTS

Ackner, L. [Teller.]

Harris of Greenwich, L.

Addington, L.

Healey, L.

Airedale, L.

Hollis of Heigham, B.

Aldington, L.

Hooson, L.

Annan, L.

Howell, L.

Ardwick, L.

Howie of Troon, L.

Bancroft, L.

Hughes, L.

Barnett, L.

Hylton-Foster, B.

Bath, M.

Iddesleigh, E.

Beloff, L.

Ilchester, E.

Benson, L.

Irvine of Lairg, L.

Bonham-Carter, L.

Jacques, L.

Boston of Faversham, L.

Jakobovits, L.

Brain, L.

Jay of Paddington, B.

Bridge of Harwich, L.

Jay, L.

Brightman, L.

Jeger, B.

Brimelow, L.

Jenkins of Putney, L

Broadbridge, L.

Judd, L.

Browne-Wilkinson, L.

Kagan, L.

Campbell of Alloway, L.

Kintore, E.

Campbell of Eskan, L.

Lawrence, L.

Carlisle of Bucklow, L.

Lester of Herne Hill, L. [Teller.]

Carmichael of Kelvingrove, L.

Liverpool, E.

Chichester, Bp.

Llewelyn-Davies of Hastoe, B.

Clinton-Davis, L.

Lockwood, B.

Craigavon, V.

Longford, E.

Dahrendorf, L.

Lovell-Davis, L.

Dainton, L.

Mallalieu, B.

Darcy (de Knayth), B.

Masham of Ilton, B.

David, B.

Mayhew, L.

Dean of Beswick, L.

McIntosh of Haringey, L.

Desai, L.

Merlyn-Rees, L.

Diamond, L.

Mersey, V.

Donaldson of Kingsbridge, L.

Molloy, L.

Dormand of Easington, L.

Monkswell, L.

Dundonald, E.

Monson, L.

Eatwell, L.

Morris of Castle Morris, L.

Elis-Thomas, L.

Napier and Ettrick, L.

Ennals, L.

Nathan, L.

Falkland, V.

Nelson, E.

Fisher of Rednal, B.

Nicol, B.

Foot, L.

Ogmore, L.

Gainsborough, E.

Oliver of Aylmerton, L.

Gallacher, L.

Peston, L.

Gilmour of Craigmillar, L.

Pitt of Hampstead, L.

Gladwyn, L.

Prys-Davies, L.

Gould of Potternewton, B.

Rea, L.

Graham of Edmonton, L.

Redesdale, L.

Halsbury, E.

Rees-Mogg, L.

Hamwee, B.

Richard, L.

Hanworth, V.

Rochester, L.

Rodgers of Quarry Bank, L.

Templeman, L.

Russell, E.

Thurlow, L.

Ryder of Warsaw, B.

Tordoff, L.

Seear, B.

Turner of Camden, B.

Sefton of Garston, L.

Warnock, B.

Shannon, E.

Weatherill, L.

Shepherd, L.

Wharton, B.

Simon of Glaisdale, L.

White, B.

Slynn of Hadley, L.

Wigoder, L.

St. John of Bletso, L.

Wilberforce, L.

Stedman, B.

Williams of Elvel, L.

Stoddart of Swindon, L.

Williams of Mostyn, L.

Strabolgi, L.

Wilson of Tillyorn, L.

Strafford, E.

Woolf, L.

Taylor of Blackburn, L.

NOT-CONTENTS

Abinger, L.

Long, V.

Addison, V.

Lothian, M.

Ailesbury, M.

Lucas,L.

Annaly, L.

Lyell, L.

Arran, E.

Mackay of Clashfern, L. [Lord

Astor of Hever, L.

Chancellor.]

Astor, V.

Macleod of Borve, B.

Balfour, E.

Mancroft, L.

Bauer, L.

Marlesford, L.

Belhaven and Stenton, L.

McColl of Dulwich, L.

Birdwood, L.

Melville, V.

Blatch, B.

Merrivale, L.

Blyth, L.

Milverton, L.

Boardman, L.

Montgomery of Alamein, V.

Brabazon of Tara, L.

Mottistone, L.

Butterworth, L.

Mountevans, L.

Cadman, L.

Mowbray and Stourton, L.

Campbell of Croy, L.

Moyne, L.

Camegy of Lour, B.

Munster, E.

Carnock, L.

Murton of Lindisfarne, L.

Chalker of Wallasey, B.

Newall, L.

Chelmsford, V.

Norfolk, D.

Clanwilliam, E.

Northesk, E.

Colwyn, L.

Oppenheim-Barnes, B.

Cork and Orrery, E.

Orkney, E.

Courtown, E.

Orr-Ewing, L.

Craigmyle, L.

Oxfuird, V.

Cranborne, V.

Prentice, L.

Crickhowell, L.

Prior, L.

Cumberlege, B.

Rankeillour, L.

De L'lsle, V.

Reay, L.

Dean of Harptree, L.

Renfrew of Kaimsthorn, L.

Denton of Wakefield, B.

Rodger of Earlsferry, L.

Dixon-Smith, L.

Salisbury, M.

Downshire, M.

Saltoun of Abemethy, Ly.

Dudley, E.

Seccombe, B.

Eden of Winton, L.

Sharpies, B.

Ellenborough, L.

Soulsby of Swaffham Prior, L.

Elliott of Morpeth, L.

St. Davids, V.

Erne, E.

Strathcarron, L.

Ferrers, E.

Strathclyde, L.

Flather, B.

Strathmore and Kinghome, E.

Fraser of Carmyllie, L.

[Teller.]

Gisborough, L.

Sudely, L.

Goschen, V.

Swinfen, L.

Hailsham of Saint Marylebone, L.

Teynham, L.

Hanson, L.

Thomas of Gwydir, L.

Harrowby, E.

Torrington, V.

Henley, L.

Trumpington, B.

HolmPatrick, L.

Tugendhat, L.

Hooper, B.

Ullswater, V. [Teller.]

Howe, E.

Vaux of Harrowden, L.

Kitchener, E.

Vivian, L.

Knutsford, V.

Wakeham, L. [Lord Privy Seal.]

Lane of Horsell, L.

Walton of Detchant, L.

Lauderdale, E.

Wise, L.

Leigh, L.

Wynford, L.

Lindsey and Abingdon, E.

On Question, amendment agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
5.54 p.m.
Clause 134 [Powers to test prisoners for drugs]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 154D:
Page 108, line 8, after second ("authorisation") insert ("obtained from the court upon cause shown").
The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 154E. Amendment No. 154D would impose an obligation on prison governors to obtain court sanction for carrying out testing of prisoners for drugs. The Bill allows prisoners to be tested for drugs by amending the powers of governors under the Prison Act 1952. There is no requirement under the Bill for any independent assessment of the need for any such testing and this amendment ensures that the governor can authorise testing if court authority is sought and obtained.
Amendment No. 154E deals with roughly the same point. As regards the question of authorisation, the amendment proposes imposing an obligation on prison governors to obtain court sanction for carrying out tests for drugs. The Bill allows the prisoners therefore to be tested for drugs by amending the powers of the governors under the Prisons (Scotland) Act 1989. Again, there is no requirement under the Bill for any independent assessment of the need for such testing, but this amendment ensures that the governor can authorise testing if authority is obtained from a court. I beg to move.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): As the noble Lord will appreciate, drugs are a serious problem not only throughout our society but also in our prisons. We are introducing these measures which will permit drug testing because we believe this will act as an important deterrent and a powerful signal that drug misuse in prisons is completely unacceptable. Prisoners who test positive for drugs will be subject to disciplinary proceedings.
The prison services are responsible for managing prisons. Powers are given to prison governors to allow them to do this as effectively and efficiently as possible. In carrying out their duties governors do not need to seek authorisation from the courts for other activities —not even those which might appear, on any ordinary test, to affect both the dignity and the privacy of prisoners, such as strip searching. I think it is generally accepted that such powers are necessary to maintain proper security and control.
I see no reason why authorising prison officers to require urine specimens for drug testing should be treated any differently. The Government will, of course, take into account their responsibility under the European Convention on Human Rights when establishing policy under the testing powers.
Lord Carmichael of Kelvingrove: I thank the Minister for that reply. I believe that what he said in the latter part of his reply provides me with the opportunity to withdraw the amendment, although I will of course read carefully what he said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154E not moved.]

1853
Clause 134 agreed to.
Clause 135 [Powers to search by authorised employees in prisons]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 154F:
Page 109, leave out line 6.
The noble Lord said: In moving Amendment No. 154F I wish to speak also to Amendment No. 154G. These are really probing amendments because it seems to us that there is a potential contradiction in the Government's proposals where there are non-prison officers—in other words, civilians —acting in prisons. One of the particular problems is the use of reasonable force in searching prisoners. As has been confirmed, prison officers are also constables and they have the powers of the constable. Therefore, they have necessarily the power to search using reasonable force. However, civilians are not constables and it is not proposed that they should be constables, and they will have to be asked to carry out searches. If they are asked to search, as part of their duties, if the search is to be effective they will also have to be asked to use reasonable force. It could be argued that they stand in some risk. For example, they could be taken to court for assault if the reasonable force tips over the borderline between reasonable and unreasonable. Who knows exactly what the borderline will be in any particular case? Who knows what happens if a prisoner refuses to be searched? A complication with the Bill as drafted is that civilians, not being constables, retain the right to strike. It is conceivable that they could do so in order to avoid that risk, which I have identified, of being taken to court for assault.
We are concerned that the use of civilian staff instead of prison officers who are constables should not be used as an excuse for low staffing in prisons. An escape from Dartmoor prison last month highlighted the lack of staff on duty in prison workshops. Where there were once prison officers on duty in the workshops now those on duty are civilians rather than prison officers. If the clause had been in place at the time it would not have stopped the escape. Only officers overseeing the workshop would have done so.
I suggest that the Government are in a difficulty. I hope that they will respond positively, at least to the thinking behind these simple amendments. I beg to move.
6 p.m.
Lord Fraser of Carmyllie: Perhaps I may begin by saying to the noble Lord that while, of course, he is correct in saying that on this side of the Border a prison officer has the powers of a constable, in Scotland he does not have the same powers. That forms part of the provisions in a later clause. It does not bear directly on this provision, but I thought I had better make that point clear.
As the noble Lord explained, the purpose of the clause is to give "authorised employees" in prisons (not only in England and Wales but also in Scotland) limited powers to search prisoners. The amendments would
1854
remove the provisions which provide that reasonable force may be used by authorised employees when searching prisoners.
Clause 135 enables governors to authorise some non-prison officer grades to conduct "rub-down" searches for unauthorised items. In our view it would be useful for certain grades of civilian staff who regularly supervise activities involving prisoners—for example, when prisoners are leaving a kitchen party or workshop and are given a pat-down or rub-down search to check that they have not concealed any knives from where they have been which might subsequently be used as weapons. In those circumstances, I should have thought that there was good reason to do that rather than allow a prisoner to move out of that particular area and to be searched by a prison officer later. To do it immediately would be good sense.
It is certainly not envisaged that civilian staff would be used to search prisoners who would be likely to create difficulties or that they would be required to search forcibly a prisoner who resisted. If that happened they would be advised to call on prison officers to carry out any such search.
The provisions allowing the use of reasonable force are viewed as a sensible protection for staff. They would protect those carrying out searches under this power against allegations of mistreatment arising from normal searching procedures.
The provisions on reasonable force are a necessary part of the clause. I hope that the noble Lord will realise that without it the sort of difficulties which he envisaged might arise in courts would be all the greater if the provision were not included.
Lord McIntosh of Haringey: I still see a contradiction in the Government's point of view. They argue on the one hand that authorised civilian employees will not be called upon to search prisoners in conditions where they might resist and therefore force may be required, and at the same time they say that it is a reasonable precaution that they should be authorized to use force regardless.
Lord Harris of Greenwich: How could they possibly make such a judgment as to when they should intervene in this way and when they should not? It seems quite extraordinary.
Lord McIntosh of Haringey: I am grateful to the noble Lord for anticipating my next sentence. I do not believe that one can tell in advance.
This is not a matter on which I seek to divide the Committee. I shall read carefully what the Minister said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154G not moved.]
Clause 135 agreed to.
Clause 136 [Prohibited articles in Scottish prisons]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendments Nos. 154H and 154J:
Page 110, line 21, leave out ("in relation to which he has committed or is committing an offence under") and insert ("to which").

1855
Page 110, line 23, after ("1993") insert ("applies").
The noble Lord said: Perhaps it will be for the convenience of the Committee if I speak to Amendments Nos. 154H to 154P collectively and also to Amendment No. 154Q.
Amendment No. 154H leaves out the offence requirement provisions of the Carrying of Knives etc. (Scotland) Act 1993. As the Committee will know, that Act provides that it shall be a criminal offence to carry or have in one's possession knives and other blades with a length of more than 3 inches. The Bill creates an offence of introducing an article which is contrary to the Carrying of Knives etc. (Scotland) Act 1993 into prison. In our view there is no defence outwith the reasonable excuse of the provisions of Clause 136 for introducing such an article into a prison. Amendment No. 154J is a consequential amendment.
Amendment No. 154K is necessary because, on occasion, a child will instruct a solicitor in respect of his business and as this relates to the alleged commission of a serious offence it is important that the child is fully and independently advised as to his rights and responsibilities.
Amendment No. 154L is a consequential amendment. Amendment No. 154M ensures that the child's solicitor shall have access to the child who has been detained under Clause 136(3).
The provisions in respect of parents who may have been involved in the offence under Clause 136(3) do not apply to solicitors. Accordingly, it is appropriate that such a provision allows a solicitor access to the child in the event of detention under Clause 136(3).
Amendment No. 154N clarifies the persons who may be informed of the child's detention under Clause 136(8). Amendment No. 154P ensures that not only those who have physical possession of the child are entitled to knowledge of the detention. I beg to move.
Lord Fraser of Carmyllie: I am grateful to the noble Lord for putting forward Amendments Nos. 154H and 154J. These amendments will indeed make the provision easier to apply in providing for consistency of treatment under the proposed Section 41(1) of articles to which Section 1 of the Carrying of Knives etc. (Scotland) Act 1993 applies. It would be my advice to the Committee that Amendments Nos. 154H and 154J should be accepted.
Turning to Amendment No. 154K, the provision in Clause 136 with regard to children reflects the safeguards to be found in Section 3 of the Criminal Justice (Scotland) Act 1980 in respect of temporary detention there by the police. The intention is to ensure that the legal guardian of the child is informed without delay of the child's temporary detention. It must then be for the parent or guardian—not the prison authorities —to inform whosoever he or she pleases, possibly a solicitor.
As regards Amendments Nos. 154L and 154M, the provision for access to the child is solely to provide the child with company in a strange environment. If the
1856
police decide to arrest the child then the child will have the same rights to have a solicitor present as any other arrested person would have in similar circumstances.
Turning to Amendments Nos. 154N and 154P, following the Age of Legal Capacity (Scotland) Act 1991, there are only two kinds of "curator" known to Scots law. A "curator ad litem" is a person appointed solely for the purpose of instructing the conduct of actions raised by, or defences to actions raised against a child. A "curator bonis" is a person appointed, essentially, to administer the property of a child, while a "safeguarder" is a person appointed in our children's hearing system to provide separate representation for the child at that hearing in the unusual circumstances of a conflict of interest having arisen between that child and his parents. The extent to which those persons can act as an agent for the child is limited. I see no need, or advantage, in seeking to inform such a person. It seems to me that the clause as drafted is sufficiently wide to ensure that the appropriate person is informed.
Nor is Amendment No. 154Q appropriate. It is the parent or guardian of the child who should be informed. They have the legal responsibility for the child. The person nominated by the child might not.
I have indicated my view on the first two amendments. I hope that the noble Lord will withdraw his other amendments.
Lord Carmichael of Kelvingrove: I am most grateful to the Minister for accepting those amendments. In the plethora of reading, I was not exactly sure which amendments he accepted.
Lord Fraser of Carmyllie: Amendments Nos. 154H and 154J.
On Question, amendments agreed to.
[Amendments Nos. 154K to 154P not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154PA:
Page 112, line 28, leave out ("child") and insert ("person under 16 years of age").
The noble and learned Lord said: This is a technical amendment. I beg to move.
[Amendment No. 154Q not moved.]
Clause 136, as amended, agreed to.
[Amendment No. 155 had been withdrawn from the Marshalled List.]
6.15 p.m.
The Earl of Longford The Earl of Longford moved Amendment No. 156:
After Clause 136, insert the following new clause:
("Duty to provide resettlement assistance to released prisoners
—

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

(a) accommodation; and

(b) employment.").

The noble Earl said: The amendment has the effect of placing a statutory responsibility on the Government to provide assistance with housing and employment, in particular, for all those who leave prison. I shall speak briefly on the subject if only because I introduced a debate on 18th May and noble Lords may read what I said on that occasion.
Perhaps I may venture to repeat one point that I made at the beginning of that debate. I do not believe that anyone will seriously argue that the prospects today for prisoners who leave prison are any better than when I, with the help of others, founded the New Bridge for Ex-Prisoners nearly 40 years ago. On the one hand, a great deal has been done by voluntary bodies, to whom all honour; and the Government have done not a little. On the other hand, there has been a great increase in unemployment since those days and the prison population is much larger. On the whole, if one left prison today the prospect would be no better than it was 40 years ago.
At the end of the debate on 18th May I submitted three propositions. I shall refer to only one. I urge the Government to provide more generous assistance to the voluntary bodies and to multiply the number of excellent resettlement provisions that they have begun to establish. That brings me to the subject that I put forward today. I urge the Government to accept statutory responsibility for helping all those who leave prison to find jobs, and accommodation in particular
At present, under the 1991 Act there is a statutory responsibility on the probation service for supervising all those who have served more than one year in prison and have been sentenced since the autumn of 1992. My proposal extends that responsibility in more ways than one. On the one hand, I should like responsibility extended to all prisoners whenever sentenced and whatever the length of sentence. On the other hand, I admit that it should no longer be a supervising responsibility—a rather negative role—but a respon-sibility actively to help those prisoners find jobs and accommodation. It is a straightforward case. On the last occasion the Minister showed a good deal of sympathy for what I said. I accused him of painting a rather ideal picture, but that was better than painting no picture.
I make no secret of one factor. My proposal is bound to mean an increase of resources; not on a vast scale, but in numbers of probation officers. They are already extremely hard-worked people and this proposal adds to their duties. That means an increase in the government resources devoted to the probation service. I refer to the probation service in relation to its assistance to prisoners. Those resources at present are not large. The Government spend £40 million in helping the probation service to look after prisoners from a total of £1,400 million on the prison service. That sum could be greatly increased—I do not speculate on the figure—without breaking the Bank of England.
That is my case. I hope that the noble and learned Lord will show sympathy for it. I recognise that I am asking for an increase in resources and I do not expect it tonight. I do not expect him suddenly to say, "Yes, there is some money available that we had not thought
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of before". However, I expect him to say that it is a desirable target and an objective which the Government share in principle.
If the Minister cannot go quite so far as that, perhaps he will tell us what guidelines are being issued to the probation service with regard to helping, not simply supervising, prisoners. On the last occasion he indicated that there were such guidelines. I am informed by the Home Office that there are helpful guidelines. May we at least be told that? Perhaps he will go further and express general sympathy for the objective that I have stated. I beg to move.
Baroness Seear: I strongly support the amendment. Indeed, I go a little further than the noble Earl. We all welcome the fact that the Home Office has issued guidelines to the probation service to put much greater emphasis on the employment of ex-offenders. The amendment proposes that help should be given to prisoners when they come out of prison. However, it would greatly strengthen the position if more care were to be taken to prepare people while they are in prison for obtaining a job when they are released. The probation service has made it quite clear that the chance of recidivism greatly recedes when an ex-prisoner can obtain a job.
It would be useful for the Government to consider what has become common practice in Germany. From the very beginning of a sentence the question of training for subsequent employment is taken on board and is ranked high in the planning of the sentence so that training can be given in prison to enable the ex-prisoner to obtain a job. The fact is, as the recidivism figures show, that if a man or a woman —fortunately perhaps there are far fewer women involved—has little skill, even with no criminal record it is extremely difficult to obtain a job. If a man has little skill, poor education —those factors apply to a great many prisoners—and a criminal record into the bargain then (as I once dared to say to a meeting of the Metropolitan Police) in his own interests he had better settle for burglary as a career because he has no chance of earning a living in any other way.
The amendment puts great emphasis on the enormous importance of providing relevant—that is the important word—training in prison. The one thing that prisoners have to an unlimited extent is time. Surely we can use that time to train prisoners, and do so for relatively little expenditure compared to the cost of keeping them in prison and returning them to prison, which is so common. Training prisoners with an eye to the jobs that they can obtain after prison involves collaboration with employers. An increasing number of employers are prepared to give that collaboration if the prison service will provide the resources for relevant training—I stress relevant training—while people are in prison.
Lord McIntosh of Haringey: I wish to support my noble friend and the valuable points made by the noble Baroness, Lady Seear. I am sure she is right. It is what is done in prison rather than after release from prison that will be effective in ensuring that ex-prisoners find suitable employment.

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I disagree slightly with my noble friend when he says that it will cost more money. Of course, in the short term it will do so in the sense that the modest £40 million budget of the probation service in dealing with prisoners will immediately require an increase. But in the longer term, surely, bearing in mind the much larger cost of the prison service as a whole, the amendment will stop prisoners going back into prison. That is the really important point. There are far too many cases of people coming out of prison and finding themselves without either a job or somewhere to live or both and virtually going straight back into prison in order to find something to do and somewhere to live. Even in the most modest, minimal sense, it may well be that the provision of resettlement advice for which my noble friend asks will save money rather than cost money.
Lord Fraser of Carmyllie: I am grateful to the noble Baroness, Lady Seear, and to noble Lords who have contributed to this short debate. As the noble Earl indicated, we had an interesting debate last month on just this subject. From that debate it was clear that while there may be differences of emphasis, there is a clear appreciation that it is part of the system for which there should be real anxiety.
Supervision in the community following release from custody has three main objectives: it is intended to protect the public, to prevent re-offending and to help offenders to resettle successfully in the community. Effective supervision challenges offenders to accept responsibility for their crimes and seeks to gain their co-operation in avoiding offending in the future and becoming responsible members of the community.
Effective supervision also helps offenders to resolve personal difficulties linked with offending and to acquire new skills. It follows that the focus of supervision is then primarily on tackling offending behaviour. Intervening to address practical difficulties, including accommodation and employment, forms an integral part of that supervision. However, the point I wish to make to the Committee is that it is just one of the many elements that combine to form supervision.
Offenders are individuals. Some may require assistance and advice in order to secure accommodation or employment where others may not. Some may need, for example, to attend a treatment programme in order to tackle offending behaviour; others may not. To be effective, therefore, a programme of supervision must be adapted carefully to the individual circumstances of the particular offender. It should also take into account and, indeed, build on the work carried out with that individual offender during his time in custody. I wholly share the objective that the noble Baroness, Lady Seear, sought to impress upon us.
To accept the amendment would, in our view, place undue emphasis on what is just one part of the overall picture. It would shift the focus of supervision away from tackling offending behaviour and it could even hinder the supervising officer in determining, within the framework of national standards for the probation service in England and Wales, the most effective programme of supervision for the individual offender.
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The proposed amendment extends to offenders sentenced to less than 12 months' custody. As the noble Earl will appreciate, such offenders are released unconditionally at the halfway point of sentence. They are not subject to licence or statutory supervision and no form of assistance or advice can therefore be imposed on them. Having said that, the probation rules in England and Wales make it a duty of a probation officer to advise, assist and befriend any offender who is released from custody other than on licence who is willing to be assisted. Provision already exists therefore for offenders in this category to receive supervision on a voluntary basis. In practice, voluntary supervision often means advice and assistance, again with practical difficulties, including accommodation and employment. So I say to the noble Earl that the amendment would serve no useful purpose other than to duplicate existing arrangements.
While being unable to accept the amendment, the Government recognise that securing employment and accommodation can be very important factors in helping an offender to establish a settled and law-abiding lifestyle. Those issues are being actively addressed by both the prison and the probation services during the custodial and the community parts of the sentence.
It would take time to elaborate and we have been over some of the detail in the previous debate, but I do not consider that there is any real difference between us other than that, although we share the objective, I would not wish to give an undue emphasis when the individual circumstances of an offender might require a different emphasis to be given.
Lord Harris of Greenwich: I am rather disappointed by that reply. The noble and learned Lord said that he was not in favour of the amendment because it would give undue emphasis to the two factors spelt out in the amendment. However, that is a wholly bogus argument. As chairman of the Parole Board, I found that when looking at cases my colleagues and I examined those two specific issues because they were absolutely critical in determining whether a person was likely to return to custody at some stage in the future. If there were unsatisfactory accommodation arrangements, the likeli-hood of re-offending increased substantially. The same was true as regards employment.
The real reason why the noble and learned Lord does not want to accept the amendment has nothing to do with the argument he put forward this afternoon. The real argument is about resources. I recognise that this is a difficult matter for the Government. Like previous governments, they have undoubtedly increased resources available to the probation service by a significant degree. They are also increasing expenditure on prison accommodation at a far more rapid rate because of the great increase in the prison population due to the "prison works" philosophy of the present Home Secretary.
It seems to me that it is ill-judged to attempt to resist an amendment of this kind which could have the effect of limiting the likelihood of people getting into trouble with the police after their return from prison. I find it depressing because it seems to me that for a relatively modest increase in resources—and there would be

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additional expenditure—one could limit the remorseless increase in the prison population. On Monday this week the noble Earl, Lord Ferrers, at col. WA 83 of Hansard, gave a Written Answer to a Question which I put about the pressure on local prisons. The Answer showed that in the overwhelming majority of local prisons, where short-term prisoners tend to congregate, there is massive overcrowding. Month after month, those figures increase. Here is an opportunity for lessening pressure to some degree on local prisons. Yet the Government resist an amendment which might have a significant effect on some prison service establishments. I find that depressing because we are confronted with a most alarming increase in the prison population in local prisons. We still have a substantial number of prisoners in police cells and yet here is an amendment which could have a useful effect in terms of limiting the likelihood of re-offending by short-term prisoners. But the Government resist it. That is a pity.
The Earl of Longford: I am very grateful to my noble friend the acting Leader, to the noble Baroness, Lady Seear, and to the noble Lord, Lord Harris, for their support of this amendment. I entirely accept the correction that was offered by the noble Lord, Lord McIntosh, and the supplements that were provided by the noble Baroness, Lady Seear, and the noble Lord, Lord Harris.
I shall speak very briefly. I am rather conscious of the fact that I made many of the important points on the last occasion. But I am bound to say that I was astonished at the reply that was given by the noble and learned Lord. I accused him on the last occasion of painting an unreal picture. I certainly do so now. For some years I have visited prisons, on average one a week. What the noble and learned Lord told us is unrecognisable in relation to the situation of those who leave prison today. Anyone who visits prisons knows that perfectly well.
In the circumstances I should like to discuss with the noble Lord, Lord McIntosh, the noble Baroness, Lady Seear, and the noble Lord, Lord Harris, how we should proceed at the next stage, but at the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness David Baroness David moved Amendment No. 156A:
After Clause 136, insert the following new clause:
("Powers of Criminal Courts Act 1973
.—(1) Schedule 1A to the Powers of Criminal Courts Act 1973 shall be amended as follows.
(2) In paragraph 5(2) after the words "medical practitioner" there shall be inserted the words "or a clinical psychologist".
(3) In paragraph 5(3) (c) after the words "medical practitioner" there shall be inserted the words "or such clinical psychologist".
(4) In paragraph 5(6) after the words "medical practitioner", in the first place where they occur there shall be inserted the words"or clinical psychologist", and in the second place where they
occur there shall be inserted the words "or a clinical psychologist".
(5) In paragraph 8(a) after the words "medical practitioner" there shall be inserted the words "or clinical psychologist".").
The noble Baroness said: This is a new clause to allow conditions of treatment for a mental condition in a probation order to be carried out by a clinical psychologist.
This issue has been raised with the All-Party Penal Affairs Group by the North West Thames forensic psychiatry service, which has pointed out that the present law appears to restrict such treatment conditions to treatment carried out by or under the discretion of a duly qualified medical practitioner. However, multi-disciplinary treatment in psychiatric services has ensured that clinical psychologists have developed expertise in providing treatment to offender-patients, and in some cases that is the most appropriate form of treatment.
A note provided to the group by the chief psychologist for the North West Thames forensic psychiatry service states:
'The problem behaviours for which psychological help is particularly applicable are aggressive behaviour, anger control problems and sexual deviancy, which invariably means treatment for associated psychological states, namely anxiety, depression, inter-personal skills deficits, bereavement problems, neurotic and personality disorders. A considerable number of cases are offenders who have themselves been victims of physical and sexual abuse. A psychological approach is particularly appropriate for persistent offending not apparently motivated by gain, for example for shoplifting, talcing and driving away, gambling and arson.
Psychological treatment may be carried out in a number of ways. The offender may be seen by the psychologist individually or together with his/her partner or family members or it may be appropriate for the offender to be seen as a member of a group of offenders. The length of time over which treatment may be provided and the frequency of treatment are also likely to be variable. Some treatments can be delivered intensively over a brief period, others require a regular contact over an extended period while still others may involve a number of episodes of intensive treatment interspersed with breaks in treatment. These variables … may result in complex treatment programmes, in which eg a period of individual treatment might be followed by a period of group treatment while occasional family meetings continue throughout".
Courts sometimes use the provisions for making requirements as to activities to get round this problem by, for example, requiring a sex offender to present himself "to Miss X at hospital Y for 100 days". However, this is a clumsy way of approaching the issue because it removes clinical responsibility for the appropriate frequency and duration of contact, which may as time goes on turn out to be more or less than 100 days.
The better solution would therefore be to give courts the power in appropriate circumstances to make treatment conditions to a clinical psychologist on the same basis as to a psychiatrist; and this is what the new clause provides. This amendment is very uncontroversial. I hope that it is helpful and that it can be accepted quite quickly. I beg to move.
Earl Ferrers: Paragraph 5 of Schedule 1A to the Criminal Justice Act 1991 provides the courts with the power to attach to a probation order, as an additional requirement, that the offender should undergo treatment for a mental condition.
The Act also specifies that, under those circumstances, the treatment should be by or under the direction of a duly qualified medical practitioner who, under Section 12 of the Mental Health Act 1983, is one who has been approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.

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The purpose of the noble Baroness's amendment, as she explained, is to provide the courts with the additional option of a clinical psychologist—that is, a person who is listed on the charter of the Royal College of Psychologists—to oversee or to carry out the treatment.
The amendment would have the effect of clarifying the practice of what is, in fact, already being done. Clinical psychologists already regularly take on the responsibility for the supervision of offenders who are on probation and who are required to undergo treatment for a mental condition and this practice is considered by the Department of Health to be quite effective in treating their offending behaviour.
I recognise the helpful intention which lies behind the noble Baroness's amendment. There is undoubtedly some force to the arguments which she has adduced in support of it. The amendment, as it is, though, would not be acceptable, for technical reasons. What I should like to do, if I may, is to give some consideration to what the noble Baroness has suggested. If she would be kind enough to withdraw he amendment, I should like to reflect on the full implications of what she seeks to do. If after such reflection we conclude that it would be right to amend the 1973 Act, I should like to consider— without commitment—the possibility of bringing forward an amendment at a later stage of the Bill.
Baroness David: I thank the Minister very much for that helpful reply. With the promise that it will be looked at and considered, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 156B:
After Clause 136, insert the following new clause:
("Harassment, alarm or distress
Offence of causing intentional harassment, alarm or distress In Pan I of the Public Order Act 1986 (offences relating to public order), after section 4, there shall be inserted the following section—
"Intentional harassment, alarm or distress.
4A.—(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words orbehaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visiblerepresentation which is threatening, abusive orinsulting,

thereby causing that or another person harassment, alarm or distress.

(2) An offence under this section may be committed ina public or a private place, except that no offence iscommitted where the words or behaviour are used, or thewriting, sign or other visible representation is displayed, bya person inside a dwelling and the person who is harassed,alarmed or distressed is also inside that or another dwelling.
(3) It is a defence for the accused to prove—

(a) that he was inside a dwelling and had no reason tobelieve that the words or behaviour used, or thewriting, sign or other visible representationdisplayed, would be heard or seen by a personoutside that or any other dwelling, or

(b) that his conduct was reasonable.

(4) A constable may arrest without warrant anyone hereasonably suspects is committing an offence under this section.
(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.".").
The noble Earl said: The purpose of this amendment is to provide higher penalties for those whose language or behaviour deliberately harasses, alarms or distresses another person. This new clause fulfils a commitment that was given by the Government at an earlier stage of the Bill when it was in another place. We indicated that we wanted to bring forward a provision that would enable the courts to deal more effectively with serious racial harassment, particularly where it is persistent. I must apologise to the Committee for having been unable to table the amendment sooner, but it has proved particularly difficult to draft a measure which does not create anomalies but which is nevertheless effective.
Although we set out to address the problems of racial harassment, race is not mentioned in the clause. To have done so would have meant that prosecutors were faced with proving not only the fact of the offence but also that it was racially motivated. Proving motivation beyond reasonable doubt is particularly difficult. We would not want someone to escape the higher penalties which are provided by this new offence simply because it was difficult to prove the motivation, even where his actions were unpleasant and deliberate. The new offence will therefore apply equally to harassment on other grounds, such as being offensive, for instance, to people who are in wheelchairs or who suffer some other form of impediment or disability. It is obviously right that the same punishment should be available for behaviour causing the same distress, whatever the motive may happen to be.
We have also deliberately not referred in this amendment to persistence. It proved impossible to define persistence in a way which would allow the police and the courts to operate with any certainty. Whatever definitions were chosen would inevitably have led to anomalies and absurdities. For example, would two offences in two months be persistence; or would it have to be two weeks; or two hours? It would also not be possible to deal satisfactorily with different offences of varying seriousness which were committed against the same victim over a period of time.
We have therefore based our offence on the existing Section 5 of the Public Order Act 1986; that is, threatening, abusive or insulting words or behaviour causing harassment, alarm or distress. Section 5, which is the lowest in the series of public order offences does not require anything more than threatening, abusive or insulting conduct within the hearing or the sight of a person likely to be caused harassment. It is punishable with a maximum fine of £1,000. For the new offence there is the added element of intent and the requirement for a person to be caused harassment. Those are important if we are to distinguish the new offence from the very wide range of behaviour covered by Section 5 and to justify moving from a fine of £1,000 to a maximum of six months' imprisonment and/or a fine of £5,000.
I do not feel that they will prove a difficulty in dealing with the incidents of racial harassment with which too many people in Britain are only too familiar.

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Abuse or threatening behaviour which is directed at individuals or households will clearly have an element of intent and someone will have been harassed. The repetition of offensive behaviour, whether it is within two hours, two weeks or two months, could also indicate intent to cause harassment. A new power of immediate arrest has also been added. In our discussions with the police it was clear that they felt that the new arrest power would help significantly in enabling them to take immediate action against offenders and to reassure the victims of racial harassment.
Perhaps I may also say that we have considered very carefully the different possible approaches to dealing with the problem of racial harassment. We believe that this amendment offers an easier and more effective way of tackling the issue than do other suggestions. It does so without creating anomalies and it keeps within the general framework of public order legislation. The Government have wanted to use the opportunity of the Bill to bring forward changes to the law which are effective in dealing with these problems and are consistent with other criminal law provisions. I believe that we have done that.
The Government will continue to look at ways of further improving the ability of the criminal justice system to deal with such terrible crimes. Next week we expect the publication of the report of the Home Affairs Committee into racially motivated crime. The Government will look very carefully at its recommenda-tions. The problems of racial violence and harassment are matters which the Government take very seriously indeed. We shall continue to look for effective ways of dealing with them. I beg to move.
6.45 p.m.
Lord Irvine of Lairg: There are three amendments on the Marshalled List which relate to harassment: the amendment just moved by the noble Earl; Amendment No. 159E in my name, which we shall come to later; and Amendment No. 159H in the name of the noble Baroness, Lady Flather. The noble Earl's amendment, as he explained, would create a new offence of intentionally causing a person harassment, alarm or distress. It would have to be proved both that the person charged had the specific intent to cause a person harassment, alarm or distress and that that was actually caused.
I have four basic criticisms to make of the proposed new clause. I must also observe that there is nothing in the clause to indicate that in the Government's view racial harassment is a more serious matter than other types of harassment. First, the clause is limited to conduct which involves the use of,
"threatening, abusive or insulting words or behaviour, or disorderly behaviour, or … a threatening, abusive or insulting"
display or representation.
As the noble Earl said, that largely repeats the current provisions in Section 5 of the Public Order Act. The words or conduct must be threatening, abusive or insulting.
There is a range of conduct which is either a trespass or a nuisance but which is not covered by this clause. That is our first concern. For example, it would not
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cover the intentional playing of loud music outside the home of the victim, nor the deliberate creation of a din in neighbouring premises. That would not qualify as disorderly behaviour, which connotes physical disturbance or disruption. It would not cover entry on the victim's premises which is not threatening but designed to cause annoyance or irritation. It would not cover daubings on the walls of the victim's home unless those daubings were either threatening, abusive or insulting. It would not cover the distribution of pamphlets or other written material to the victim's house which was offensive without being insulting.
In Cozens v. Brutus in 1973, this House, in its judicial capacity, held that conduct which was annoying or irritating, or which showed a disrespect or contempt for the rights of others, did not necessarily qualify as insulting, no matter how much resentment it induced. It must also be highly questionable whether the dumping of refuse in the victim's garden would qualify as insulting as distinct from being deeply offensive. The scope of this provision, therefore, is such that it does not effectively deal with the problem of low level harassment, which the Government recognised in the other place was not covered by the existing Section 5.
Secondly, the amendment refuses to recognise that racial harassment is prevalent, that it specifically selects its victim and singles out him or her because of race or colour. That is not expressly covered by the clause.
Thirdly, it is difficult to understand how it can be possible for conduct involving the deliberate harassment or the intentional causing of alarm or distress to another to be reasonable. I invite the noble Earl to give some examples. Nor can I understand why it should be a defence, as subsection (2) provides, that the harassment is carried out inside a building in circumstances in which the victim is also inside the building. I find that provision puzzling. No doubt the noble Earl will be good enough to explain.
Finally, although the range of conduct covered by this new clause is no wider than that covered by the current Section 5, the prosecution will now have the burden of proving both the intent to cause harassment and that it was in fact caused. The only benefit to be derived from the imposition of those additional hurdles is that the offence is now punishable by imprisonment for a term not exceeding six months.
So the noble Earl's amendment covers broadly the same grounds as Section 5 of the Public Order Act 1986. It does not address other forms of harassment which in the other place the Government described as low level harassment, presumably because they found that too difficult. When, subsequently, I commend Amendment No. 159E to the Committee, I shall endeavour to explain how it fills the gaps from which this amendment suffers.
There is one other concern that we desire to express about this amendment. There is a risk that in one respect it may be inappropriately wide. It covers any kind of threatening or disorderly behaviour or abusive or insulting written words; and it could be a one-off incident because the new clause does not specify that the behaviour has to be repeated. Therefore, having criticised the amendment for its gaps, I now criticise it

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on the basis that, because it does not require any racial element to be involved, it is potentially a very wide-ranging offence couched in very general terms.
The concern has been expressed that an offence of such width and generality could be used disproportionately against young black people engaging in what the new clause calls "disorderly behaviour". I invite the noble Earl to respond to the perceived danger that the clause could be of only limited effectiveness in combating racial harassment on the one hand, but that on the other hand it runs the risk of inappropriately criminalising young black people—and indeed other young people—who are engaging in a one-off incident of low level disorder. I suggest that the amendment is subject to those criticisms and invite a detailed response. I imagine that it will not be opposed—not on the basis that half a loaf is better than no bread but rather on the basis that a crumb is better than no bread.
Lord Renfrew of Kaimsthorn: I support the new clause which seems to cover much useful ground. As my noble friend Lord Ferrers said, it increases the penalties for threatening, abusive or insulting words or behaviour. It also, usefully, no longer contains the provision found in Section 5 of the Public Order Act that:
"It is a defence for the accused to prove … that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress".
The omission of that defence seems to me helpful and constructive.
I have no doubt that the noble Lord opposite made a number of valid points. However, some of them seemed directed more towards the merits of his own amendments rather than to the demerits of the new clause. I am not at all persuaded that it would be inappropriate for both to be accepted. I see merit in addressing the racial issue specifically, as we shall have the opportunity to do when we debate later amendments. But my noble friend made a good case in saying that often it is beneficial to treat disorderly behaviour which may be racially motivated on the basis that it is causing harassment, alarm or distress without necessarily always highlighting the racial hatred component.
There is only one element which excites my concern a little; it is, the requirement that:
"A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he … uses threatening, abusive or insulting words or behaviour."
At the end of the sentence we see the words,
"thereby causing that or another person harassment, alarm or distress".
I should have thought that if a person uses threatening, abusive or insulting words or behaviour and thereby causes another person harassment, alarm or distress, that would be sufficient grounds for the offence without it being necessary to demonstrate that there was in addition an "intent" to cause a person harassment, alarm or distress. The causing of that harassment, alarm or distress could well be regarded as sufficient without the need to demonstrate intent. I shall be interested therefore to hear my noble friend say a few extra words on that point. In general, the new clause is useful.
Lord Mishcon: Perhaps I can first apologise because I shall have to leave due to a prior important engagement and therefore will not be present when the other amendments are being moved on this important issue. Normally I would not have spoken unless I thought that I had something a little constructive to add to the debate.
A substantial number of the citizens of this country as they now are look to Parliament in both Houses—where we are considering this public order Bill—for assistance in their protection. I use the word "protection" advisedly. Members of the Committee will have noted with alarm and sadness the increase in the number of incidents, some of a serious nature, of racial incitement and insulting behaviour towards those of another colour. I hope therefore that no mere argument over words will stop a provision or, if necessary, a couple of provisions being included in the Bill to deal with the serious matter of racial incitement and insulting behaviour.
I agree entirely with the noble Lord, Lord Renfrew, that it is difficult when one reaches court to prove an intent. The burden in the clause is upon the prosecution to do so. One would have thought that a court was well able to deal with the facts before it where the prosecution in any event must prove that there has been threatening, abusive or insulting words or behaviour, or disorderly behaviour, or the display of the writing described in the amendment, and that it caused another person harassment, alarm or distress. Surely the onus is then properly placed upon the defendant to say that he had no intention of so doing, in spite of the fact that the prosecution proved that element. In that regard I respectfully agree with what was said.
Perhaps I may take up a point made by my noble friend Lord Irvine of Lairg; but I go further. When dealing with the defence the clause includes the words:
"It is a defence for the accused to prove… that his conduct was reasonable".
I can foresee, as, no doubt, can other Members of the Committee, what may happen in a case with which we are all familiar. The opportunity is given to a defendant to say to the court, "My propaganda was reasonable". The court must listen to him in order to decide whether or not that plea succeeds. I envisage a case of writing on a wall in a white district and the writing on the wall says, "Wogs back home". In a case of that kind, if the amendment be accepted, the defendant will be allowed to say, "There is a political party in this country that is permitted quite lawfully to propagate the policy that we should repatriate black people who come over here, especially over a certain number." He may even quote the propaganda to the court and say, "I belong to that opinion and from my point of view it was completely reasonable, in a white district, to try and obtain support for that point of view. I am not on a platform—I could have been—on a street corner saying that that is my policy. I am not much of an orator and so I put my belief in short, sharp form by printing on the wall —I have not been accused of any crime connected with writing on a wall—the words, 'Wogs back home'. I am saying that I was reasonably putting forward a point of view. It was

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in a white district. I did not even think that anyone who was black would see it. Even if they did, am I not permitted to express that view?"
I ask the Minister and the Committee to concentrate on the amendments which deal with that scourge and to see to it that whatever comes out of the Bill eventually deals properly and practically with something which I know the Committee, like myself, hates.
7 p.m.
Baroness Flather: While I welcome the intention behind the clause, I regret that it contains a lot of pitfalls. I hope that at the end of the debate the Minister will have another look at it.
The question of whether racial motive can be proved has been with us since the time of the second Race Relations Act. My memory does not go back to the first Race Relations Act but we have always been told that, if there is a specific law that relates to racial aspects, there will be difficulty in proving those aspects and, therefore, that we should not go down that road.
The time has come when we need to go down that road because there has been a great deal of anxiety about the increase in racially motivated crimes of all kinds, and particularly the increase in harassment. I am delighted that the Government have acknowledged that there is a gap, but the way in which they have chosen to fill that gap will, in my opinion, not work. If there is a need to address the problem of racial harassment, then that is what we should be doing. We should not be trying to create a catch-all situation which may catch nothing at all. I am very anxious that, while there are other forms of harassment that need to be dealt with, we should concentrate our resources on doing something about racial harassment.
Once of the major anxieties about the clause is the fact that there has to be an identifiable victim. One may well ask what is wrong with the requirement that there should be an identifiable victim. However, that victim has to go to court and give evidence. Many incidents of harassment take place on housing estates with the perpetrators living on the same estate as the victim. It is very frightening indeed for a victim to stand up in court, give evidence and then return to his home, with the person who has been fined, or even sent away for a short period, back again in his or her house and more reprisals likely to follow.
One of the problems is that the police can in no way protect those who give evidence from future harassment and violence. In this case it is absolutely essential. It is not a certain type of behaviour, it is not a behaviour which society will condemn, but there has to be an identifiable victim who gives evidence. That is a very serious defect in the clause which will cause an enormous amount of anxiety to those whom the clause appears to be designed to protect.
The noble Lord, Lord Irvine of Lairg, mentioned Clause 2, which is quite incomprehensible to me. In places like Tower Hamlets there have been a number of incidents that have taken place at the homes of people living on estates. It is possible that on some occasions the breaking down of a door might amount to an offence, but anything that happens after the door has
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been broken down will not be covered. It is an extremely odd situation; if you push past somebody who has opened the door to you and then you do whatever you wish in their home, if it is a woman or a child, it is not covered by the clause.
Clause 3 should also be looked at very carefully. Both Clauses 2 and 3 need to be reconsidered. If they are not reconsidered, we need a full explanation as to why the draftsmen chose the exclusions. I have not understood them and one or two people whom I relied upon to explain matters to me, have not understood them either.
We are living in a time when we have seen a great deal of violence and the kind of behaviour that is condemned by the clause on the continent of Europe. There has been a rise in that kind of behaviour. The last thing we want is for it to be imported into this country. We have been very well served so far and this is the moment to grasp the nettle and make sure that a very strong message goes out that we are not going to accept that sort of behaviour and that we are not going to accept racial harassment. That is what the clause should be doing: it should be making racial harassment a specific offence.
Lord Wigoder: We on these Benches wish to support the proposed clause, but before proceeding I should like to ask the noble Earl to intervene at once if the next point that I raise is based upon a misconception.
The Bill does not repeal Section 5 of the Public Order Act 1986. There is no conceivable reason why both clauses should continue to be part of the law because there are very few practical differences between the proposed new clause and Section 5 of the Public Order Act.
The existing Section 5 provides:
"A person is guilty of an offence if he (a) uses threatening, or abusive or insulting words or behaviour … or (b) displays any writing, sign or other visible representation … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".
The offence may be committed in a public or a private place, except that it is no offence when it is displayed in certain circumstances by a person inside a dwelling and the other person is also inside that or another dwelling. It is a defence for the accused to show that he had no reason to believe there was any person within hearing or sight likely to be caused harassment. There is also the defence, about which there has been much comment, that the accused can prove that his conduct was reasonable. There is a power of arrest without warrant, etc.
Section 5 covers almost word for word the same matters as are covered by the proposed new clause. I can see only two significant differences, both of which I support. The first is that the proposed new clause creates an imprisonable offence. That is a new provision and it is one that we support. The second matter concerns a distinction rather than a difference. In the wording of the existing section of the Public Order Act a person is guilty of an offence if he uses certain words or behaviour within the hearing or sight of a person likely to be caused harassment, whereas the proposed new

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clause states that the person is guilty if he acts with intent to cause a person harassment and thereby causes that or another person harassment, alarm or distress.
There is very little distinction in practice between those two forms of words. I slightly prefer the wording in the proposed new clause as against the opinion expressed by the noble Lord, Lord Mishcon. It is desirable, particularly where the offence that is created is an imprisonable one, that there should have to be proved, as an ingredient of the offence, an intent to cause a person harassment, alarm or distress.
I would not wish to see a situation where a piece of disorderly behaviour which happens to cause some passing old lady of an exceedingly sensitive temperament some alarm or distress becomes an imprisonable offence and part of the Public Order Act. If we are going to treat the matter with the seriousness and gravity that it deserves, we should limit it to cases where there is an intent to cause some other person harassment, alarm or distress. Subject to that, it will be a very odd statute which in due course is consolidated. It will contain this new clause followed immediately by another clause almost exactly repetitious but providing for a somewhat lesser penalty.
Lord Annan: The previous speech was very interesting. But, if the Public Order Act has not been effective, does it not suggest that we need something much stronger than the amendment which the noble Earl has produced? I very much support the views of those who say that it is too much to expect "intent" to be proved. I very much hope that we shall strengthen this aspect in the debate to come.
Lord Monson: Although the new clause as a whole would seem to strike a fair and reasonable balance, like the noble Lord, Lord Irvine of Lairg, I think it goes a little too far in one respect. I refer of course to the absence of any requirement that the conduct in question should be persistent or even repeated. It could refer to a one-off incident of any kind, not involving race or anything remotely like it. Let us take, for example, the case of a motorist who is sitting in his car at a red traffic light with his handbrake on and is violently run into from behind by another motorist who has been chatting away and not looking where he was going. The innocent motorist gets out and uses insulting words, or possibly even abusive words, which undoubtedly will cause and are intended to cause distress—no doubt justifiable distress—to the guilty motorist. The noble Earl may well argue that in such an eventuality the magistrates might find that the conduct was reasonable under the circumstances and that would constitute a valid defence. Indeed they might, but, again, they might not. Magistrates can be very unpredictable, as we know from recent cases. I wonder whether when he comes to reply the noble Earl can reassure us on that point.
Lord Lucas: I too welcome the determination behind the amendment to tackle the problem of racial harassment and to tackle it in a way which creates a general offence and not a specific offence. However, I have some severe reservations about the wording of the
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amendment. First, I believe that it is worded in a way which will make it extremely hard to secure convictions. That is not only my opinion; it is clearly the opinion of the police, too. I refer to the use of the word "intent", which is a very hard test to pass without the qualification that the word has elsewhere in the Public Order Act. Elsewhere it is qualified by "likely" or "awareness". There is also the concept earlier in the Act of a person of reasonable firmness being likely to be harassed under those circumstances. Any of those concepts could well be imported into that first sentence. Secondly, the amendment states,
"to cause a person harassment".
One has to find a person who has caused harassment. One has to pick on an individual. The amendment later states,
"thereby causing that or another person harassment".
One has to produce him and there has to be evidence. As my noble friend Lady Flather said, that will be extremely difficult to do in many cases. I do not think it is reasonable to ask that. Most of these offences are offences against the generality of the community. One should not have to find an individual to show that an act is offensive.
Subsection (3) imports the wording that is used in other parts of the Act. It basically says that what a person does in his own home is his own affair and should not constitute an offence under the Act. But it includes the rather strange provision which allows a person in one flat of a block of flats to stand inside his door and insult other people in common parts, or in another flat, or to play loud music, or to create a disturbance in his flat which causes harassment to his neighbours. It allows that to pass unpunished under the law, whereas harassing someone in the street is caught by the law. If my noble friend looks at the wording of the original Act he will find that that is an anomaly and should not be imported into this new offence. The new offence ought to cover offensive behaviour to someone else anywhere except within the confines of one person's dwelling.
My other concern echoes the other concern of the noble Lord, Lord Irvine, that in some way the clause runs too wide and that it offers policemen powers which may be interpreted in some sections of the community as a resurrection of the old sus laws. I well remember sus from my long years in Notting Hill Gate. It was not pleasant while it was happening. Those Members of the Committee who have read the Evening Standard today will have seen an amusing account of the assault on a clown who was performing to a crowd outside a pub in Richmond—a white clown to a white crowd. He was stopped from telling jokes by a policeman because the policeman said that he considered the jokes to be offensive to people, that he was causing a disturbance and that he intended to arrest him. The policeman had beer poured on his head, his car keys were thrown in the Thames and the incident ended up as a minor riot.
That was in Richmond. If similar things happened in somewhere like Brixton and action was taken under this Bill there might well be a feeling that there was quite unreasonable imposition being made on members of the black community. If we are to bring this kind of power

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into effect we need to put into place in advance arrangements to make sure that any such questionable use of the powers—and they are bound to occur: they occur every day just because policemen are human beings—should be quickly and very visibly dealt with
The powers are broad. It is clear to me from reading the amendment that a builder wolf-whistling from scaffolding could be caught and that a heckler at political meetings could be caught. All kinds of every-day minor acts of harassment could be caught and made into arrestable offences. The potential for the police to misuse the powers is there. It ought to be clear that if the powers are misused the matter will be dealt with. Otherwise we shall have upsets.
7.15 p.m.
Lord Lester of Herne Hill: Nothing is more tedious than for non-lawyers to hear lawyers talking about the law, especially when the law can only be understood by looking at a statute that noble Lords will not have in front of them. I speak only to try to clarify what may be obscure in the debate. If I get it wrong, perhaps I may be forgiven because I do not claim to have great expertise in this area.
As I understand it, the position may be summarised in this way. The Law Commission, in an extremely lucid and convincing report on offences against public order, made proposals that Parliament enacted in the Public Order Act 1986. The Law Commission was very careful, as was Parliament, not to include over-broad offences against public order, essentially on civil libertarian grounds. As my noble friend Lord Wigoder indicated, Section 5 of the existing Act penalises harassment, alarm or distress, whether intentional or otherwise, and makes it a summary offence. What the new clause seeks to do is to create the further offence against public order of intentional harassment and to make it punishable by imprisonment as an indictable offence. That is a thoroughly worthwhile thing to do. But what it does not seek to do is to amend the different parts of the Public Order Act—Sections 17 and 18— dealing with incitement to racial hatred.
Therefore, with great respect to those of your Lordships who criticise this provision for not dealing with the serious social evil of incitement to racial hatred, it seems to me that the provision which we are now debating has nothing directly to do with that. That is why it is not tied to incitement to racial hatred or racial harassment. We shall come to that when we discuss the amendments tabled by the noble Lord, Lord Irvine, which are concerned with that separate area of the Public Order Act.
Therefore, for the reasons that were given by my noble friend Lord Wigoder, it seems to me that it is worth while building on Section 5, leaving that provision in place and creating this new offence, which does not threaten civil liberties in any sense because it rightly requires proof of guilty intent. It leaves entirely open the question that we shall come to later of what, if anything, to do about the separate social evil of incitement to racial hatred. I hope that what I have said clarifies rather than obscures.
Lord McIntosh of Haringey: I am not sure that it does. I am sure that the noble Lord, Lord Lester, is right in saying that this new clause has nothing to do with the racial hatred section of the Public Order Act 1986. I am not sure whether the Minister claimed in his speech—he certainly made this claim in a letter that he wrote to both me and the noble Lord—that
clause fulfils a commitment which was given by the Government during Report stage … in the Commons. We said that we would endeavour to bring forward a provision to deal more effectively with racial harassment, particularly where it is persistent".
The provisions certainly do not do that, but it was claimed that that was the purpose of the clause.
Earl Ferrers: I shall come to that in a few minutes because I think that the noble Lord, Lord McIntosh, is wrong. The clause deals with racial harassment. That is its purpose. However, it goes further than racial harassment. I was glad that my noble friend Lord Renfrew approved of the amendment and, indeed, that it has the approval of the noble Lords, Lord Wigoder and Lord Lester. That is encouraging because we do not always have their approval. I am grateful for it.
The noble Lord, Lord Lester, said that nothing is more boring for non-lawyers than listening to lawyers talking to lawyers about the law. I would say that nothing is more difficult than for non-lawyers to talk to lawyers about the law and sometimes to try to persuade them that they are not right. Fortunately, I shall not have to do that to the noble Lord this evening.
I make no bones about it. This is a very difficult area in which to try to legislate. The noble Lord, Lord Mishcon, said that he hoped that no mere arguments over words would stop an amendment to the Bill which would stop racial harassment. But the noble Lord is a perfectionist over words. He uses words and, as a lawyer, he diagnoses the use of words. He will know that the use of words is a very important thing in a statute. That is why we have tried very hard to find words that deal with the problem with which we are trying to deal and which will not automatically or unfortunately catch a whole lot of other cases which ought not to be caught.
My noble friend Lord Lucas said that he had reservations. If I may say so, I thought that he made a contradiction in terms. According to my noble friend, the police say that it would be hard to secure convictions under the terms of the amendment. My noble friend then said that the powers are too wide. It does not seem to me that the two go together.
My noble friend referred to the sus laws, as did the noble Lord, Lord Irvine, although he did not use those words. He said that there would be suspicion about a person's conduct and that the new offence that we are proposing involves conduct which is already a criminal offence under Section 5 of the Public Order Act. Where the elements of intent and a victim are present, a higher penalty would be available under the new offence.
A criminal offence can be committed by a person of any race or background. If a member of an ethnic minority commits the new offence, he will be liable to

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the same range of penalties as any other person. Nobody comes within the scope of this offence unless they are engaged in,
"threatening, abusive or insulting words or behaviour".
If anyone indulges in such behaviour, they may commit an offence under the present Section 5 or the new clause. That applies equally to all races—and rightly so. It is difficult to get it both ways. Where there is an offence which is created by racial motivation, one runs into difficulties in proving that that was the motivation. It would be far more difficult to use such provisions. By avoiding a need to prove motivation, the offence is much easier to prosecute and the provisions would apply—rightly, in the Government's view—in all circumstances and to all groups. Therefore, I do not think that it is right to suggest that there is anything remotely akin to the sus laws in this provision.
Turning to motivation, I should like to refer to the important point that was made by my noble friend Lady Flather. It is here that I defer to the noble Lord, Lord Lester of Herne Hill, and others who are lawyers. There are three steps in deciding a case. Let us take the rather extreme example of murder. A person may murder somebody with a knife. You have to prove first that a person has been murdered. You then have to prove intent. One can prove intent by saying that the first man had a knife with him which he then put into the other man, so he must have meant to murder him. It is much more difficult to prove motivation. If a man murders his wife, was the motivation for the murder that he could not stand his wife, that he thought that his wife might be going off with somebody else or that he thought that his wife had put her hands into the till? Proving motivation is very much more difficult than proving intent. That is why we did not go down that route.
My noble friend Lady Flather referred to discrimination cases under the Race Relations Act. Proving discrimination requires a much lower test. An industrial tribunal can infer discrimination. That is very different from proving a racial motivation beyond reasonable doubt in a swifter criminal case.
There is also the important issue of victim support and housing policy where neighbours are involved. If a person is to be gaoled for six months, evidence of a victim is warranted. There are other problems affecting other criminal offences also.
Perhaps I may refer to the important point made by the noble Lord, Lord Wigoder. He said that the wording of the amendment is almost the same as the Public Order Act—he is quite right—and he wondered why it was necessary to have both provisions. I can answer that best by means of an example. Under the Public Order Act, if you use threatening, abusive or insulting words or display any such writing or so forth, you can be guilty of an offence. Let us imagine that a group of people is standing outside a pub making offensive racial remarks and a Pakistani walks by and hears those remarks. Those words would be very insulting to him and there would be a case to be answered under Section 5 of the Public Order Act because the person concerned heard the remarks which were being made in an offensive way. That is different from a case in which the same people
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who were outside the pub take a walk together, see a group of Pakistanis and deliberately make those offensive remarks with intent to upset and to cause distress. In the first case, there is a penalty of £1,000 for using threatening, abusive or insulting words or behaviour or disorderly behaviour. Under the amendment there would be a higher offence of being guilty,
"with intent to cause a person harassment, alarm or distress".
That would carry a penalty of £5,000 and/or six months' imprisonment. So there is a difference, and the amendment provides a higher test.
Lord Wigoder: I understand what the noble Earl is saying and I am grateful to him for giving way. However, in the first case involving what might be called the lesser offence, it would not be an offence simply to use threatening, abusive or insulting words or behaviour. That would have to be done within the hearing or sight of a person who is likely to be caused harassment, alarm or distress. The distinction between a person deliberately using insulting language knowing that somebody who is present is likely to be offended by it and that person using insulting language with intent to offend the other person is very tenuous, is it not?
Earl Ferrers: I bow to the noble Lord's greater experience. I believe that it is not. In the first instance that I gave, people could be making such insulting remarks, which happen to be heard by the person passing by, who is deeply offended. In the second instance, those people would be deliberately going out to make the offensive remarks in order to have the intention of harassing people. That is what is behind the whole amendment. Where people intend deliberately to cause offence, and perpetual offence, they should be caught. If they are caught they will receive a substantially increased penalty.
The noble Lord, Lord Irvine of Lairg, said that the range of conduct would not be covered by, for instance, playing music outside someone's house, making a din, daubing paint on the outside of houses or distributing pamphlets. My noble friend Lord Lucas also referred to the issue of making a noise. That is difficult to control or to write into law. Plenty of people find it most offensive to have next door to their house or flat someone who is playing loud music. It is deeply offensive and it can be irritating. However, it is quite difficult to say that that person should be caught under this clause. We can all see the type of reasons which the noble Lord has in mind for catching such people but it is difficult to write into statute that someone who makes a loud noise or plays loud music for a certain reason ought to be caught.
The same applies to what the noble Lord, Lord Irvine, called "making a din". Of course, the distributing of pamphlets could be covered by Part III of the Public Order Act or by the Malicious Communications Act. The noble Lord also referred to the reasonable defence. Of course, the reasonable defence for using abusive language could well be that someone was shouting abuse to someone else in order to alert him that someone was stealing his car.
It is difficult to deal with low-level harassment. The clause provides an effective penalty—for instance, by

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covering issues such as name calling, which previously could receive only a low fine. My noble friend Lady Flather and the noble Lord, Lord Irvine, referred to the difficulties of being inside a building. This is a public order Bill and it is difficult to make legislation which relates to public order operate inside a building. The building in question is a dwelling—in other words, a house—and it would be difficult to operate public order legislation inside someone's private dwelling—
Earl Russell: I am grateful to the noble Earl for giving way. Would it be possible to make the clause read, "lawfully inside the dwelling"?
Earl Ferrers: I shall have to think about that. Of course, if one is in a building unlawfully, that in itself is an offence. My noble friend Lady Flather asked what happens if someone barges past you and into your house and then makes nasty and offensive remarks. Of course, he could be caught for assault for pushing into the person and gaining entry into the house—
Lord McIntosh of Haringey: It may be helpful to recall that when we were dealing with matters of trespass in earlier parts of the Bill we were able to define those on land—and presumably the same applies to a dwelling—as being the occupiers or those there at the invitation of the occupiers. Perhaps that would meet the point made by the noble Earl, Lord Russell.
Earl Ferrers: I return to what I said at the beginning of my speech. This is a difficult area in which to legislate. We are endeavouring to legislate for the people who cause harassment, alarm or distress and who do it with intent and on more than one occasion.
The noble Lord, Lord McIntosh, said that this provision does not address racial harassment. It does and it goes further than racial harassment because it also refers to other forms of harassment. Perhaps I may address my answer to a point made by the noble Lord, Lord Irvine. We believe that racial harassment is awful, despicable and disgraceful. But so are other forms of harassment. I remember reading in the newspaper only the other day that some people had thrown stones at an elderly woman in a wheelchair. That is a most appalling form of harassment and it might be done because the person is in a wheelchair. That kind of harassment, done continuously and with intent to cause unhappiness, would be caught by this amendment.
I hope that Members of the Committee will agree that this amendment will improve the Bill, as have the noble Lords, Lord Wigoder and Lord Lester.
On Question, amendment agreed to.
Lord Annaly: I beg to move that the House do now resume. In doing so, perhaps I may suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Antarctic Bill
7.35 p.m.
Viscount Montgomery of Alamein: My Lords, I beg to move that this Bill be now read a third time.
It has been a privilege for me to sponsor the Antarctic Bill. Its enactment will contribute materially to the preservation of the antarctic environment both now and for future generations. That this is a matter of widespread anxiety has been illustrated by all-party support both in this House and in another place.
The object of the Bill is to make the changes to United Kingdom law which are needed so that the United Kingdom can ratify the 1991 Environmental Protocol to the Antarctic Treaty. The speedy passage of this Bill will ensure that. I hope that the progress that we have made in this House will encourage other treaty parties to introduce similar domestic legislation and to complete their own ratification procedures as fast as possible so that the protocol can enter into force. I commend the Bill to the House.
Moved, That the Bill be now read a third time.— (Viscount Montgomery of Alamein.)
Lord Henley: My Lords, I shall try to be brief. First, I should like to place on record our pleasure at the imminent passing into law of this Bill and to congratulate my noble friend Lord Montgomery on the work that he has done in sponsoring it.
I would like briefly to take the opportunity to confirm certain ministerial assurances contained in correspondence from my noble friend Lady Chalker addressing anxieties raised on Second Reading. Copies of the full correspondence have been placed in the Library. But it would be helpful, I believe, if those assurances were to be given to the House.
The first point relates to the fact that certain of the permits introduced by the Bill do not have the transparency provided for them by the Antarctic Treaty system in the same way as wildlife or protected area permits. The reason for this is that in this respect the Bill has gone beyond the provisions set out in the protocol by creating a permit system to ensure rigorous enforcement. With regard to Clauses 3 to 6, I can give the House an assurance that the regulations, which will be made under Clause 14, will provide that the fact that an application for a permit under any of those clauses has been made will have to be notified expeditiously in the London Gazette. The regulations will also require the applicant to make details of the application available on request.
I can also assure the House that, when the Secretary of State is considering applications for permits, he will, in addition to complying with the requirements of Clause 15, take into account any representations which he may receive from any quarter, whether governmental or non-governmental. It will, of course, be for the Secretary of State to determine, in the light of all the circumstances, what weight to give to such representations.
The second point relates to informing third parties of the reasons why a permit has been refused. I believe that this would be wholly inappropriate. It could give rise to

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a situation where information, even of a defamatory nature, would be required to be given to a third party. That cannot be right. I can, however, assure the House that the Secretary of State will provide in the regulations that the applicant must be given the reasons for refusal of his permit application. It would then be for the applicant to decide whether he wished the reasons for refusal of his permit application. It would then be for the applicant to decide whether he wished the reasons to be given to others or aired publicly.
The third point relates to the public availability of initial environmental evaluations. The protocol requires that a list of such evaluations must be prepared annually, circulated to the Committee for Environmental Protection (which is to be established under the protocol) and to the other treaty parties, and be made public. The Government will ensure that that is done. Article 6(2) of Annex I to the protocol also requires that such an evaluation must be made available on request. We shall ensure that that too is done.
I hope that with those assurances, this Bill will be given the blessing of the House.
Viscount Montgomery of Alamein: My Lords, the issues which my noble friend has mentioned were raised at an earlier stage by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Beaumont of Whitley. They cannot be here this evening but I discussed those matters with them yesterday and I know that they will be grateful for the assurances which the Minister has given this evening.
For my part, I am most grateful to my noble friend for what he has said at all stages. I am grateful too for the support that the Bill has received in all parts of the House. I hope that the House will now give the Bill a Third Reading.
On Question, Bill read a third time, and passed.

Local Government Act 1988 (Competition) (Defined Activities) (Housing Management) Order 1994
7.41 p.m.
Viscount St Davids Viscount St Davids rose to move, That the draft order laid before the House on 4th May be approved [18th Report from the Joint Committee].
The noble Viscount said: My Lords, I beg to move the Local Government Act 1988 (Competition) (Defined Activities) (Housing Management) Order 1994. It will extend compulsory competitive tendering, or CCT for short, to the management of local authority housing. Part I of the Local Government Act 1988 contains provisions about the compulsory competitive tendering of local authority work. Section 2(2) (a) to (g) lists the activities to which the Act currently applies. This order will extend that list to include the new activity of housing management.
It may be helpful if I remind the House what CCT is and set our proposal to extend CCT to council housing management in the broader context of developments
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with CCT. CCT is about subjecting local authority services to the test of competition. CCT was first applied to construction, maintenance and highways work by the Local Government, Planning and Land Act 1980. CCT was extended to other blue-collar services, such as refuse collection and grounds maintenance, through the Local Government Act 1988. The value of local authority work already subject to CCT in England and Wales is about £6 billion a year. Therefore, there is nothing new about CCT. Local authorities already have a wealth of experience in testing services in competition with the private sector.
The decision to seek to extend CCT to council housing management has its origins in the Citizen's Charter, as a central element of a raft of measures designed to improve the quality of services for local authority tenants, to raise standards and to make services more responsive to the needs of the user. It also reflects our desire to extend the benefits of competition to the housing management sector. In other sectors the experience of CCT is that competition leads to improvements in the quality of services and value for money.
Local authorities currently spend around £1.25 billion per annum managing the homes for which they are responsible. The standard of housing management has undoubtedly improved over recent years. Some authorities do provide their tenants with high quality services, but even they continue to look for further improvements. We want all tenants to enjoy the highest quality services and for all authorities to reach the standard of the very best.
That requires a change of approach, a new way of doing things. Competition will stimulate that change —a change to better and more responsive services to tenants, better standards of housing management and better value for money. Councils need to stand back and look not only at the services they provide but also at the way in which they provide them. They need to look critically at existing practices and ask whether they deliver services in the most efficient and effective way. Old practices may need to be shaken up and standards of service improved, with a greater focus on what the customer wants.
Competition will also bring fresh insights and expertise into the business of housing management. It will bring benefits even for the most efficient local authorities—for all local authorities will be encouraged to think further about the standard of service they provide, whether they have the best form of organisation to deliver services and whether estates are being run in the most effective way. Therefore, we have three basic objectives in extending CCT to housing management: to improve services to tenants; to improve standards of management; and to improve value for money.
I now turn to the involvement of tenants. Tenants have a crucial role to play in the process. Last year the Leasehold Reform, Housing and Urban Development Act gave tenants enhanced consultation rights. It ensured that tenants will have a real say in setting the standards of housing management to be required and in seeing that those standards are maintained through monitoring contractors' performance. In the past many

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tenants have been excluded from the management of their homes, powerless to influence the way things which affected their daily lives were done.
Over and above the framework for consultation set out in the statute, we also want to see local authorities involving their tenants in the selection of contractors and in the evaluation of tenders. In March the Department of the Environment issued guidance to local authorities setting out the basic principles for tenant involvement in the process of housing management. We have also prepared a leaflet for tenants outlining the rights they have to be consulted and how the process of CCT will affect them. It is important that tenants do not misunderstand the purpose of extending CCT to housing management and are fully involved in it. As consumers of the service, they have a vital contribution to make to the success of CCT in their local area.
We recognise that housing management is a very important local service, serving nearly 4 million tenants and their families. We also recognise the sensitive nature of the service and the need to safeguard local accountability and the interests of tenants. We do not, therefore, propose that local authorities' strategic, policy-making and enabling roles should be subject to CCT. The local authority will remain the landlord. It will set the housing management policy framework and define, together with its tenants, the services to be provided and the standards to be achieved. The authority will also continue to be responsible for deciding who shall be allocated one of its homes, setting rents and so on. In order to guarantee that we have adopted a different approach to the defined activity for housing management from that applied to other services. We have deliberately sought to exclude from the defined activity those functions which we do not consider should be subject to CCT. That makes the Government's view very clear and safeguards the roles of members and the interests of tenants.
I assure your Lordships that CCT is not about privatisation of the housing stock; nor is it the compulsory contracting out of local authority housing management. CCT simply requires that, where local authorities want to provide housing management services using their own staff, they have first to demonstrate that those staff provide the best value for money.
In developing the arrangements for housing management CCT the Government have worked closely with the local authority associations. We have carried out four substantial rounds of consultation on various aspects of our proposals. We have had hundreds of responses from local authorities, tenants and the private sector. We have considered them all carefully. In addition, eight English local authorities have been piloting the implementation of housing management. The emerging results of their work have also informed our deliberations. All have therefore played a constructive part in the development of our proposals, even those who may not agree with the principle of CCT. The result of that co-operation is that the formal consultation on the draft of the order which we have before the House this evening showed general agreement with the approach which we have adopted.
I turn now to the order. In addition to identifying the functions which an authority must subject to competitive tendering, the order also specifies the properties to which housing management will apply and gives authorities some extra flexibility by enabling them to ignore, for the purposes of CCT, the work of employees who spend only a small amount of time engaged in defined activities.
CCT for housing management will be implemented from 1st April 1996 in England, 1st October 1997 in Wales and 1st April 1998 in Scotland. The timetable will be modified for some authorities in England and Wales to provide for either a phased introduction of CCT, a later start date, or both, to reflect the size and varying states of readiness of individual authorities.
The timetabling arrangements will be implemented through separate regulations under Section 6(3) of the 1988 Act and are subject to the negative resolution procedure. They will be made once the order we are considering this evening is approved and comes into force. The same applies to a second order which will set a de minimis threshold for housing management. That will have the effect of exempting small housing authorities from CCT.
In conclusion, extending CCT to housing management will bring benefits to local authorities and their tenants alike. The extension of CCT to housing management will lead to better, more responsive services for tenants, higher standards of housing management and better value for money for all. I hope that your Lordships will support the order.
Moved, That the draft order laid before the House on 4th May be approved [18th Report from the Joint Committee].—(Viscount St. Davids.)
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Viscount for moving the Motion and introducing the order. For our part, we do not propose to oppose the order. Nevertheless, as the noble Viscount will know, we are opposed in principle to CCT —that is, not to voluntary competitive tendering, but to compulsory competitive tendering. We are in favour of tendering if triggered by tenants but not of compulsory competitive tendering and especially not in housing management.
Housing managers play an overall role in looking after the well-being of an estate. It is very important to ensure that when management of an estate spills over into other aspects, such as the removal of litter or the prevention of crime, there should be one person who is responsible. As I understand the order, CCT will not refer to any of the other aspects of housing management. If housing areas are to be put out to competitive tendering, I do not quite understand how the tender specifications will be drawn up to cover the wider involvement about which I have been talking.
Moreover, I find it odd that the order does not specify how tendering will operate, apart from the job note saying, "Replace the front door". If the job note says, "Replace the frame of the front door", the frame can be replaced five times. However, if the man carrying out the repair finds that the door is warped, he cannot replace it until someone else has looked at the problem.

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As I understand the order, that would then involve another tendering process. Perhaps the noble Viscount can help me on that aspect of the matter.
I have four questions for the noble Viscount apart from the points that I have already raised. First, are the Government really satisfied that this programme is in the best interests of the management of housing in local authorities? To that end have they employed consultants to aid the implementation of housing management CCT? If so, how much did it cost and what was the amount of public money involved?
Secondly, are the Government confident that local authorities have enough time to prepare for this rather radical shift to CCT in housing management? Thirdly, can the noble Viscount assure us that the introduction of housing management CCT will not undermine the important improvements in the quality of the housing service which many authorities have already made; for example, a comprehensive housing service? Fourthly, what are the costs of implementing housing manage-ment CCT? Will they outweigh the benefits for many authorities? Have the Government made such a calculation and, if so, can the noble Viscount kindly give us the results?
In conclusion, I can say that we will not oppose the order; indeed, it is not the custom in this House to do so. However, it does seem a somewhat odd arrangement. I am sorry that the noble Viscount introduced the Citizen's Charter in justification of the programme. I thought that that was the year before last's joke. Last year's was "Back to Basics". The real problem is that, yet again, the Government are trying to ensure that local authorities are downgraded in terms of their responsibilities. That is a policy which we on these Benches will oppose.
Baroness Hamwee: My Lords, the noble Viscount recognises the sensitivity of housing services; at least that is what he said. However, I wonder whether the Government really understand. Indeed, not only policy and strategy are sensitive; so also is the implementation of the service. The noble Lord, Lord Williams, mentioned certain matters such as the relationship with other parts of local authority services. One example that struck me was how housing management can relate to good social services if the two are separated as, indeed, they will be. Many local authorities are moving towards combining approaches to housing and social services and not trying to send them in different directions. I wonder whether the noble Viscount can give me the Government's view as to whether they are satisfied that it will be a good thing if such links are broken.
As regards the timing, I was concerned to see that in the Third Standing Committee on Statutory Instruments discussion on the order, the Minister, Sir George Young, when commenting on the pilot studies, explained, as we have heard tonight, that such studies had been carried out and that they would provide useful information for local authorities —and, undoubtedly they will. However, he did not appear to take on board the notion that there might be the opportunity to learn from the pilot studies before the programme goes forward.
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Surely, the point of pilot studies is that when they are carried out everyone concerned has an opportunity to consider them.
The Government may be satisfied with the results of the pilot studies, but they have not yet had the opportunity to share that satisfaction—or, indeed, dissatisfaction—with others who are concerned. I hope that the noble Viscount can tell me tonight what is in the Government's mind as regards pushing the programme forward without local authorities and tenants, and also those in the commercial sector, who may be putting in tenders bidding to carry out such services, having had the opportunity to consider the results of the pilot studies.
Thirdly, I turn to the detail that is to be included. I appreciate that consultation has led to a number of items being excluded and that the list has changed. Of course, we welcome—it would be churlish not to do so—the fact that the Government have listened to the comments of local authorities and local authority associations. However, from reading the list in the order, it seems to me that it highlights the problems that will arise in the specifications to be written by local authorities.
It would be consoling if the noble Viscount could at least recognise the problems that local authorities encounter in writing their specifications, and the hoops they have to go through, particularly those good local authorities which see the writing of the specifications not as an internal matter but as something in which tenants must be involved. My own local authority—I am sure it is the case with many others —has put, and continues to put, huge effort and time into ensuring that the specifications have the imprint of the ownership of the tenants who will be affected by them.
I should mention a further matter which, I suppose, comes back to my first point of the inter-relationship with other services. There is a reference in the list of services to collecting rent and service charges—that is obvious—but then there is a reference, at paragraph (c) on page 2 of the order, to negotiating an agreement for the payment of arrears. That seems to me a sensitive issue. Although one wants to see collection organised in a sensible and effective way, negotiating payment may involve all sorts of other issues such as knowledge of a tenant's circumstances. An ability to negotiate will not obviously be held by those who provide services such as mending window frames or dealing with the condition of common parts.
At paragraph (n) on page 2 of the order there is reference to the resolution of disputes between occupants. Again, that seems to me a sensitive matter which probably requires skills on the part of those seeking to resolve disputes which will be irregularly required but very necessary. The requirement of such skills will make it difficult for the specification by itself to ensure the quality of the overall provision of the service.
I understand the difficulty of listing the items but this whole matter seems to come back to the issue that local authorities should be allowed to decide for themselves what services are put out to tender. Different authorities may have different views as to whether all or merely some of the items on the list should be included. They

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know their own areas and their own problems. I say that the local authority should decide but that that decision must follow the wishes of its own tenants. The noble Viscount says that one must be responsive to the needs of the user. I fear that this order may not turn out to be responsive to the needs of the user.
Viscount St. Davids: My Lords, as regards the first point raised by the noble Lord, Lord Williams of Elvel, relating to the door, the package for which a contractor will tender, or of course for which the local authority's own housing department may tender, will be an overall package. I do not envisage that there will be a little tender for the door and another little tender for the door frame. The contractor will know the state of the housing stock and will put in an overall bid for the management of the housing stock in much the same way as occurs on any of the large private housing estates managed by large estate management companies. I do not see that that is a particular problem.
The Government have used consultants to aid the implementation of compulsory competitive tendering. As at 1 st June 1994 the Department of the Environment has paid £266,000 to consultants and we expect the full bill to be around £300,000. The noble Lord, Lord Williams of Elvel, and the noble Baroness, Lady Hamwee, questioned the timetable. Local authorities have had plenty of notice of the Government's intention to extend CCT to housing management. In June 1992 the Department of the Environment published its first consultation paper entitled Competing for Quality in Housing, which set out the Government's proposals. In December of that year the Government announced their intention to implement housing management CCT from 1st April 1996.
The Government have considered the timetable arrangements carefully and in answer to a further question of the noble Baroness, Lady Hamwee, I should say that of course we already have considerable information from the pilot schemes. We have weighed carefully the relevant factors which include authorities' size, preparedness for CCT, and the need to ensure that tenants enjoy the benefits of housing management CCT as soon as possible. Not all authorities have to implement CCT from 1st April 1996 however. Over a third of the authorities in England will have until 1st April 1997 to introduce housing management CCT. Larger authorities—those with more than 15,000 houses —will have two or three years to complete the process. Authorities in Wales and Scotland will have longer to prepare.
Where an authority is subject to restructuring as a result of the local government review, it will have extra time to prepare for housing management CCT. Most authorities will have 18 months from the date that the new authority takes over responsibilities. We announced, however, on 18th May that certain authorities which would not be able to complete their arrangements within 18 months would receive an extra six months, giving them two years from the date of re-organisation. The noble Lord, Lord Williams of Elvel, asked whether the CCT programme would undermine the important improvements in the quality of housing
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service which many authorities have already met. I can give the noble Lord the assurance he seeks. The regulatory framework for CCT will permit local authorities to maintain a comprehensive housing service by packaging a range of services into one contract if they wish to do so. In the end, it is up to individual authorities to adopt an approach which best meets their service delivery objectives in the light of consultation with their tenants.
The noble Lord, Lord Williams of Elvel, also asked whether the costs of implementing CCT would outweigh any of the benefits for many authorities. I agree that there is a point where the implementation costs outweigh the benefits. That is why we propose, as I mentioned, a de minimis exemption for small authorities to exempt them from the CCT process. Where the estimated annual gross cost of carrying out a housing management defined activity is below £500,000 the authority will be exempt from housing management CCT. On the basis of the current local authority structure, we estimate that about 10 per cent. of the local authorities in England will benefit from this concession; that is, about 35 to 40 small authorities will be exempt.
The noble Baroness, Lady Hamwee, asked about the integration of social services into the CCT programme for housing management. Many, many local authorities, in their wish to gain efficiency, are already able to dedicate the cost and the type of services which are already covered by a housing department, as it were, and are a discrete occupation for a local authority. The provision of the social services element of it is separate. As we see it, there is no reason why these matters should not remain separate. I commend the order to the House.
Lord Williams of Elvel: My Lords, before the noble Viscount sits down, could he respond to the point made by the noble Baroness, Lady Hamwee, about paragraph (c) of the order which states:
"collecting local authority housing rent and service charges, and service charge loan payments arising from such service charges, keeping a suitable record of the sums collected, collecting any arrears, negotiating an agreement for the payment of any arrears, and monitoring compliance with such an agreement".
To follow the question put by the noble Baroness, are the Government seriously suggesting that that function should be put out to competitive tendering to the private sector? I have to say to the noble Viscount that if that is really what the Government intend it would be very odd for any council tenant to be faced by a private individual working for Group 4 or any other organisation to be told, "You are in arrears by this much and if you don't pay up straightaway the lads will come round tomorrow morning and will do the necessary". If that is what the Government are suggesting let them say so. However, the noble Viscount has not responded to the question put by the noble Baroness, Lady Hamwee.
Viscount St. Davids: My Lords, I am sorry that I overlooked the question raised by the noble Baroness. I shall now do my best to answer her. Of course we recognise that rent arrears and tenant disputes are very sensitive areas indeed. We feel that it is for local authorities to satisfy themselves that potential

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contractors will have the capability to take a proper and sensitive approach to such matters as rent arrears and their collection.
Baroness Hamwee: My Lords, before the noble Viscount sits down perhaps I may pursue that issue and then raise another one.
If in putting out its contract to tender and considering tenders a local authority is dissatisfied with the approach that will be taken to such matters by potential contractors, is the local authority in a position to disregard the fact that the costs may be somewhat lower in the tender of a contractor about which it has doubts regarding those matters? Can the local authority give more weight to its concern as to whether the contractors will deal appropriately with matters such as tenant disputes and the collection of arrears? I hope that I have made my question clear to the noble Viscount.
Secondly, will the noble Viscount return to the question of the timetable? He explained that the timetable will be different for individual local authorities. That is no consolation to those which are in the first tranche and which will have to be prepared earlier than others. Can he answer the direct question as to why the Government appear unwilling to allow all local authorities the opportunity to consider the results of the pilot study before going ahead with the programme to the predetermined timetable?
Viscount St Davids: My Lords, perhaps I may return to the sensitive matter of rent arrears. It is for the council itself to examine the methods by which contractors will carry out their obligations and to ensure that any contractor is responsible and capable of carrying out its obligations in the manner which the council deems to be the proper manner for them to be carried out.
Lord Williams of Elvel: My Lords, I am sorry to intervene yet again. Can the noble Viscount specify exactly how the council will put in the tender document, in words of one or two syllables, what is the capability or the right way of carrying out these very difficult functions?
Viscount St. Davids: My Lords, councils already carry out these activities. They know what they are doing. As I said, we have excluded from the CCT process the social aspect—the allocation of the properties and the priorities which are set for a particular type of tenant. That is done by the local authority and will continue to be the case. The management function is the maintenance of the buildings and the collection of rents. The council already knows, within its housing department, the functions which it carries out. When it issues its tender it will be putting out to tender all those non-social aspects. The council knows what it does, and can also put in its own tender on that basis. I do not see that there is a problem.
Lord Williams of Elvel: My Lords, I have not explained myself to the noble Viscount. There are no non-social aspects to the collection of rent arrears. This is a social problem, for all sorts of different reasons,
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which the noble Baroness, with all her experience, and I could detail to the noble Viscount if he wants. There is no non-social aspect.
I am asking the noble Viscount how on earth, knowing what it knows about rent arrears, a local authority can construct a document—which the noble Viscount assures us will be put out to tender in the most sensitive manner—which will be satisfactory and will allow a competitive bid against the local authority itself. I simply cannot understand it.
Viscount St. Davids: My Lords, I am afraid that I do not see the noble Lord's problem. The council already carries out those functions. It knows what it does. It is putting those functions into a tender. I am sorry if I have not understood the noble Lord. I do not wish to be insensitive in this matter, but I understand that the council knows the package which it is obliged to put into the CCT tender. Those are broadly the functions which it already carries out within its housing department.
Baroness Hamwee: My Lords, while we are on this subject, I am not sure whether I missed this, but I hope that the noble Viscount can assist me and say how the local authority is to assess quality in these very different areas. Can it give greater weight to the non-mechanical matters as against tasks such as mending windows?
Perhaps I may give one additional example which may help to set the matter in context. There is a reference in paragraph (n) to the contractor resolving disputes between occupants. Can the noble Viscount explain how that can be dealt with separately from the allocation of properties, given that the resolution of disputes often involves people moving house?
Viscount St. Davids: My Lords, perhaps I may deal first with the question which the noble Baroness, Lady Hamwee, raised in relation to the timetable. I understand that the lessons of the pilot programme are now available to local authorities. They have this information before them in order to help them meet the timetable.
To return to the sensitive issue of rent arrears and disputes, councils themselves will set the standards and policies. Presumably the majority of local authorities are efficient in these matters. They will set the standards and policies which they are already following. Those may be enhanced, because the CCT operation involves consultation with tenants. Tenants will have an input. They may improve the standards. They may say, "No, we want you to do a little more". But these are the standards which will be specified in the contract which is put out to a possible tenderer. It is for the contractor to respond, indicating that he is able to follow those instructions.
I do not see that I can take the matter any further. What we envisage meets the current practice of local authorities, but if a contractor takes on those duties the contractor will continue the process. If the local authority is the best tenderer it will continue to carry on the process.
Disputes are obviously a sensitive area. The allocation of houses remains in the domain of the local

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authority. Once the flat or property is allocated, it is then in the housing stock, which comes under the process of the CCT contract.
Many managers of large private estates are involved in disputes in which the management acts as agent between the tenant and the owning landlord. There is much experience in that area. It is not only local authority housing estates which are subject to the problems. The problems already exist in many areas of housing management in the private sector. I do not believe that housing disputes are a unique experience in the public sector.
I wish that I could be more helpful. I seek to be as helpful as I can.
Baroness Hamwee: My Lords, I am sorry to be tedious. If the noble Viscount wishes to write to me in response to this direct question, I shall understand that that may be a better way to deal with the matter. If a tender is made for, say, £500,000 but the local authority believes that the tender for £600,000 has a better, more sympathetic approach to what I have described as the non-mechanical aspects of housing management, is the local authority able to accept the higher tender?
Viscount St. Davids: My Lords, I would prefer to write to the noble Baroness on that point. I remind her that the tenants play a major part in the selection of contractors. If a management contract which exists at present with a housing authority were moved to a contractor in the private sector, obviously the tenants would set some of the frontiers of the contract—the provision of services and those sensitive issues in which they would wish to be involved. I commend the order.
On Question, Motion agreed to.
Viscount Goschen: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
[The Sitting was suspended from 8.22 to 8.35 p.m.]

Criminal Justice and Public Order Bill
House again in Committee.
Clause 137 [Offence of racially inflammatory publication etc. to be arrestable]:
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 157:
Page 112, line 35, at end insert:
("( ) In section 17 of the Public Order Act 1986 for the words "racial hatred" there shall be substituted the word "hatred".").
The noble Lord said: I do not know whether it will be convenient for me to speak to Amendments Nos. 158 and 159 at the same time as moving Amendment No. 157. They have all been grouped together and it seems to me that that would be a convenient course. I beg to move Amendment No. 157, which stands in my name on the Marshalled List. In one sense, all three amendments are related but in another sense they can be looked at as separate topics.
Amendments Nos. 157 and 158 essentially seek to apply to the law of the mainland of England, Wales and Scotland the position which obtains at the moment in Northern Ireland. They do that by extending under
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Sections 17 and 18 of our Public Order Act 1986 the offence of incitement to racial hatred to include incitement to religious hatred as well.
In Northern Ireland, the Public Order (Northern Ireland) Order 1987 makes it an offence to stir up hatred or arouse fear and defines the terms "hatred" and "fear" by reference to religious beliefs as well as race. On the mainland, the Public Order Act 1986 builds on the Race Relations Act 1976, creating the offence of incitement to racial hatred. That means that in England, Wales and Scotland the only protection that minority groups such as adherents of the Jewish faith, Sikhs, Moslems or Hindus have against serious public order offences is if they are perceived as racial groups rather than as religious groups.
However, with the resurgence of anti-Semitism and in the light of the settlement in this country of a large Moslem population and other religious minorities, the Committee may think that it is particularly important that the law should signal Parliament's recognition of groups who define themselves through their religious beliefs and that the law should offer them some measure of effective protection against words or conduct that deliberately stir up hatred against them because of their beliefs.
I should in a sense declare an interest, because I am a trustee of the Runnymede Trust, which published in January 1994 a report of a distinguished commission which was chaired by the right reverend Prelate the Bishop of Oxford and which included the noble Baroness, Lady Perry, among its members. The report called for the creation of a law on incitement to religious hatred in mainland Britain, as there is in Northern Ireland. The report (I was not a member of the commission) argues that a move of this kind seems to be implied by Article 20 paragraph 2 of the International Covenant on Civil and Political Rights, to which this country is a signatory, which provides that,
"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".
This would give effect in our domestic law to that international obligation, which is at the moment fulfilled only on the other side of the Irish Sea In Northern Ireland.
In the same way, in its report on blasphemy, to which I shall come briefly in a moment when I speak to another amendment, the Law Commission in 1985 made the point that, if it were thought necessary to replace the existing common law Offence of blasphemy with some other offence, then the candidate that the commission suggested would be precisely what is contemplated by this amendment; namely, to widen the offence of incitement to racial hatred to cover religion as well.
I suggest that Parliament should not waste this opportunity to recognise and protect communities whose reference point is their religious belief.
The first and second amendments to Clause 137 have therefore been adopted, as I say, from Section 8 of the Public Order (Northern Ireland) Order 1987. They have the effect of criminalising acts intended or likely to stir up hatred against a group of persons in Great Britain defined by reference to their religious belief. The

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offence would be committed by the use of words or behaviour or the display of written material, by publishing or distributing written material, by public performances of a play, by distributing, showing or playing a recording or by broadcasting a programme. Furthermore, unlike alternatives such as the offence of group defamation, which I know that the noble Lord, Lord Irvine of Lairg, will advance later, this amendment, which focuses on incitement to hatred akin to violence, cannot legitimately, it seems to me, be said in any way to threaten the right to free expression.
One other benefit of these amendments is that they will ensure common standards in this area throughout the United Kingdom. It is hard to see why in Northern Ireland racial and religious incitement should be covered while it is not covered in this part of the kingdom.
Perhaps I may now turn to Amendment No. 159, on the subject of blasphemy, which I am moving. Its purpose is to give effect to the careful, cogent and convincing recommendations made by a majority of the Law Commission chaired by Mr. Justice Peter Gibson, as he then was, in its report published nine years ago in June 1985. That report was made after extensive consultations on the working paper which it had published in April 1981. I am convinced that there is a pressing need for the removal of this antique, outmoded and unnecessary common law crime of blasphemy.
The very existence of a blasphemy law which protects only the tenets of the Church of England is, I suggest, an unnecessary source of grievance among members of the Moslem community in particular, who regard it as discriminatory. It is unnecessary because the Church of England, as the established Church, does not require the protection of a special criminal offence against those who choose to vilify or ridicule its tenets. To contend otherwise would suggest a surprising lack of confidence about the strength of the Church in this country. The Church has not needed to invoke blasphemy law in modern times. It would surely be too defensive to suppose that its abolition could possibly create any threat to the continuing strength and great vigour of the established Church of England.
I also believe that any extension of blasphemy law to protect other religions would be a source of divisiveness and intolerance as between the adherents of different religions, and would menace freedom of expression. This amendment gives an opportunity to Parliament to give a lead on this matter. I recognise that it can happen only if there is support from all parts of the Committee. I also recognise that the issue is sensitive and needs to be handled with courage, sensitivity and care. It should not be rushed, but neither should it be indefinitely deferred.
By way of background I should remind the Committee of what constitutes the offence of blasphemy. At common law, indecent descriptions applied to sacred subjects may amount to the crime of blasphemy. The offence relates to outrageous comments about God, holy personages, or articles of the Anglican faith. It is constituted by vilification, ridicule or indecency.
Between 1883 and 1922, there were only five prosecutions for blasphemy. Since 1922, there has been only one prosecution for blasphemy: the controversial case of Whitehouse v. Lemon, where Gay News published a poem about a homosexual's conversion to Christianity which metaphorically attributed hom-osexual acts to Jesus Christ. The jury convicted by a majority, and the House of Lords confirmed, by a majority of 3 to 2, the trial judge's ruling that the publisher's intentions were irrelevant, and that there was no need for the prosecution to prove any risk of a breach of the peace. Whitehouse v. Lemon was a private prosecution brought without official support. Its wisdom was, as we later read, much doubted by many distinguished Anglicans.
In 1990, because of the outrage felt among the Moslem community at the publication of Salman Rushdie's novel The Satanic Verses, an attempt was unsuccessfully made to persuade the Divisional Court to rule that the offence of blasphemy protects not only the Anglican faith but also Islam. I declare an interest since I defended the publishers, Viking-Penguin in that case—
8.45 p.m.
Lord Elton: Will the noble Lord permit me to intervene? He said "the Anglican faith". Did he mean that, or did he mean the Christian faith?
Lord Lester of Herne Hill: In terms of blasphemy, I meant the Church of England and its tenets, as I explained.
The Satanic Verses case highlighted the sense of unfairness felt by many Moslems that the criminal law gives no protection to their religion.
In its report on the law of blasphemy in 1985, the Law Commission recognised three fundamental defects in the law. The first was that its ambit is so wide that it is impossible to predict in advance whether a particular publication would constitute an offence; the second was that the sincerity of the publisher is irrelevant; and the third that blasphemy protects only Anglican beliefs (the tenets of the established Church), whereas the criminal law is not an appropriate vehicle for upholding sectional religious tenets.
The Law Commission rejected the argument that abolition would lead to the publication of a flood of blasphemous material which would be without any substantive legal control or sanction. They found this argument dubious in itself and entirely speculative as to the likely result of abolition. They found that it was likely that abolition in present circumstances would have no greater effect than the abolition or repeal of other offences which have outlived their usefulness.
The Law Commission also rejected the argument that society might see Parliament's abolition of the common law offence without replacement as in some sense the bestowing by Parliament of its approval on conduct currently penalised by the criminal law. Such an inference, it believes, would be unwarranted. Abolition would be seen, quite properly, as disapproval of an unsatisfactory and archaic offence. It might even be seen as removal of the protection by means of the

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criminal law of a particular religion, a particular form of protection which many in modern society, where people profess a variety of faiths or no faith at all, would regard as unnecessarily discriminatory. The Law Commission lucidly explained why the fact that material might be published which would be offensive—even acutely offensive—to some, and yet not be subject to the criminal law, is not a sufficient argument for constraints upon its publication or availability in our modern, open, democratic and plural society, with its respect for fundamental human rights and freedoms, including freedom of religion, freedom of speech and equal treatment without discrimination.
Although some have suggested that the law should be extended to protect all religions, the Law Commission despaired of any definition that could draw workable distinctions between Baptists, Scientologists, Rastafarians, Anglicans and Moonies. The Law Commission concluded that a reformed law of blasphemy would serve no purpose necessary to a modern society. The claims of public order, morality and the rights of individuals provide insufficient justification.
As regards the protection of public order, with which this part of the Bill is primarily concerned, the Law Commission regarded the existing statutory offences protecting public order as sufficient and pointed out that, if there were a gap in the law as regards incitement to religious, as distinct from racial, hatred, it could be dealt with, if necessary, by appropriate specific amending legislation. That gap has now to some extent been narrowed by the Committee's acceptance of Amendment No. 154R earlier in the debate, because the new offence of harassment will apply to harassment on religious as well as other grounds.
The Law Commission's conclusion is reinforced by the absence of prosecutions for blasphemy in England between 1922 and 1977; by the withering away of the crime in Scotland, where there are no recorded cases since the 1840s and where it is doubtful that the offence any longer exists at all; and by the demise of prosecutions in Northern Ireland, despite the tragic sectarianism there. The scope of the offence in Wales is also uncertain because of the disestablishment of the Welsh Church in 1920. For my part, I agree with the authors of a leading media law textbook, Robertson and Nicol, that a criminal law that holds a publisher strictly liable for an artistic work liable to shock the Christian on the Clapham omnibus is inappropriate to an age in which the creeds of passengers to Clapham are many and various.
The Rushdie affair demonstrated the absurdity of blasphemy law either as a protection for Christianity or, in an extended version, as a protection for all religious susceptibilities. In that case the Divisional Court apparently favoured the abolition and certainly not the extension of blasphemy law to other religions.
If the offence were to be extended—as some people, especially some Moslem leaders or spokesmen, have suggested —to cover attacks on religious doctrines, tenets, commandments or practices other than Christianity, the existence of an extended law of blasphemy would encourage intolerance, divisiveness
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and unreasonable interference with freedom of speech. Fundamentalist Christians, Jews or Moslems could then seek to invoke the offence of blasphemy against each other's religion, doctrines, tenets, commandments or practices—for example, for denying the divinity of Jesus Christ, for denying that the Messiah has yet to come, for denying the divine inspiration of the Prophet Mohammed, and so on. An extended law of blasphemy which applied to all religions could be used as a weapon between Protestants and Roman Catholics in Northern Ireland or by fringe religions such as the Church of Scientology. The fact that the offence was committed only in cases of scurrilous attacks would mitigate but not eliminate the resulting intolerance, divisiveness and unreasonable interference with freedom of expression. There are fundamental differences which would be capable of setting one religion against another under an extended law of blasphemy.
For all those reasons—I apologise for having taking
so long to summarise them—I respectfully submit that
the offence should not be extended but should be
abolished. Therefore I commend the amendment to the
Committee.
The Archbishop of York: I am grateful to the noble Lord, Lord Lester, for speaking to the three amendments together. It seems to me that they hang together. I was a little fearful lest we should look simply at Amendment No. 158 and not see that Amendment No. 159 might be held to be consequential upon it. We need to look at the whole package.
The Church of England is totally opposed to stirring up hatred against any group, whether religious or not. Hence, one cannot possibly oppose the aims of the amendments which the noble Lord put before us. But, before the Committee considers whether the amendments are right and appropriate, we have to ask some questions. What message will their acceptance convey? Will the new proposal work? Will the proposal to have religious hatred as the key to the law adequately replace the present law, even if we grant that the present law leaves a great deal to be desired, as I think we must?
The point is that legislation arouses expectations. If a new criminal offence is put on the statute book without a reasonable expectation that it will prove effective, it may do more harm than good. That is particularly important in this case, where we are very properly seeking to protect and reassure groups which feel themselves to be vulnerable. If the legislation proves to be ineffective or is found to be directed towards the wrong target, such groups, which may be placing great hopes in Parliament to do something for them, will feel particularly let down.
At the height of the Salman Rushdie affair, Archbishop Runcie, as he then was, and I met for quite a lengthy period with a group of Moslem leaders to discuss what might be done. We explored the possibility of trying the extend the law against blasphemy to other faiths in addition to Christianity. We were conscious of the very difficulties which the noble Lord, Lord Lester, outlined. They were difficulties with regard to stirring up religious factional strife and difficulties about the definition of religion.

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But, interestingly, there was no enthusiasm among that group for abolishing altogether the law of blasphemy. It was perceived by the Moslems present that, despite its shortcomings, nevertheless it signals a general presumption that blasphemy of any kind in our society is to be deplored. We were sympathetic towards the proposal contained in the noble Lord's amendments about a new offence on the Northern Ireland lines, but we doubted whether it would in fact do the work intended of it. Northern Ireland itself does not provide an encouraging example. According to the reports of the Commission for Racial Equality in 1982, the clause about religious belief has seldom been used in Northern Ireland. I believe that it has never been used successfully. In a country where religious belief is much easier to define—perhaps too easy to define—than in England and where one would expect offences against it to be relatively common, one surely needs to ask why this clause has not been effective in Northern Ireland before we start thinking about extending it to England.
The difficulties referred to in trying to define religious belief have been much discussed. It does not seem to me that one can solve those difficulties by drawing up lists, leaving juries to decide or passing the problem on to the Attorney General, as some have suggested. In that case there would be grave uncertainties in the law, as there are at present.
The answer to my first two questions, therefore, is that the amendment is likely to leave a false impression and arouse false hopes. It will lead to disappointment because it is unlikely to work. Even if it does work in a limited number of cases, I believe that it does not go to the real heart of the problem as seen by religious leaders. That problem lies in the question whether and how in a society those things and beliefs which are held sacred can be protected against outrage. It is not just about hatred; it is about being outraged.
The problem presents itself in different ways in different religions. Let me repeat that the Church of England is entirely sympathetic to the idea that it is not the Church of England belief or Christian belief alone that should be protected. But we must be careful against offering too many temptations to religious groups who would use any law litigiously. The way these matters work now means that the protection afforded to one faith—a faith that is after all the faith of the established Church and a faith adhered to with varying degrees of enthusiasm by between 70 and 80 per cent. of the population—provides a sort of umbrella from which others can benefit; not directly through the law, but through the presumption against blasphemy which the existence of this ancient legislation still retains within our legal system.
If the crime of blasphemy were to be abolished, we should be saying something quite inviting to many of those people who are looking for opportunities. Let me stress that this is not primarily about protecting Christians. In the end it is about protecting the quality of our society from the erosion of values which we observe going on within it. Many of those values are encapsulated in those things we hold sacred. I want
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therefore firmly to resist any idea of abolishing laws until we are absolutely certain that we have something much better to put in their place.
The noble Lord referred to the 1985 report of the Law Commission. He described it as a "majority" report, as indeed it was. I wonder how many Members of the Committee know that that commission consisted of five members, two of whom—including the chairman— signed the minority report. It was not therefore striking evidence of firm conclusions. Indeed, the commission divided precisely along those lines as to whether there were sacred things which needed to be protected. Of course we must recognise that in 1985 there was a good deal more optimism about the effects of liberalising legislation. We now have more experience of what vicious publicists can do if they are given the chance.
The minority report of the Law Commission argued centrally that there would be a gap in the law if the present offence were removed. Again, it is not about things which are already covered by obscenity laws or laws about hatred. It is precisely about those peculiarly and specially religious things which are so near the hearts of religious believers and many of those who are perhaps not quite so obviously religious believers. The minority report said,
"Those cases could be so serious that, in our view, to be subjected to outrage of religious feelings in consequence of such activities, solely from the desire to inflict that outrage, would be seen by a substantial number of people as an experience little different in disagreeableness, or in its power to cause unhappiness, from that of being subjected to threatening words which do not result in actual violence. Thus it seems to us that abolition without replacement would leave a significant gap in the protection afforded to society by the criminal law which would not be effectively covered by other provisions.
We do not have a viable alternative at the moment. I believe that it would be unwise to rush into changes. However, I hope that the Government will take up the suggestion of the Commission on Racial Equality made in 1992 that there should be a thorough review of the 1986 Act, particularly as this clause applies in Ireland. I hope that the Government also will consult widely in the process. I am sure that the Churches would be most happy to co-operate in any such review and in any attempt to find a better way forward. But I hope that the Committee will reject this particular way.
9 p.m.
Lord Robertson of Oakridge: I wish to speak to Amendment No. 159. By and large I take the line given so well by the right reverend Primate the Archbishop of York. The noble Lord, Lord Lester of Herne Hill, raises an important subject. Indeed, part of what he proposes has some attractions. I simply wish to say that there is a strong case for retaining the common law offences of blasphemy and blasphemous libel. First, what are we talking about? The case of Whitehouse v. Lemon in 1978 led to the following definition of blasphemy:
"Any writing about God or Christ or the Christian religion or some sacred subject in words that are so scurrilous or abusive or offensive that, if they are published, they would tend to vilify the Christian religion and would tend to lead to a breach of the peace".
We are not therefore talking about misuse of the Lord's name as a swear word, wretched though that is; neither are we concerned with mere heresy. We are dealing with

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something deliberately outrageous, calculated to shock and wound. To Christians in particular, whose religion is essentially a personal relationship between the individual and our Lord Jesus Christ, blasphemy can be especially hurtful.
I have heard three main arguments for abolishing the law on blasphemy. First, it is said to be an anachronism because Britain is no longer a Christian country; secondly, it is stated to be an unnecessary restriction on freedom of speech; and, thirdly, it is said to be one-sided. The Salman Rushdie case showed that only the Christian religion was protected by the law.
My answers to those points are as follows. Britain is a Christian country. The very title of our monarch contains the words, "By the grace of God". Christianity permeates virtually all our institutions and our national heritage. Just as in Islamic countries where the law is based on the Koran, most of our law has its roots in the Bible. What is more, most of our people, if they get themselves into a real jam, would ask God to get them out of it, even if they might blame him for getting them into it in the first place. Retention of the present blasphemy laws is an affirmation of our Christian basis
Although we naturally want to preserve the right of freedom of speech, it is not an absolute right and is already curtailed in respect of, for example, libel, slander and pornography. Indeed there are further restrictions in respect of the latter point in Part VII of the Bill. The fact that in this century there have been less than a handful of prosecutions for blasphemy does not mean that the law is of no value; rather it confirms that the law is accepted as a deterrent of last resort against publication of scurrilous attacks on God and the Christian religion.
To extend the blasphemy law to other religions would be to put God on a par with gods of those religions. It would raise the question: which other religions? It would also be impossible to determine what constitutes blasphemy. For example, the doctrine of the Trinity, which may be important to Christians, is an outrage to Moslems whose prime article of faith states that God is indivisible. One might well reach a situation where it was impossible to preach the Christian gospel without risking prosecution for blasphemy.
However, it would be unacceptable if religions other than Christianity could be vilified with impunity. The danger of breaches of the peace would increase. I agree with the suggestion made by the most reverend Primate that a study should be made as to whether the laws on public order should be amended to include incitement to religious hatred, rather than the specific form suggested by the noble Lord, Lord Lester of Herne Hill.
This is an urgent matter, but it is also a difficult and delicate one. It needs more study than can be given by your Lordships to a last minute amendment to the Bill. The legislation resulting from such a study would not replace the blasphemy law but would run in tandem with it.
I have heard it stated that God does not need the protection of a blasphemy law. That is not the point. As the North Korean situation reminds us, we live in a dangerous and increasingly unstable world. The human race now has the capacity to destroy most, if not all, life
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on this planet. We need the protecting hand of God as never before. Even at Dunkirk and on D-Day the nation turned to God in prayer. The last thing we need to do is to end the vestigial honour paid to Him by destroying the blasphemy law and opening the door to unlimited vilification of His name.
Furthermore, if the honour of the name of God were to be denied even the minimal consideration of the existing law, we would be moving a step nearer to a society where nothing was honoured, nothing respected and nothing held to be of value, except the licence of the individual to conduct himself exactly as he pleased, without regard to the interests and feelings of others. I conclude, firstly, that the common law offences on blasphemy and blasphemous libel should be retained. Secondly, the blasphemy law should not be extended to cover other religions. Thirdly, the laws on public order should be reviewed to determine whether they should be altered to protect all recognisable religious groups from threatening, abusive or insulting words or behaviour used with intent to outrage members of those groups. It may well be that action will result from the debate but I hope that the noble Lord, Lord Lester, will not press the amendment to a Division.
Baroness Seear: I have added my name to the amendment. I realise that this is an extremely difficult issue and one on which there will be divided opinion in your Lordships' House. I do not propose to go into the arguments in great detail because they were put extremely fully and extremely well by my noble friend Lord Lester.
However, I should like to make two points. We have today, all around us—and it must be obvious not only in this country but across continental Europe—growing racial feeling, growing bitterness between racial groups and a real danger of a rise of the nastiest kind of nationalism and racial feeling which some of us hoped we had seen the end of 50 years ago. That is a matter of the greatest concern when we are considering the amendments.
Such feeling can be stirred up in the name of religion, and very often is stirred up in the name of religion; and that is used as an excuse rather than a reason for fierce anti-group, anti-racist attacks. Therefore, it is necessary to include action on the grounds of religion along with the other elements which we have legislated against. That is covered in the first amendment.
I want to talk particularly about the second amendment, which deals with blasphemy. We are, whether we like it or not, a multi-faith society Those of us who are practising Christians recognise that we have much to learn from many of the other faiths and that we can only gain from a more tolerant and respectful attitude towards other faiths. Members of those other faiths naturally and understandably resent the fact that the blasphemy laws cover only Christianity.
The most reverend Primate the Archbishop of York said that members of other faiths have expressed some support for the blasphemy laws, but it is surely an anachronism that in the country as it now is the laws cover only one faith. Only yesterday I was at a press conference at which strong feelings were put forward by

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members of other faiths about the attitude in this country towards their faiths. One way to proceed would have been to attempt to extend the blasphemy laws to other religions. But anyone who has looked at the matter carefully agrees that that would be an extraordinarily difficult thing to do. One could of course, as a number of noble Lords no doubt would wish to do, retain the blasphemy laws exclusively to Christianity, but we have to take very much on board the sincerity of the strength of feeling and support for other religions. Some of it is fanatically held and some of it would no doubt be much disapproved of by Members of your Lordships' House, but it is a reality. That should be combined with the growing racial feeling in this country. Last year the number of racially motivated attacks was very alarming indeed. We want to do everything we can to diminish rather than to exacerbate those feelings.
I find it extraordinarily difficult to justify maintaining a blasphemy law exclusively for one religion in a country such as this. I very much hope that Members of the Committee will consider the importance of race and the growing exacerbation of racial feeling which is undoubtedly taking place in this country.
9.15 p.m.
Lord Renfrew of Kaimsthorn: While I recognise the great depth of feeling which this amendment naturally touches upon, I rise to support this raft of amendments. In doing so it pains me to observe that I think there is a very serious error of drafting, which occasions surprise. I should perhaps refer to it first as I think it is an embarrassment for those wishing to support the amendments. The amendment states:
"In section 17 of the Public Order Act 1986 for the words 'racial hatred' there shall be substituted the word 'hatred'".
However, if one deletes "racial hatred" in Section 17 and substitutes "hatred", that leaves one with the other sections of the Public Order Act 1986—Sections 18, 19, 20, 21, 22 and 23—where the term "racial hatred" is used with great regularity and with great clarity. Its use there depends on the definition offered in Section 17. This could readily be rectified. For instance, had the amendment read,
"In section 17 of the Public Order Act 1986 for the words 'racial hatred" there shall be substituted the words 'racial or sectarian hatred'",
the difficulty could be avoided. It is difficult to read the Public Order Act 1986 and to delete the word "racial" from Section 17 without leaving it floating embarrassingly in the subsequent sections.
Lord Lester of Herne Hill: Perhaps the noble Lord will allow me to respond. It is purely a drafting point and does not go to the substance of the matter. I have simply copied the formula used in the Northern Ireland order which uses exactly the same approach. I agree with the noble Lord that a consequential amendment would have to be made to the other sections. However, it does make sense if one looks only at Sections 17 and 18 read together. It does not make sense with regard to the other sections. This is purely a technical and drafting point and I am sure that the noble Lord wishes to
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address the substance of the matter. If the spirit were accepted I am sure the form could be translated into proper language.
Lord Renfrew of Kaimsthorn: I was coming to the substance but I think it is pertinent when we are talking about amendments that they should be correctly drafted. I support the amendments but it is unfortunate that as drafted they would not work satisfactorily. However, it is my purpose to support the amendments although I should like to see them in correct form, so to speak.
I support the points that were made by the noble Lord, Lord Lester and the noble Baroness, Lady Seear, in relation to the offence of blasphemy. It had always seemed a little anomalous to me that, as the noble Baroness said, in a society of many faiths and many persuasions the law of blasphemy should apply specifically to the Christian religion. Although I was previously aware of the position with regard to blasphemy, my attention was drawn to it in much more pointed form as a consequence of the outrage that I felt at the fatwa pronounced on Salman Rushdie by the clerics located in Iran. It seemed to me to be a most monstrous event. It deeply shocked me. I can well understand that in terms of the faith of those clerics in Iran and, indeed, much more widely, Salman Rushdie's remarks could be regarded as "blasphemous", as those Islamic clerics might define the term. Although I was greatly scandalised by the fatwa I found myself very much embarrassed when discussing the matter calmly with friends and students, some of the Islamic faith, when it was pointed out that had Salman Rushdie made such observations in relation to the Christian faith they might well have been regarded as blasphemous and he might therefore have been committing an offence. Therefore, it was not possible for one to say that the fatwa was outrageous or to say, "What a terrible infringement of the principles of freedom of speech" because those people could say, "Your Christian faith is entirely protected because of the blasphemy provisions".
As I thought about the matter more deeply it became clear to me that it would not be appropriate to extend the provisions of blasphemy to cover other faiths for very much the reasons which have already been put forward. It would lead to all kinds of complications, particularly since the views of one faith are often blasphemous when viewed from the standpoint of another faith. Such an extension of the provisions would lead to an impossible contradiction. It seemed to me, therefore, that the only appropriate measure was to abolish the offence of blasphemy altogether. That case has been argued very effectively.
However, I have been very much impressed by the sincerity with which it has been argued that abolishing the offence of blasphemy would be inappropriate. We live in a nation of many faiths and many cultures. Moreover, we live in a nation in which the minority faiths and minority cultures are at present very much in need of protection and support. That is the first point that I want to make.
My second point is that surely, whatever one's faith, the truth does not need the protection of the law. That is

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the most important point. If one is standing up and upholding the truth as one sees it, as the most reverend Primate did, and if it is one's role in life to proclaim a great truth, I really cannot believe that that great truth needs the protection of the law. Surely armed with the breastplate of righteousness, or whatever, one should be able to go forth and argue those principles effectively. If others care to argue against them, even in derogatory language, one should be able to bear it.
The Earl of Lauderdale: Following the noble Lord's interesting observations, is it not the case that the trouble that we are dealing with is that blasphemy, however it is regarded by whatever religion, is often very close to the offence of inciting violence? Something that is blasphemous to one religion or insensitive to another is not necessarily good for society as a whole. Therefore, the case for an overall anti-blasphemy law is very strong, if only in the interests of peace.
Lord Renfrew of Kaimsthorn: That point might carry some weight were it not, I believe, for the effectiveness of Amendment No. 158, which is part of this raft of amendments. That amendment introduces "religious belief as one of the criteria. It would provide that "racial hatred" or "racial sectarian hatred" would mean hatred against a group of persons defined also on the basis of religious belief. Under Section 18 of the Public Order Act it would remain an offence for somebody to intend to stir up racial or religious hatred in circumstances where racial or religious hatred is likely to be stirred up. I thank my noble friend for his intervention, but it highlights the fact that that point is adequately dealt with in Amendment No. 158.
I have made the points that I wished to make. Not only is the offence of blasphemy, as currently defined, inegalitarian and insensitive to those minorities whose sensitivities so much require our support and attention at the present time but it is unnecessary. When it comes to the stage of stirring up hatred or inciting violence, that is very well covered by the existing law and, in particular, would be well covered by Amendment No. 158. I warmly support these amendments.
Lord Monson: I have an open mind about the blasphemy laws and therefore I shall confine myself to the first two amendments spoken to by the noble Lord, Lord Lester. The trouble with widening a law to include questions of belief in addition to questions of irreversible fact is that, logically, one must include deeply held political beliefs as well as deeply held religious beliefs, in particular as the border line between the two is not always hard and fast.
Moreover, one cannot pick and choose the religions to protect. That is unlike the Moslems who, in theory at any rate, afford special protection to those they term "the people of the Book"—adherents of Islam, Judaism and Christianity—while giving themselves carte blanche to persecute, when they feel inclined, those who fall outside that category; notably, the Baha'is. In other words, the Moonies, the Scientologists and the worshippers of pagan gods at Stonehenge on Midsummer's Day must also be included. I do not
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suggest for one moment that these religions, or quasi-religions, should be persecuted—far from it. However, it is worth pointing out that the amendment has wider implications than might seem evident at first sight.
Lord Campbell of Alloway: Perhaps I may make a brief intervention in order to try to clear the air a little. This Bill is concerned with the maintenance of public order. The maintenance of the law of blasphemy is not conducive in the climate of our current society to the maintenance of public order. The reasons for that have been given by more than one Member of the Committee, in particular in the careful and sensitive speech of the noble Lord, Lord Lester.
The next point that arises is whether we should extend blasphemy to cover all sects of the Christian faith in our country and all other religions. As I understand the law, it covers only the Church of England; the established Church. I also understand that it is common ground between the right reverend Primate, the noble Lord, Lord Lester, and all Members of the Committee who have spoken that extension is not on.
We then come to abolition. As regards that issue the right reverend Primate says—as he would say and naturally must say—"No, we can't abolish this. It encapsulates values". But the argument on the other side is: by encapsulating values, does it afford any protection to society? Is that encapsulation relevant to the maintenance of public order? One can only speak personally, but I do not believe that it is. Other noble Lords and the noble Baroness, Lady Seear, do not believe that it is in the climate in which we live.
Many noble Lords wish to speak. I wish not only to congratulate the noble Lord, Lord Lester, on the way in which he introduced the matter but I agree with him also that this is not a matter with which we can deal adequately today at this hour. It is so important that it requires further study.
9.30 p.m.
The Lord Bishop of Oxford: I am grateful to the noble Lord, Lord Lester, for his amendments, especially Amendments Nos. 157 and 158. Hatred of a person on religious grounds is as ugly as hatred on racial grounds. The law should offer protection with regard to both forms of incitement. As the noble Lord pointed out, the present law affords protection to people only in their racial identity and not in their religious identity.
As the most reverend Primate the Archbishop of York said—and I agree with him—there is something to be said in favour of the present law of blasphemy to which Amendment No. 159 refers. I believe that more can be said for it than is commonly supposed and—I say this with all due respect—perhaps more than some noble Lords who have spoken so far have recognised.
It should be abolished only if something better and workable can be put in its place. Nevertheless, the Church of England would certainly wish the protection afforded to its own members to be extended more widely, if that can be done. The Church of England is as fully committed to respecting the deeply held convictions of Jews, Moslems and other religious

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believers as it is to its own beliefs. In that light, the present law seems too narrowly focused and does not reflect the kind of multi-faith society which we now enjoy, as the noble Baroness, Lady Seear, and other noble Lords have rightly pointed out.
The question is whether the amendment proposed by the noble Lord, Lord Lester, can achieve that wider protection. I hope that it can. If it is the judgment of your Lordships' Committee that in the present form it cannot, then I hope that it will be possible to bring forward legislation standing in its own right based on further work in that area. But whether through this amendment or through different legislation based on further work, I believe that we should make legal provision to outlaw incitement to hatred of groups based on their religious identity as much as hatred based on their racial identity.
Lord Renton: I hope that I may be forgiven for saying a few words, although I am sorry to say that I missed the first part of the debate.
I wish to refer briefly to Amendment No. 159. It is regrettable that blasphemy is included in the same amendment as the matters dealt with in paragraphs (b) and (c). Disturbing a religious service or religious devotions of any faith should be a distinct offence. All members of society, whether they are atheists, agnostics or whatever, should at least respect others who wish to worship. Therefore, I should be strongly opposed to any provision which abolished as a distinct offence the disturbance of a religious service.
I feel the same about the offence of striking a person in a church or churchyard. Surely we owe it to the dead lying beneath the earth not to have fights around their tombs. Therefore, although we should be grateful to the noble Lord, Lord Lester, for giving us the opportunity to discuss these matters, I hope that this will be regarded as an exploratory debate.
Lord Ashbourne: I am glad that we have the opportunity to debate briefly the important issue of blasphemy as a result of the amendments in the name of the noble Lord, Lord Lester. However, I should prefer a longer discussion at another time when we can do justice to the subject. I share some of the noble Lord's concerns, especially those about the lack of protection for those of other religions whose feelings—and, indeed, their well-being—may be threatened by deliberately provocative oral or written statements.
Religion is a deeply personal matter. As a society we need to show respect for different religious traditions, as the noble Lord, Lord Renton, has just so clearly expounded. Therefore, there are attractions in the proposal in Amendments Nos. 157 and 158 to extend the Public Order Act 1986 to include the offence of incitement to religious hatred. However, I disagree with the noble Lord's proposal that the various common law offences relating to blasphemy should be repealed. Members of the Committee may be aware of my profound concern to protect the Christian traditions of this country. Our Parliament, monarchy, education system and other aspects of our national life are rooted in the Christian faith.
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As many Members of the Committee have expressed concern about the non-Christian religions, I should like just to make the point that we are talking here about less than 5 per cent. of the population. Of course, Members of the Committee must judge for themselves on the matter, but in my humble judgment we are not talking about a large percentage of the population. I therefore believe that it is entirely right to continue to accord the Christian religion a special place in our society.
However, giving Christianity a special place in our society —which is why I want to retain the common law offence of blasphemy—does not mean that other religions should go unprotected. I do not see why we cannot retain the blasphemy law but possibly add a new offence or offences such as those mentioned in Amendments Nos. 157 and 158. Should the noble Lord, Lord Lester, press the matter to a vote, I have to say that I would vote against Amendment No. 159 because I believe that we should retain the common law offence of blasphemy.
Lord Desai: As a person who is neither a Christian nor someone who was born into one of the religions of the Book I hesitate to speak; indeed, I am not even very religious. However, when the noble Lord, Lord Renfrew, spoke a very interesting contrast emerged in my mind. We have, quite rightly, decided to protect Salman Rushdie against the possible effects of the fatwa. That is not because he may not have blasphemed against the religion according to people who strongly hold that religion but because we think that the consequences of blasphemy should not be visited as they were threatened to be.
As I recall, in the most recent case of blasphemy which was successful in this country a magazine was shut down. We had an attack on freedom of the press because someone brought a case of blasphemy. All it was was a poem in which someone said something which offended someone else. The common law case was successful and, as I said, the magazine had to be shut down. It is a paradox when, quite rightly, one can spend millions of pounds on protecting the freedom of a writer and yet shut down a magazine just because the blasphemy was against the Christian religion rather than against Islam, Hinduism or Buddhism.
I strongly urge against extending the blasphemy provisions to all religions. If one only looks into the number of religions that exist—and they are of a terribly dubious variety—one would find oneself in a morass. As far as I understand it, though I may be wrong, I believe that the common law offence of blasphemy was really meant to prosecute Christians who blasphemed against Christianity. People can blaspheme against their own religion but they cannot blaspheme against other religions. That is why I believe Amendment No. 158 covers precisely the case of people insulting someone else's beliefs. I believe that Amendment No. 158 would protect all religions. I believe that Amendment No. 159 should be adopted along with it. In that way the law of blasphemy, and especially the invidious effect it is having currently, could be removed.
Many Members of the Committee have said that this is a Christian state and that our laws are rooted in

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Christianity. I would say, as Bagehot said many years ago, that there is a decorative aspect of the constitution which is Christian and an effective aspect which is not Christian. I do not think that one would not have the allegiance of people who are either non-Christian or non-religious as regards believing that our laws are derived from the Christian faith. While I admit that the decorative part of the constitution has Christian roots, I do not believe that any of us seriously believes that our laws derive from that faith.
Viscount Mountgarret: I am afraid that I cannot agree—it pains me to say so—entirely with the most reverend Primate, with whom I would be loath to cross swords, particularly bearing in mind where I come from. I find it rather sad that the noble Lord, Lord Lester, has grouped these three amendments together because, like other Members of the Committee, and my noble friend who has spoken, I believe that Amendments Nos. 157 and 158 stand on their own, as distinct from Amendment No. 159. Other Members of the Committee have made reference to this and I wish to add my voice to those who would support the first two amendments. Hatred is hatred the world over. It either is or it is not and it matters not whether it is racial hatred or any other sort of hatred. Therefore, in my view it is correct to delete the word "racial".
I also believe that religious belief encompasses all kinds of religion which should be tolerated not only in our society but in every society. In my view that matter has nothing whatsoever to do with colour. I reiterate that I believe those two amendments should stand on their own and should be supported. However, as the most reverend Primate said—I agree with him 100 per cent. —it is probably worth while suggesting that these problems should be looked at with a view to seeing whether it is desirable to carry out the proposals in Amendment No. 159. But I for one cannot see the advantage of taking something away which has stood us in perfectly good stead without having something constructive to put in its place. Therefore I am unable to support Amendment No. 159.
Lord Elton: On the matter of the need to replace whatever is removed, I hope the Committee will remember what the nature of blasphemy is, which is what I have been sitting here asking myself. It differs from other sorts of libel and insult not simply because it is an insult to the Creator but because for Christians who love God it is deeply upsetting to have Him insulted. Anyone who has loved anyone and who has heard that person being insulted knows the awful shake to the system that gives and the volatile reaction one is in danger of making. In that context let us remember what the most reverend Primate has said about sending signals, and particularly signals in the context mentioned by the noble Lord, Lord Renfrew, who I believe suggested that there was some sort of parity of weight between afatwa which permits the assassination of someone anywhere in the world and a common law offence which permits a modest punishment in the country in which the offence is committed.
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Therefore, I hope that the Committee will regard this as a matter to be dealt with with great delicacy and not in haste, and will take the advice of those who said that we should reflect on the matter before we move.
9.45 p.m.
Earl Ferrers: I rather fancy that we may be here for a long time and I do not want to truncate the opportunity for anyone to have their say. But it may be helpful if I put the Government's view at this stage.
The noble Lord, Lord Lester, has drawn us into an area of great sensitivity and provided the opportunity for an interesting debate. It is an area of sensitivity in which our beliefs and our relationship with the Church and the Almighty, and people's reactions to that, can all interact with the criminal law and the law of the land. We must tread with great care.
I agree with the most reverend Primate the Archbishop of York when he asked what message would be conveyed if we passed amendments such as this. He said that legislation invites expectations and we should not encourage hopes which may not materialise. I respect his caution in that respect.
Of course we all respect the importance of ensuring that the courts can deal effectively with those individuals who try to incite hatred against others. The Government utterly condemn any attack or criminal act which is motivated by such hatred. We are well aware of the effect which such crimes can have both on the victims and on the confidence of the communities of which they are a part.
However, we are not convinced that the amendments proposed by the noble Lord, Lord Lester, reflect the principal mischief of inciting hatred because of a person's race. I fear that the amendments would be difficult to operate without giving rise to problems which might be just as great as those which they seek to solve.
The amendments seek to extend the current offence of incitement to racial hatred under Section 17 of the Public Order Act 1986 by making the offence also cover hatred on the grounds of religious belief. At the same time Amendment No. 159 would abolish the existing common law offences of blasphemy and blasphemous libel.
In effect that would enact the recommendation of the minority of the Law Commission in its 1985 report Offences Against Religion and Public Worship. In 1985 the majority of the Law Commission recommended that the blasphemy laws should be repealed and should not be replaced by anything. The majority of respondents to the Law Commission's earlier working paper on this subject seem to have favoured retaining the blasphemy laws.
The Government did not accept either of the Law Commission's recommendations on that occasion. The strong views which were and are held on all sides were illustrated by the fact that, very unusually, as the most reverend Primate reminded us, a minority of two out of the five commissioners made their own separate recommendation. In our view it would be a mistake to legislate on a matter such as this in the absence of a wider consensus as to the best way forward.

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If anything, our view has been strengthened by the increased sensitivity of this subject which has been caused by the subsequent controversy over the publication of The Satanic Verses and the issuing of the fatwa against Mr. Salman Rushdie, to which my noble friend Lord Renfrew referred and by which he was so offended, as were many others.
It is already an offence under Part III of the Public Order Act 1986 to incite hatred against a group of people on the grounds of their colour, race, nationality or ethnic or national origin. The courts have held that some religious groups—including Sikhs and Jews—are also ethnic groups and are therefore covered by that definition.
Protection against incitement to religious hatred has now been sought by some other groups which are not ethnic groups, particularly by the Moslems. However, we are not aware of any evidence to suggest that there is a significant problem on the mainland of Great Britain either of discrimination or of incitement to hatred on the grounds of a person's religious beliefs as opposed to his racial or ethnic background, where there is a problem. The position in Northern Ireland is, of course, different and that is reflected in the law there.
The evidence which has been presented to us suggests that understandable distress is created when adverse comments are made about particular religious beliefs or religious practices. But that is not the same as incitement to hatred. And, what is more important, it is something which is faced by all religious groups, living in what is regrettably becoming a largely secular society.
Our institutions, leaders, and beliefs may all be held up for criticism or ridicule in ways which cause offence. There is plenty of evidence of that. It is a fact of life which I personally find less than glorious but that is the price we pay for living in a society which respects freedom of expression. It would, I believe, be very dangerous if we were to start to curtail our freedom of expression on the grounds that the views expressed may be offensive to some.
The existence of the current law of blasphemy, and the special protection it gives to the beliefs of the established Church, may certainly be criticised. But it is worth bearing in mind that the law does not punish the simple expression of views which are considered to be offensive, blasphemous or heretical by believing Christians, and the law does not protect the Church of England from criticism or even derision. Indeed, the scope of the law of blasphemy is so restricted that only one successful prosecution, as the noble Lord reminded us, has been brought in the past 70 years, and that was a private prosecution.
Governments have held to the view that we should only begin to curtail freedom of expression when there is the likelihood, and intention, that the result is likely to produce a threat to public order. We do not think that it would be appropriate to change the law in order to punish those who merely offend other people's religious sensibilities.
Even if we were persuaded that there was a significant problem of incitement to religious hatred,
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any proposal to bring religious belief within the scope of the Public Order Act would come up against the difficult question of the definition of religion. Race is a relatively simple matter. It is a matter of fact. People are what they are because of what they are. But religion is not nearly so simple. It is a matter of personal belief and personal assent. Clearly, mainstream Christianity, Judaism, Islam, Hinduism and Sikhism are major world religions, and they would be protected under the amendment.
But how would we offer protection to some smaller belief groups such as, for example Jains, Baha'is, Farsees and small sects of major religions; for example, some of the independent Christian groups such as the House Church movement without at the same time protecting extreme sects and cults from the severe criticism, and even attacks, which they may rightly deserve? Members of the Committee need only think back to the siege at Waco in Texas which centred around a religious group, or the mass suicide by Bob Jones and his followers in Guyana, to appreciate the potential difficulties.
There are other minority cults which advocate what amounts to the sexual abuse of children as an alleged religious practice. If the noble Lord's amendment were accepted, anyone who sought to write a critical leading article on the anti-social beliefs or criminal practices of such groups might be caught. I think that that would really not be desirable.
The Government are in discussion with different faith communities on these difficult problems. Only recently my right honourable friend the Home Secretary discussed them at some length with a group of Moslems. We will continue to listen and we are ready to look at evidence which demonstrates that there is a significant problem of inciting religious hatred as opposed to offending against religious sensibilities. But at the moment I am bound to say that the Government see too many practical difficulties and—I agree with the most reverend Primate—too little evidence of a real problem to justify advising the Committee to accept the amendment.
Lord Lester of Herne Hill: It has been an illuminating and reflective debate on a complex subject. I am grateful to all Members of the Committee who have participated. I share fully the values expressed by the Minister in his reply, especially his concluding observations about the right to free speech in a modern, open, liberal society. Nothing that I h'ave put forward could possibly be justified if it represented an unnecessary interference with free speech. That would be the last thing I would intend, just as I would not intend in any way to encourage any scurrilous attack on anyone's faith or beliefs.
If I may say so with respect, I have been impressed by the counsels of caution which we have heard from the most reverend Primate the Archbishop of York and, with different emphasis and I suspect from a slightly different approach, from the right reverend Prelate the Bishop of Oxford. The last thing I would wish to do is to rush in on such a complex area. However, I believe that the subject is and will continue to be a running sore in this country, which now has over 1 million Moslems,

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until some government—I hope this one—finds the means of achieving a consensus among rational people, across political parties and across religions. We must find some way of ridding ourselves of an offence that has only been used once in 72 years in a private prosecution. It is really not necessary to protect the established Church of this country for the reasons given.
I am sure that I shall win popularity from all sides of the Committee if, having heard the debate, I say that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 158 and 159 not moved.]
Clause 137 agreed to.
10 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 159A:
After Clause 137, insert the following new clause:
("Racially motivated violence.—
(1) A person shall be guilty of an offence of—

(a) racially motivated manslaughter,

(b) racially motivated grievous bodily harm,

(c) racially motivated wounding with intent,

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

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

(2) In this section "racial motivation" shall mean motivation on the grounds of colour, race, nationality (including citizenship) or ethnic or national origins.
(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding five years in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault, assault occasioning actual bodily harm, or assault occasioning grievous bodily harm respectively.").
The noble Lord said: I rise to move Amendment No. 159A, the first of a number of amendments in my name designed to combat the rising tide of racism in the country. To those who may argue that the law should keep out of these areas, I say this. True, the law is no magic panacea. But it is a powerful weapon in promoting a plural society respectful of group diversity and committed to equality and full participation by every group in our political processes and national life. That is the rationale of our existing anti-discrimination legislation. Above all, the law can embody respect for the individual dignity and worth of every human being, regardless of race, colour or creed. I believe that there may be much support for the amendments in the Committee, with its broad experience and long memory.
In 1993, 8,779 incidents of racial attacks and harassment were reported to the police in England and Wales. That represents a 100 per cent. increase over 1988. Since only a small percentage of racial incidents are reported, their actual number is much higher. The carefully researched British Crime Survey estimated that in 1991 the number of incidents of racially motivated crime against adults was between 130,000 and 140,000. The past two years have seen 14 murders of blacks and Asians, some particularly vicious. Even the figure of 130,000 to 140,000 incidents may be too low. If the survey had not excluded the Jewish community and a large number of so-called low level incidents of racial harassment against blacks and Asians, the figure would have been higher.
Racial violence is directed against its victims not because of what they happen to own or have done but because of what they naturally and inescapably are. Racial violence is therefore in a category of its own. First, the violence is directed against the victim not as an individual but as a member of a specific community. It injures and humiliates the victim because of the uncontrollable factor of birth.
Secondly, there is a political dimension to a racially motivated attack. The violence signals a refusal to accept a specific community as members of the whole community, entitled to equal acceptance and respect.
Thirdly, racial attacks arise from racism. Racism is the enemy of the values of a liberal democracy, which the law should uphold. I regard it as entirely rational for the law to recognise a distinct category of race specific violence, thus reflecting the community's collective commitment to equal citizenship. It would give a signal to the ethnic minorities that the state is serious about stamping out racist violence. To introduce these offences is not to favour blacks and Asians but to bring their protection up to the level that is enjoyed by the rest of the community; to equalise them, not to privilege them.
The Minister in the other place suggested that we did not want to bring about circumstances in which a mugged pensioner could say, however unfairly, that if he had been black his assailant would have had to receive a much heavier sentence, and asked why we should introduce a potent source of misunderstanding. That argument should be rejected. To declare through the criminal law that there is a distinct category of racially motivated offences against the person is not an affront to victims of non-racist crime, whatever their colour or creed. It is no more than a legislative signal to a mature society of the threat from racism and a determination to deter it. There is a rise in extremist associations in continental Europe and in Britain. The time is ripe to create these new offences.
Of course, an argument against the introduction of these offences is the imposition of an additional burden of proving not only that the offence occurred, but also that it was racially motivated. No doubt it will be said that racial motivation will be difficult to prove. That does not, however, mean that the offences should not exist. There will be no risk of total acquittal from a failure to prove racial motivation. In a manslaughter case, for example, the first count in the indictment would allege manslaughter, and the second racially motivated manslaughter. Obviously, there could be a conviction on the first and an acquittal on the second, or conviction on both. It would be for the jury to be satisfied of racial motivation, just as it is for the jury to decide dishonesty or other difficult questions of intent.
Just as those who opposed indirect, as distinct from direct, racial discrimination under the Race Relations Act 1976 on the grounds that it could not be proved were shown subsequently to be wrong, so also, I believe, will those who oppose these new offences on the grounds of the difficulty of proving racial motivation be shown to be wrong.
I recognise that the Government may say that judges are already expected to take aggravating factors into

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account when sentencing and that those include racial hostility. It is, however, for the judge to decide whether or not to take racial motivation into account in passing sentence. Our argument is that this should not be a matter of discretion; that racially motivated violence is a distinct, recognisable evil which should be declared by the criminal law to be a distinct offence.
If we were to create these new offences, we should be in good company. Several American states have enacted statutes providing for a greater penalty for racially motivated unlawful conduct. France's Interior Minister recently announced his country's intention of introducing legislation providing two years' imprisonment for crimes relating to racial hatred and violence. All liberal democracies under threat from racism should recognise the need for these new offences, and not least ourselves. I beg to move.
Lord Renfrew of Kaimsthorn: I must apologise to the Committee. Circumstances dictate that I shall need to leave the debate on this series of amendments before it is concluded. I hope that the Committee will allow me to say that I should particularly have wished to support also the amendments of the noble Baroness, Lady Flather, Amendments Nos. 159F to 159H, although I realise that they are not grouped with this series.
I am a little overwhelmed by this series of amendments, with many of which I feel in sympathy. I refer not only to Amendment No. 159A, which we are now discussing, but also to Amendments Nos. 159B, 159C, 159D and 159E; and to Amendments Nos. 159F, 159G and 159H in the name of the noble Baroness, Lady Flather. The Committee has already approved Amendment No. 156B, which was moved by the noble Earl, Lord Ferrers.
I am not quite sure which of the amendments one should support. I feel that to pass them all might be more than is required in the circumstances. I should simply like to make the observation, which I am sure that many noble Lords would echo, that we do face the terrible tide of racist violence referred to by the noble Lord. I am sure that all sides of the Committee agree that we must be more successful than we have been so far in turning that tide. It is a tide which, as has been noted, is seen in full force not only in this country but on the Continent of Europe.
I am not quite certain of the right measures to take. We are all well aware that simply passing laws or introducing new offences is far from altogether solving the problem, although it may well be a step in the right direction. I have little doubt that my noble friend the Minister will argue that already existing legislation goes much of the way that is required and that it has been or will be strengthened by the amendment on harassment which has been accepted this evening.
However, several Members of the Committee rightly made the point that, although the amendment had many merits, it did not specifically focus on and target racial offences per se. Indeed, it did not intend to do so. The noble Lord made very clear that it was the Government's intention that the situation in relation to racial hatred would be improved by accepting that
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amendment. I have no doubt that such is the case. But I am also persuaded that the present amendment, or something like it, is very desirable. It may well be that the amendments of the noble Baroness, Lady Flather, offer the right answer.
I do not feel able this evening to indicate what may be the appropriate approach. I very much hope that at the conclusion of the debate on these amendments it may be thought possible for just one or two amendments to be introduced at Report stage which might encapsulate the wisdom that has arisen from it. I feel that it is necessary —although much has been done already by the Government's amendment, I hope that my noble friend the Minister might be able to take note of this point—for us to send out some signal by further addressing explicitly racially motivated offences. I hope that either this amendment or something like it will emerge before the Bill reaches the end of its passage.
Lord Lucas: This is not a good amendment. It would make people who have committed racial offences very difficult to convict. It is an offence on which it is intrinsically hard to convict. If people were charged with such offences, it would make it less likely that they would be convicted of the junior offence. Their counsel would doubtless throw doubt on the whole set of charges on the basis of the part of the offence that was hard to prove, which would be racial motivation. It would tend to be divisive because it would offer something to one section of the community which was not available to another, as the noble Lord, Lord Irvine, pointed out, and it would be extremely disappointing to those groups which it was intended to help because it would result in few convictions and more guilty people going free.
However, there is a problem with racial offences. If we are to address that problem, we should follow the Government's line and look at a general offence. That general offence is surely one of committing a crime which induces fear in a substantial part of the population. If someone shoots my next-door neighbour, I might feel a little afraid, but that it is probably just his affair. If someone gets up an organised campaign to shoot hereditary Peers, I have reason to feel more afraid, even if I am not the immediate object of attack.
There is a general class of crime which is directed at more than just the immediate victim. That should be the subject of additional punishment, but to my mind most suitably along the lines suggested by my noble friend Lady Flather. I believe that that would solve the problem that this amendment seeks to address.
Lord Lester of Herne Hill: I agree with the object of Amendment No. 159A. I agree also with the noble Lord, Lord Irvine of Lairg, that there is a serious social evil of racial violence in this country which is increasing and must be effectively combated. I agree also that the criminal law must be effectively enforced in a way that has not been done in the past.
I understand fully the reasons behind the amendment, which I support in principle, but I feel that I must express one note of caution from my experience as a recorder trying cases in which there have been clear racial overtones. Much to my disappointment I have

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found that whenever the prosecution brought racial motivation into the prosecution case, or when I, as a judge, in summing-up to the jury attempted to bring home to them the fact that there was a clear racist background to the offence, with depressing regularity juries would acquit accused persons who seemed to be clearly guilty of the offence.
My anxiety about introducing this offence is simply that if two offences are placed on the indictment, one with a racial motive and one without, a jury may perversely be led to acquit the guilty, even of the less serious non-racially motivated offence, through sheer prejudice. Having said that—and I feel bound to give the benefit of that experience to the Committee—I wholly agree that it is necessary to take extremely effective action against racially motivated offences of this character. I am quite sure that the Lord Chief Justice and other senior judges will wish to ensure that judges are able to sentence much more severely those who commit offences with racial motives.
I do not wish to say anything this evening that would give the impression that I was not four-square behind the noble Lord, Lord Irvine of Lairg, in what he seeks to do. For that reason I support the amendment but with the note of caution that I expressed.
Lord Renton: From my own experience I feel bound to endorse what the noble Lord, Lord Lester, said. I shall come back to that in a moment. I wish also to endorse what was said so wisely by my noble friend Lord Lucas. We must remember that in every criminal offence under our law we have to prove the fact of the offence having been committed as well as the criminal intent. But that is the more difficult. The facts are generally not too difficult to prove.
When an accused person and whoever is defending him finds that he will risk up to five years being added to his sentence if it is proved that he was racially motivated, he may say that he committed the offence but that it was not racially motivated. If the jury are told by defending counsel, "Be careful about your decision in this case because if you find that it was racially motivated the accused will perhaps be given an extra five years on his sentence", what will be their reaction?
I am sorry to say that, though I respect the purpose behind the amendment and the reasons which prompted its tabling, it may be self-defeating.
Lord Monson: All unprovoked attacks on anybody, for whatever reason, racial or otherwise, are deplorable and should be severely punished if and when the culprits are caught—but there is the rub.
On matters pertaining to almost anything other than race, the Opposition Benches normally criticise the Government for constantly proposing longer and longer sentences for a wide range of offences, pointing out, quite justifiably, that the important thing is not longer and longer sentences but certainty of arrest and conviction. Therefore, in a sense they are behaving illogically in suggesting a totally contrary course here.
Moreover the first amendment goes extraordinarily far, in that it provides for an additional five years for common assault if that common assault be racially motivated—and race includes nationality.
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Consider the situation after an ill-tempered football match or rugby match in which there have been many fouls. People are congregated in a pub and somebody says, "It is typical of you French (or you Welsh) to commit fouls like that!" and a fight starts. That situation would fall within the definition of a racially motivated assault. Is it to be supposed that someone should get an extra five years for punching someone on the nose in those circumstances?
I could make other criticisms of the amendment, but that is one of the most important points, and with that I conclude my remarks.
10.15 p.m.
Earl Ferrers: The amendments deal with harassment, assault and hatred on the grounds of race or religion. I share the sense of anguish of the noble Lord, Lord Irvine, over the appalling incidents and I share his wish to take action which would put a stop to at least some of them. Before I respond specifically to the amendment, perhaps he will permit me to make one or two general points.
The Government have set out their position repeatedly and unambiguously. Our abhorrence of racial attacks, assault, and hatred has been stressed at every opportunity. But this is not just a matter of words. The Home Secretary has repeatedly given an undertaking that where we can see an effective way of improving our response to these crimes we will take it. That is why we have brought forward our amendment on intentional harassment, which your Lordships approved earlier.
These are issues of tremendous social concern. They are also issues of immense complexity for legislation. We need to find measures which are genuinely effective, which do not create anomalies within the criminal justice system, and which do not promise to minority communities hopes which cannot turn into realities— that would be the cruellest blow of all. From our own attempts to bring forward a clause on harassment that would work, we are only too well aware how difficult it is to meet those requirements.
I hope that the noble Lord, Lord Irvine, will forgive me if the tenor of my comments seems to be somewhat negative; it is not supposed to be, it merely reflects the difficulty of the subject and not any lack of willingness to make progress. I am afraid that we cannot just wish the difficulties away.
I should like to turn specifically to Amendment No. 159A. The penalties set by Parliament for different offences are designed to cover even the most serious examples. It is for the judge to consider any aggravating or mitigating factors in deciding on the sentence appropriate in any given case. Racial motivation can be, and often is, taken into account as a seriously aggravating factor. Your Lordships may recall the case of Fiaz Mirza, the Asian mini-cab driver who was murdered by his passengers. The two men who were responsible boasted of what they had done and why they had done it; it was because of the driver's race. The account was so appalling that the mother of one of the men gave evidence against him. The judge referred specifically to the racial element in his summing up. He sentenced the murderers to life with a recommendation

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to serve 22 years. As your Lordships will know, that is way above the normal tariff, and it clearly reflected the appalling circumstances of that case.
Violent offences are deplorable whatever reason for which they are committed. However, I cannot see that it is right that there should be a penalty greater than that which Parliament has provided for violent offences generally. It should not be available specifically and only where racial motivation is proved.
My noble friend Lord Renfrew wanted offences specifically against racial motivation. If the amendment were accepted, I would agree with my noble friend Lord Lucas that Parliament would in effect be saying that racial attacks were in themselves more objectionable than any other form of attack and were to be punished more seriously than any other attack which might be made for any other reason. The amendment would in effect say that, however intolerable, beastly or heinous an attack against a disabled person, an old lady or even a child might be, it could never be as wicked, nor should it be punished as severely, as an attack which had been committed with racial motivation in mind.
If, for example, a black person and a white person were to be victims of similar assaults, I would question whether it would be right or even equitable for the assailant of the white person to get a lesser sentence simply because his victim was a white person and not a black person. The law provides for a range of penalties and it sets the maximum which can be allowed for any one type of crime. The maximum allows for the worst type of offence and the worst type of offence in this instance could well be reached by the fact that the assailant had been racially motivated in his crime. But we do not need more than that.
Not only do I think that the new clause would be wrong in principle, but it would have curious results. In the case of common assault, the offender would face a prison sentence 10 times greater if his offence were shown to be racially motivated than the current maximum penalty for any other form of motivation. For actual bodily harm, the sentence could be doubled. I deplore racial violence as much as anyone else and I want to see the perpetrators dealt with severely by the courts. But the way to achieve that is to make sure that at every stage of the process racial motivation is flagged up, evidence is collected and evidence is put before the courts. It can then be taken into account as an aggravating factor for sentencing. There is work to be done to make sure that all this happens as we would wish but I think it would be wrong in principle to legislate in such a way as to create a separate class of violent crime which is racially motivated, which is worse than all other types, as this amendment attempts to do.
Lord Irvine of Lairg: There is plainly a difference of principle between myself and the noble Earl. He gave an example of an attack on a disabled person. That is undoubtedly heinous. But the disabled person is attacked, no doubt, because he is vulnerable. He is not attacked because of hostility to the disabled per se. I
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submit that criminal attacks on an individual because he or she is a member of a racial group are a distinct evil which we should legislate against.
Lord Renton: Does the noble Lord agree that white people are also a racial group?
Lord Irvine of Lairg: White people are a racial group. If there were a racially motivated attack upon a person on the ground that he was white, that would be covered by these offences if they were to be brought into law. To fear—because that is what it comes down to —writing racial motivation or racial harassment into the statute book is to put one's head in the sand and to deny the facts of life around one. It is also to deny the educative effect of the law and the signals that it is capable of sending.
I welcome the support in principle of the noble Lord, Lord Lester, for the amendment. I have perhaps a greater faith in the jury than he has. My experience as a Recorder was to trust the jury to get it right. I believe that, in properly presented cases, convictions of racially motivated offences would be secured. I therefore have a higher view of the ability of the jury to recognise racial motivation when proved than perhaps have other noble Lords. I do not begin to accept what was said by the noble Lord, Lord Lucas, that, if a conviction was not secured for a racially motivated manslaughter, that would in any way imperil a conviction for the offence of manslaughter simpliciter.
I have heeded the words of the noble Lord, Lord Renfrew, that in Committee and particularly at this late hour, the amendments test the water. I remain of the view, however, that it is necessary to send some signal on racially motivated offences. This is certainly an area to which we shall return on Report, having reflected on our deliberations in Committee. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 159B:
After Clause 137, insert the following new clause:
("Malicious communications

.—(1) Section 1 of the Malicious Communications Act 1988 shall be amended as follows.

(2) In section 1(3) after the words "and 'sender' shall be construed accordingly", there shall be inserted the words "references to 'sending' or 'sender' shall further include any person who distributes on behalf of another a letter or article within the meaning of section 1(1) (a) or (b) and if the letter or article comprises printed matter the printer and publisher thereof.

(3) The following subsection shall be inserted after subsection

(3)—
"(3A) A person who distributes, prints or publishes any letter or article within the meaning of section 1(1) (a) or (b) shall not be guilty of an offence if he shows—

(a) that he was not aware of the contents of the letter or article, and

(b) that he was not aware that the purpose, or one of the purposes, of the sender fell within section 1(1)".

(4) Subsection (4) shall be amended by inserting after the words "on summary conviction to" the words "imprisonment not exceeding six months or" and by inserting after the words "a fine" the words "or such lesser penalty as the court deems fit".

(5) The following subsection shall be inserted after subsection (4)—

"(5) In this section the words 'grossly offensive' shall include material that is offensive on the grounds of the

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colour, race, nationality (including citizenship) or ethnic or national origin of the recipient or of any other person to whom the sender intends that it or its contents or nature shall be communicated.").

The noble Lord said: This amendment is aimed at strengthening the law relating to the sending of letters or articles through the post for the purpose of causing distress or anxiety to the recipient. I think we would all agree that it is intolerable that there should be foisted on people in the privacy of their own homes unsolicited material which is racially offensive.
The amendment: would make three changes to improve the Malicious Communications Act 1988. At present the offence is committed only by the actual sender of the material. In many cases, it is difficult to identify who is the actual sender. The "sender" includes anyone who delivers or causes the material to be sent or delivered. As I said, in many cases that person is difficult to identify. He may operate through a distribution network.
The amendment proposes that the distributor, printer or publisher should be liable in the same way as the sender, but with a special defence that he is not guilty if he shows that he was not aware of the contents of the letter or article; for example, if he was given sealed letters to post and was not aware that the purpose was to cause distress or anxiety. I regard it as an entirely reasonable proposition that any distributor, printer or publisher who cannot avail themselves of this defence should be treated as equally responsible for the sending of offensive material which is sent for the purpose of causing distress or anxiety. That is the first change provided for by the amendment.
Section 1(1) (a) (i) of the 1988 Act catches material which is indecent or grossly offensive. It is a widely held view that the provision is confined to pornography because the expression is covered by the use of the word "indecent". The second change which the amendment would make is to lay down the express provision that material which is offensive on racial grounds and sent through the post unsolicited to a recipient for the purpose of causing him distress or anxiety constitutes a breach of the Act.
A good example of the mischief at which the amendment is directed is the proliferation through the post to members of the Jewish community of material describing the Holocaust as a myth invented by Jews in order to gain undeserved reparation from the German Government for non-existent crimes. What should be criminal is the sending of that material to Jews for the express purpose of causing distress or anxiety.
That offence in no way inhibits the free expression of opinions about the Holocaust, however objectionable they may be to some. What is sought to be prevented is the foisting of those opinions on innocent recipients for the specific purpose of causing them distress or anxiety. The critical question to which I invite the noble Earl to respond in replying to this amendment is: does he believe that under the rubric "grossly offensive" the 1988 Act should cover racially offensive material? If the answer is yes, should the law not be made plain? If the answer is no, what is the reason for excluding racially offensive material from the 1988 Act?
Finally, the Act imposes only a fine. The amendment allows the court, in its discretion, to impose a term of imprisonment where it considers that appropriate; for example, in the case of a persistent offender. I beg to move.
10.30 p.m.
Lord Lester of Herne Hill: I wish to express my support for the amendment and to give one example to serve for all the social evil it is designed to combat and the gap in the law it is designed to fill.
An anti-Semitic, scurrilous, evil pamphlet was distributed recently to members of the Jewish community. It was headed, "Parents, your children are in danger". It attacked a campaign for planning permission to set up an eruv in a seven square-mile area of Barnet. The tract was; signed by two people describing themselves as priests. One was aptly named the right reverend Julius Streicher after the Nazi propagandist of the Church of the Creator and Assembly of St. Julius the Martyr. It claimed that the creation of a modern-day Jewish ghetto would create bitter religious divisions between Jews and gentiles, would seriously reduce house prices on north west London, and would lead to,
"a further influx of Jews able to buy gentile properties at knock-down prices".
That was tame compared with what followed. This vile leaflet explained:
"We can produce evidence of two sinister practices; Jewish ritual murder and paedophilia associated with those who follow the Jewish way of life".
It then purported to give chapter and verse of specific and sickening examples of each. And for good measure it gave a telephone number and an address for those who wished to communicate their support.
That seems to me a serious mischief—a form of public nuisance particularly hurtful and in some cases frightening, humiliating and deeply wounding to recipients. I can think of no good reason why the law should not be extended in the way that this modest amendment suggests.
Baroness Flather: I too wish to lend support to the amendment. Some years ago I received a very unpleasant publication in relation to the Jews and the way in which they had created this, that and the other. I did everything possible and tried very hard to get it stopped. I was told that there was no way in which anything could be done to stop circulation of the publication.
On another occasion an enormous number of copies of a letter were sent out to selected householders purporting to come from the Home Office. The letter stated that an Asian family would be billeted with that particular householder. It suggested how many members of that family there would be, the way in which they would behave, what kind of food they would eat, and so forth. Everything was extremely derogatory about the Asian family. Apart from that, it really frightened the recipients, who, on the whole, were not very sophisticated people.
That kind of activity can cause an enormous amount of disturbance, in particular in a small, relatively

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unsophisticated community. Furthermore, I object to having to receive material which I consider to be offensive and about which I am unable to do anything.
Lord Renton: For the reasons given by my noble friend Lady Flather, the noble Lord, Lord Lester, and the noble Lord, Lord Irvine, I believe that this amendment should receive sympathetic consideration by the Government.
We have had five years now of operation of the Malicious Communications Act 1988, which importantly broke new ground, but noble Lords have given some examples of what are, in effect, gaps in that Act. I believe that those gaps should be filled.
I wish to refer to only one detail in relation to the amendment. I believe that it is right, as mentioned in subsection (4), that in the worst cases imprisonment should be a sentencing option.
Earl Ferrers: The Malicious Communications Act 1988 covers the sending of indecent, grossly offensive, or threatening material, or material which contains information which the sender knows or believes to be false. An offence is committed if the purpose in sending such material is to cause the recipient distress or anxiety. The Act was passed in order to deal with the nuisance caused by those who send poison pen letters.
As I understand it, with regard to the case cited by my noble friend Lady Flather an offence would be committed if a person sent the offensive material to her and to others. But this amendment seeks to extend the 1988 Act to include those who distribute or who print or who publish the offending material. I do not think that there is any need to extend the Act in this way. If distributors, printers or publishers are involved in sending this sort of material, and if they intend that the recipient should be caused distress or anxiety by it, then they would already be guilty of an offence.
If, however, these categories of people are not responsible for actually sending the material, and if they are, as it were, contractors to another person, I do not see any particular reason why they should be caught by the Malicious Communications Act at all. After all, it is the sending of such material which the Malicious Communications Act is specifically designed to prohibit, and I do not think that it would be appropriate to extend it in an attempt to control the sort of material which people are allowed to print or publish.
The printing and publishing of offensive material is already subject to entirely separate legislative controls. In particular, the Obscene Publications Act 1959 makes it an offence to publish any obscene article; and Part III of the Public Order Act 1986 controls material which is racially inflammatory. Section 19 of the Public Order Act already makes it an offence to publish or distribute material which is threatening, abusive or insulting and is likely to stir up racial hatred.
This amendment suggests that there is a loophole in the law which needs to be closed. I do not think that there is. I do not think it would be right to try to extend the Malicious Communications Act to cover nuisances which are already adequately covered by the criminal
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law. As I have mentioned, the 1988 Act is directed against those who send poison pen letters and is not primarily a race relations measure.
The noble Lord's amendment would also increase the maximum penalty for the offence. The Government recognise the distress which can be caused by the sending of a malicious letter or an offensive article. The gravity with which we view such behaviour is reflected in the substantial fines of up to £2,500, which are already available. Although we do, of course, keep all the sentencing powers of the courts under review, we believe that the powers they already have allow the courts to punish offenders appropriately. Poison pen writers tend to be rather inadequate, isolated people, and we do not believe it would be appropriate to send them to prison.
The noble Lord, Lord Irvine, referred to what was "grossly offensive". That has its ordinary meaning. It is not intended to equal pornography. I hope that that clarifies that matter.
I hope that as a result of that explanation, the noble Lord will see that his amendments are not necessary in order to deal with the mischief which he believes is taking place.
Lord Irvine of Lairg: I cannot begin to accept that argument. Of course, I accept that the amendment falls into three parts. For the purposes of the Minister's reply and in order to see whether I can get a clearer response, I desire to focus on the words "grossly offensive". There is a widely held body of opinion that the provision is confined to pornography. Do I understand the noble Earl to be saying that that is not his understanding and that the words "grossly offensive" do include racially offensive material? Is that his understanding and does he not accept that there is a doubt about it? If that is his understanding then at least the part of the amendment which makes it plain that the term "grossly offensive" includes racially offensive should be accepted. Can the Minister respond directly to that proposition?
Earl Ferrers: My understanding of the position is that "grossly offensive" would cover a number of different matters, including racial offensiveness. However, we have no evidence of such difficulties. The proposed subsection (5) in the amendment would ensure that racially offensive material is covered under the term "grossly offensive". That term is otherwise not defined in the 1988 Act. Therefore, it takes on its common meaning. Obviously that can encompass a wide range of material, including that which may cause gross offence on the grounds that it attacks or vilifies the recipient's race, family, colour or origin. That is the position.
Lord Irvine of Lairg: I trust that, perhaps on reflection, the noble Earl will consider the amendment in a more favourable light. If the noble Earl genuinely desires to give by way of legislation some signals to the larger community of his sensitivity about racially offensive material being sent through the post unsolicited for the purpose of causing distress or anxiety this would be a very modest amendment for him to accept in order to make that ambiguity plain.

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On that part of the amendment which refers to distributors, printers or publishers, if the distributor, printer or publisher is aware of the contents of the letter or the article then he knows perfectly well that it is being printed or published for the purpose of sending. I can see no objection to his being included within the responsibility for it.
Once again, I welcome the support of the noble Lord, Lord Lester, and that of the noble Baroness, Lady Flather. I regard it as a modest amendment, and I am grateful to the noble Lord, Lord Renton, for saying that it should receive sympathetic consideration from the Government. I hope that that is just what it will receive on maturer reflection. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 159C:
After Clause 137, insert the following new clause:
("Group defamation

.—(1) Any person who publishes, distributes or displays written material which is offensive for the purpose of vilifying, threatening, or exposing to racial hatred or discrimination, any group of persons in the United Kingdom on account of their colour, race, nationality (including citizenship) or ethnic or national origins shall be guilty of an offence.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or such other penalty as the court deems fit.

(3) The words "racial hatred" shall bear the same meaning as in section 17 of the Public Order Act 1986 and the words "written material" shall bear the same meaning as in section 29 of the Public Order Act 1986.").

The noble Lord said: In proposing that there should be a new offence of group defamation or vilification, I proceed from what I am sure is the common assumption of this Chamber; namely, that there can be few concerns that are as central to the concept of a free and democratic society as the defeat of racism.
Racist propaganda is devoid of any redeeming social value. The object of free speech is the discovery and pursuit of truth. By no stretch of the imagination does the dissemination of rascist or anti-Semitic literature assist the discovery of truth. No one could rationally argue that the sweeping generalisations about Jews or other racial groups might be true or advance the search for truth. Racist literature has no redeeming social value. It in no way contributes to the well-being or improvement of society. Racist propaganda is foreign to the values underlying free speech. We pass laws against pornography and obscenity although these encroach on issues of literary worth. Racial vilification is at the very least as objectionable and its effect on society even more pernicious.
I make two basic points. Racial propaganda causes serious injury both to the group targeted and to society in general. First, it strikes at the dignity, worth and the good name of the group. It seeks to degrade, humiliate and cause it pain. As one of the greatest American judges of our century, Mr. Justice Frankfurter, said,
"A man's job and his educational opportunities and the dignity accorded to him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs as on his own merits".
Thus he continued,
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"Speech conceivably punishable when immediately directed at individuals could also be outlawed if directed at groups with whose position and esteem in society the affected individual may be inextricably involved".
Secondly, racist propaganda is calculated to, and does cause, damage to the perception of a group by the public. A constant barrage of material published only for the purpose of vilifying a particular ethnic group damages not only the group but society. The material is designed to create a caricature or a stereotype of the group that can affect the public's attitude and behaviour towards the group over time. It is anomalous that a group has no legal protection against statements vilifying the group although the statements if made in relation to an individual would be defamatory. Prejudice stems from hostility to the group. That hostility then spills over into prejudice or discrimination against the individual because of membership or links with the group; hence the powerful case for protecting ethnic minorities against group vilification.
I do not ignore, and in fact I respect, the basic: argument against the creation of this offence although I do not accept it. The argument is not that this racist propaganda has any redeeming social value; it is for certain beyond the pail. The argument against rests on the belief that free discussion and debate is; the most effective means of dealing with this material. I wish that I could believe in a rational world in which the pernicious effects of racist propaganda could be eliminated or reduced to tolerable levels by rational discourse. History, however, shows how easily a climate of hatred and intolerance can be created by racist words or writings and the appalling consequences that can then follow. Experience shows that emotion can easily displace reason and, once the seeds of prejudice and intolerance are sown, they can germinate in times of economic pressure or social stress, with devastating effect.
I confess to huge concern at the evidence of a rising tide of racism in continental Europe and in this country. I believe that racist material ought to be prosecuted. I do not believe that reason without the aid of law can be guaranteed to prevail over prejudice, nor do I believe that view to be consistent with a resurgence of racism in Europe despite the unparalleled tragedy of the Holocaust.
The problem with freedoms is that they conflict existentially. Free speech must be accorded a high value but there are other core values in a democratic, multi-racial society. These core values include respect for group identity, cultural diversity and respect for the dignity and worth of every human being regardless of race. These core values also include the right of every racial group to participate on a basis of equality in the political processes and public life of our country. Racism denies these core values. Its object is to relegate particular ethnic groups to a second class status in which they bear a permanent brand of inferiority. A liberal democracy is entitled to take up arms in the shape of the law in defence of its core values.
Article 10 of the European convention recognises that free speech may be subject to restrictions which are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of

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others. Free speech must sometimes yield to the claims of competing public interest. A group has a public interest in protecting its reputation from constant denigration. It is entitled to live in dignity, free from abuse and insult, and free of the insecurity that racist propaganda engenders.
I know that some will say that we should wait before outlawing group vilification until there is a clear and present danger that we shall descend into some kind of abyss if we do not. That free speech objection rests uneasily with the acceptance of the need for legislation to curb incitement to racial hatred and perhaps also with the need for its extension to cover incitement to religious hatred which we discussed earlier in this Committee. I fear that to wait until we stare the abyss in the face is to wait too long.
A new offence of group defamation would bring our law into harmony with many of our European neighbours. It would accord with international conventions that forbid the dissemination of propaganda based on theories of racial superiority. It would comply with the European convention, which permits restrictions when necessary in a democratic society to protect the rights and reputations of others. Above all, it would strike a powerful blow against increasing racism in our society. I beg to move.
The Archbishop of York: Perhaps I may share a problem. I am deeply opposed to racism, but as we have gone through this series of amendments I have found myself increasingly troubled because there is a paradox at the heart of this matter.
What we want is a society in which race does not matter, a racially blind society. The paradox in which we find ourselves is that the more we fix the notion of racism in the law the more we give permanent status to divisions which to an even greater degree we ought to be making irrelevant within our society. I do not know how to cope with that. I am grateful that the noble Lord has so far withdrawn all his amendments. I hope that he will continue to do so, because I would not want to vote against them but find that I cannot vote for them.
I feel that there is something missing in this whole exercise and we need to think of other ways of dealing with the problem of racism in terms of justice for all. That is why one looks for the definition of general offences which will be applied with particular vigour where there is clear motivation of the kind that has been described. However, if we fix these matters in the law, then we shall be stirring up a different kind of trouble for ourselves, because in the end racism does not exist. It exists only in people's minds.
I am afraid that I am not being helpful, but I hope that we shall have a quick process of withdrawal of the remaining amendments.
Lord Lester of Herne Hill: I should like to explain why, of all the amendments of the noble Lord, Lord Irvine of Lairg, in this group, this is the one amendment with which I strongly disagree. I have given the noble Lord notice of my disagreement. In his eloquent speech he attempted to deal with my objection in advance.
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Therefore, I should like to explain briefly why I think that this is wrong in principle and in practice and is likely to be counter-productive.
If one looks at the proposed crime, one notices that it gives no defence of truth and no public interest defence. That is entirely understandable because the noble Lord, Lord Irvine, would say that there can be no defence of truth or of public interest for what he calls racist propaganda.
I ask the Committee to consider how the offence would work in relation to the vile and evil anti-Semitic pamphlet to which I referred earlier. If they were prosecuted, the publishers of that pamphlet would undoubtedly argue that they were engaged in an important public debate on a matter of legitimate public interest—the planning permission issue for that eruv in north London. They would argue that their aims were political, that they had a right to free political speech. They would rely on the European Convention on Human Rights. They would deny that they intended to attack Jews as a race rather than vigorously criticising the way in which Judaism was being practised by some of its adherents. They would seek, however absurdly, to justify the truth of their vile pamphlet and to persuade the magistrates that the publication was in the public interest.
The prosecution would point out to the magistrates that neither truth nor the public interest was any defence to the crime of group vilification: all that matters is that the pamphlet is offensive, that it has been published for the purpose of vilifying Jews as a race. The trial would arouse widespread publicity for the contents of the pamphlet and for the publishers. If the prosecution were to fail, the publishers would be free to re-publish this tract under the headline, "The truth the Jews tried to ban". If the prosecution succeeded and the evil wrongdoers were imprisoned, they could present themselves to potential supporters on the far Right as martyrs whose right to free speech had been denied by Jewish conspirators.
I do not believe that that is an unreal example. It is exactly what has been attempted in the past when similar kinds of common law and statutory prosecutions were brought. There is a Catch-22 about such an offence. If it succeeds it produces martyrs, however unmeritorious. If it fails, it legitimizes the speech. However much the noble Lord, Lord Irvine, and I may think that the pamphlet is untruthful and cannot be justified by truth or public interest, there would be this defence of political speech.
The noble Lord quoted Justice Frankfurter, that great American judge, in defence of his position. It is true that Justice Frankfurter was on that side of the argument. But an equally great American judge spoke on the other side of the argument in his magnificent concurring judgment in a case called Witney v. California. He said:
"Fear of serious injury cannot alone justify suppression of free speech … Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to believe that the apprehended danger is imminent".
He continued:

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"No danger flowing from speech can be deemed clear and present, unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence".
My view—it is an optimistic view about the human condition—is that more speech rather than enforced silence is the right approach. I say nothing about incitement to racial hatred and other such offences. But I regard this proposed offence, I am afraid, as misconceived.
Lord Annan: I rise to speak because the remarks of the most reverend Primate fascinated me. Indeed, in a way he has put his finger on our difficulties in the debate as to how far one goes on one side and how far on the other. However, the truth seems to me to be this. Marx and his successors always believed that class divisions in society overrode any cultural or racial divisions. That was at the heart of communism. Indeed, one of the things we have seen with the collapse of the communist regime in Russia is the way in which these racial hatreds have emerged which were damped down under the repressive forces of that vile regime.
However, the truth is that people's culture matters to them much more than class divisions and that cultures are the thing which divides society. What we must do tonight is to try to find ways in which we acknowledge those divisions, acknowledge that those hatreds will continue to exist because they cannot be extirpated. Somehow, we have to find ways in which we can balance freedom of speech on the one hand against the necessity to control these hatreds, particularly when, in our lifetime, our own country has become multiracial. We must not expect that this affair will somehow disappear. It may disappear in three or four centuries, but certainly not today or in the immediate future.
11 p.m.
Earl Ferrers: I agree with the noble Lord, Lord Annan, that the somewhat quizzical intervention of the most reverend Primate was very impressive. He said that he did not know the answer, but he drew attention to the difficulty in which we all find ourselves. I agree with him when he says that the more you write into law matters which you want to see virtually expunged, the more you signal and solidify the existence of the problem. I remember that at school one learnt about Boyle's law, Ohm's law and Faraday's law; I coined a law which modesty compels me to admit I call Ferrers' law, which says that everything has the reverse effect from that intended. If you are not careful, you can put into legislation various matters for one purpose and you find that the result is completely the reverse of what you anticipated.
I share the concern of the noble Lord, Lord Irvine, about the publication of offensive material which is directed against particular groups of people, but it is important that we should recognise the significance of what is being proposed. Over many years governments have maintained the principle that freedom of speech
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should be curtailed only where there is a threat to public order. That is the basis of the offence of incitement to racial hatred in Part III of the Public Order Act 1986.
Amendment No. 159C takes a very different position. It criminalises the publication of material where it is both offensive and has the purpose of vilifying a particular group. One of the difficulties would lie in whose estimation the material is considered to be offensive and who is to determine what amounts to vilification. There will be an inevitable and serious tension between the expectations of different groups who have been offended by particular material, only to be countered by perfectly justifiable arguments from those who have produced it saying, "Well, after all, it's only fair comment". It would certainly be possible for academic articles or leader columns to fall within the scope of this clause, depending on how a court were to choose to construe its terms. More important than that, a number of groups would expect such material to be covered by the new law and would be deeply concerned if the new legislation failed to match their assessment of what is offensive or vilifying.
There are many things which offend all of us. Some of them we may believe are said with the deliberate intention of traducing our origins, but that is not necessarily a reason for criminalising such behaviour. Part III of the Public Order Act already deals with material which incites racial hatred. The proposed offence in the amendment would be much wider and I doubt whether it could be justified in the absence of any threat to public order. It is not the function of the criminal law to preserve our individual dignity.
Even apart from the arguments of principle, in practice such a measure could well be counter-productive. If the amendment were to be incorporated into the Bill, a splendid platform will have been provided for racists to demonstrate that the purpose of their publications was not to vilify certain groups but simply to provide what they would describe as "accurate and justifiable" information or to correct the "misconceptions" of others.
These are not easy matters. The balance of freedom of speech and civil liberties is never easy. The Government do not believe that there is at present a case for a change. I suggest that we would be ill-advised to make such a fundamental shift as this clause proposes without further and very careiul consideration as to what would be its long-term effects.
Lord Irvine of Lairg: The most reverend Primate the Archbishop of York assured the Committee, when there was no need for such assurance, of his deep opposition to racism. But, with respect, I take issue with him to the extent that he is suggesting that the solution is to pretend that it does not exist. It does exist. I do not sympathise with the proposition that you simply pass laws that do not mention the dirty words "racism", "racial harassment" or "racial motivation" It is the fact that racist motivation is a character of the commission of many offences which many of us would think ought to be criminal. The fact that racist propaganda propagates myths does not mean that it can be ignored. It does not

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mean that the criminal law should not outlaw it and its evil consequences and that we should pretend that it does not exist.
The noble Lord, Lord Lester, who was kind enough to give me notice of his position in this argument, suggests that if a prosecution for group vilification were to succeed, then it would produce martyrs; if it were to fail, then that might operate to justify the very material complained of.
Just as I said earlier that I have greater confidence in the jury than the noble Lord, so also I have greater confidence in the law. I believe that the law can perform an educative function. It can improve the quality of the public mind. That was the philosophy that underlay the sex and race relations legislation of the 1970s. I believe that an offence of group vilification would lead to the public abhorring group vilification and that convictions would be secured without creating martyrs. But the Committee would not welcome my extending the argument further at this hour of the night. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 159D:
After Clause 137, insert the following new clause:
("Incitement to racial hatred
.—(l) part II of the Public Order Act 1986 shall be amended as follows.
(2) In section 12(1) (a) of the Public Order Act 1986 there shall be added after the word "community" the words "on racial, religious, ethnic or other grounds,".
(3) In section 12(1) (b) of the Public Order Act 1986 there shall be added at the end after the word "do" the words "or to stir racial hatred".
(4) Part III of the Public Order Act 1986 shall be amended as follows.
(5) For section 17 there shall be substituted the following provision—
"Racial hatred.
17. In this Part 'racial hatred' means hatred, hostility,, violence or discrimination against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins".
(6) For section 19(1) the following subsection shall be substituted—
"(1) A person who publishes, distributes or displays written material is guilty of an offence if—

(a) he thereby advocates, promotes or intends to stir up racial hatred, or

(b) having regard to all the circumstances it is reasonably foreseeable that racial hatred may be stirred up thereby.

(7) Section 19(2) is repealed.
(8) In section 19(3) after the words "or a section of the public" there shall be inserted the words "or any member of the public"."
(9) For section 23(1) the following subsection shall be substituted—
"(1) A person who has in his possession written material or a recording of visual images or sounds with a view to—

(a) in the case of written material, its being displayed, published, distributed, broadcast or included in a cable programme service, whether by himself or another, or

(b) in the case of a recording, its being distributed, shown, played, broadcast or included in a cable programme service, whether by himself or another,
is guilty of an offence if he advocates, promotes or intends racial hatred to be stirred up thereby or, having regard to all the circumstances, it is reasonably foreseeable that racial hatred may be stirred up thereby".

(10) Section 23(3) is repealed.
(11) In section 25 after subsection (4) there shall be inserted the following subsections—
"(5) A court by or before which a person is convicted of—

(a) an offence under section 18 relating to the display of written material, or

(b) an offence under section 19, 21 or 23, may order that the person convicted shall not display, publish or distribute written material, or distribute, show or play a recording of visual images or sounds, which is the same as or substantially similar to any written material or recording produced to the court and shown to its satisfaction to be written material or a recording to which the offence relates.

(6) Any disobedience to an order made under section 5(5) above shall constitute a contempt of court and be punishable as such.
(7) An order made under subsection (5) may take effect, if the court so determines, in the case of an order made in proceedings in England and Wales before the expiry of the ordinary time within which an appeal may be instituted or when an appeal is duly instituted, before it is finally decided or abandoned but will cease to have effect if the appeal against conviction is allowed".
(12) In section 27(1) there shall be substituted for the words "of the Attorney General" the words "of the Director of Public Prosecutions".").
The noble Lord said: Dissemination of racist, and perhaps in particular anti-semitic, hate literature is growing. The existing law against incitement to racial hatred has been ineffective to curb the flow. Since the enactment of the current law in 1986 there have been only 14 prosecutions for incitement—a tiny number by contrast with the prevalence of the material.
We welcome—and it is right that I should say so —the Government's late decision to provide by Clause 137 that the publication and distribution of,
"material intended or likely to stir up racial hatred",
will be an arrestable offence. The present law, permitting the police to arrest a person who makes a racist speech, but not a person who publishes or distributes racist pamphlets or leaflets, was obviously anomalous. So this change, which we welcome, will enable culprits to be apprehended and evidence to be obtained which might not be obtainable at a later stage. A power of arrest is insufficient if the law is too weak to enable a successful prosecution be brought.
This amendment is in two parts. The first addresses Section 12 in Part II of the Public Order Act 1986. Its purpose is to enable a senior police officer to give directions in relation to the holding of a public procession in circumstances in which that senior police officer reasonably believes that the holding of that procession is for the purpose of stirring up racial hatred or where he reasonably believes that the procession may result in serious public disorder, serious damage to property or serious disruption to the life of the community on racial, religious, ethnic or other grounds.
So this amendment is well within the area for which the noble Earl accepts that it is appropriate for the law to enter in order to prevent disorder. The purpose therefore is to enable the police to regulate public marches or demonstrations which the police reasonably believe either to be intended to stir up racial hatred or may have the effect of causing disorder, damage or disruption on racial or religious grounds.
I believe that senior police officers have indicated that they would welcome such an enhancement of their powers to regulate overtly racist processions. If the

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noble Earl is not minded to accept this part of the amendment, no doubt he will explain why the Government decline to empower the police in this way.
The second part of the amendment addresses Section 19 in Part III of the Public Order Act 1986. Section 19 is concerned with the distribution of material intended or likely to stir up racial hatred. That section has proved conspicuously ineffective in curbing the distribution of racist material which is taking place in the country virtually with impunity. The tiny number of prosecutions compared with the volume of material being freely distributed demonstrates the impotence of the section. Those who peddle that material are inevitably emboldened by the failure of the law to catch their activities.
This amendment is designed to give teeth to Section 19. Firstly, it revises the definition of "racial hatred" to include matters which are less extreme than hatred itself, such as hostility, violence, or discrimination against a racial or ethnic group—words which derive from an international convention to which this country subscribes.
Secondly, the law should cover not only the active stirring up of racial hatred but activities which involve the advocacy or promotion of racial hatred. That would cover pseudo-academic or scientific discussion to establish the inherent inferiority of particular groups and the need for those groups to be marginalised or wholly excluded from political processes.
Thirdly, Section 19 is presently confined to material which is "threatening, abusive or insulting". This amendment proposes that those words, which are words of limitation, should be deleted. The amendment proposes that all racist material should be caught, not merely that which is obviously threatening, crudely abusive or vulgarly insulting. Racist material which is, for example, intended to stir up racial hatred should not fall outside the legislation because it is expressed in carefully drafted language to fall outside the labels "threatening", "abusive" or "insulting". It is all the more insidious when clothed in false moderation, although the intent is plain.
Fourthly, Section 19 requires racial hatred to be intended or to be likely to be stirred up. The amendment recognises that the word "likely" in Section 19(1) (b) imposes too stringent a test for the securing of convictions. The amendment proposes that it should be sufficient to show that it is reasonably foreseeable that racial hatred may be stirred up by the distribution of the racist material.
Fifthly, the amendment extends the definition of "the public or section of the public" in Section 19(3) to include any member of the public, in order to close a loophole in the law, which held that distribution to a single individual was not distribution to the public.
Sixthly, the amendment incorporates amendments to Section 23 which are consequential on the earlier amendments. Section 23 deals with the possession of written material or recordings. The amendment provides for an offence where it is intended or reasonably foreseeable that racial hatred may be stirred up by the material or recordings in the defendant's possession.
Seventhly, Section 25 allows a court before whom a person is convicted of an offence, for example, under Section 19 of the Public Order Act, to order forfeiture of the material to which the offence related It is a salutary power but it would not, for example, prevent reprinting —say from a word processor—and redistribution at a future date. The amendment therefore proposes that the court should have power to order that no further copies of that material in the same or substantially similar form should be published or distributed. Disobedience would be punishable as a contempt of court.
Finally, the amendment proposes that the consent of the DPP, rather than that of the Attorney-General, should be required for the institution of proceedings. To require the Attorney's consent is to give the decision an apparently political character, whereas the decision whether to prosecute or no should be taken by the DPP as an ordinary matter of business.
The amendment includes a battery of suggestions to which I hope the noble Earl will feel able to give serious consideration. I beg to move.
11.15 p.m.
Lord Monson: Once again I must say that a well-meaning amendment moved by the noble Lord, Lord Irvine, goes much too far. In view of the late hour, let me give just one example. Section 19(1) of the Public Order Act 1986 requires that written material must be threatening, abusive or insulting before any offence can be committed. However, Clause 6 of the proposed new amendment totally removes that requirement. What would the consequences be? A newspaper which, for example, published a report alleging that 10,000 West African immigrants had been smuggled into Britain during the past six months could find itself prosecuted under the terms of the amendment, even if every word in the article were totally true, because, under Clause 6(b), having regard to all the circumstances it would be reasonably foreseeable that a certain amount of racial hostility—not hatred—would be stirred up thereby.
When speaking to his previous amendment, the noble Lord, Lord Irvine, extolled what he termed the "pursuit of truth". If this amendment, is accepted, the pursuit of truth, where it touches upon racial matters, would be rendered dangerous if not impossible.
Lord Annan: Perhaps I may again make an intervention in regard to incitement. It is a serious problem, particularly the recent incitement against Jews in this country. Until very recently this country probably had the best record in Europe, indeed in the world, in its toleration of the Jewish community. It is wrong, of course, to try to make any kind of distinction between that and the tragedy that struck the Jewish community at the time of the Holocaust. But in some way one could say that the Russian and Polish Jews were used to persecution and accepted that they would be persecuted. But the country on the Continent, as opposed to our own country, which had in a way the greatest tolerance of Jews, was Germany.
Frederick the Great ran in Prussia a liberal regime as regards religious toleration, and that spilled over so that Bismarck had his own great Jewish financier,

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Bleichroeder, who again was accepted as part of the regime. In the 1920s no Jewish community ever made a more penetrating attempt to become accepted as part of the country; as the right reverend Primate said, in a sense they were almost trying to pretend not to be Jews. They tried to assimilate more man any other Jewish community. Why did the tragedy strike? It was due to deliberate racial incitement by the Nazis, who used every weapon of propaganda to stir up hatred against the Jewish community. Here was a country in which there was great toleration of the Jewish community and yet it was the country which in the end created the Holocaust. That is why we must take the matter more seriously than the noble Lord, Lord Monson, was suggesting. We must take the business of incitement extremely seriously because, once it starts, it is a poison which strikes at our own society.
Earl Ferrers: As the noble Lord, Lord Irvine, stated, the new clause falls into two distinct parts and it poses a battery of questions. The first matter relates to Part II of the Public Order Act 1986, which deals with the police powers to control demonstrations, and the second relates to amendments concerning incitement to racial hatred under Part III of the Public Order Act.
Section 12 of the Public Order Act gives the police the power to impose conditions on a procession where they reasonably believe it may result in serious public order, serious damage to property or serious disruption to the life of the community, or that the purpose of the procession is to intimidate others.
The police officer is asked to make a judgment about the practical effect of a particular procession. The grounds on which that effect may be caused are not relevant to the exercise of his judgment. Specifying racial, religious or ethnic grounds, as is proposed under subsection (2) of the amendment, would give the officer no new power. The police are well aware of the potential for racial tension to be caused by processions and they already have the power to take the necessary action.
Subsection (3) would add "stirring up racial hatred" as an additional reason for imposing conditions on a procession. Under the amendment, the police officer would no longer be asked to make a judgment about the likely practical outcome of a procession—clearly a public order matter—but he would have to consider whether or not the procession would be likely to have the effect of stirring up racial hatred. This is a much more difficult matter. It would expose the police to arguments about what effect a procession would have on the emotions of third parties—irrespective of whether those people, as a result of the procession, were moved to take any unlawful action. I do not think that these proposals would offer anything which would help the police control processions.
I turn now to subsections (4) to (12) of the amendment, which would amend Part III of the Public Order Act 1986 by extending the scope of offences in this part of the Act and lowering a number of the tests which must presently be satisfied.
This is not an easy area. However, while nobody wants to see material which spreads racial hatred being
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freely circulated, it is the job of Parliament to decide where the boundary falls between protecting sections of our community and preserving freedom of speech. I think that this amendment goes too far in bringing within the scope of the criminal law some matters which should stay firmly outside it.
Starting first with the definition under subsection (5), the noble Lord would extend racial hatred to include "hostility, violence or discrimination". I cannot really see what hostility or violence would really add in law to the test of hatred, but the reference to discrimination seems out of place here. Racial discrimination is quite properly unlawful under the Race Relations Act 1976, but it is not a criminal offence. The effect of this amendment would be that incitement to racial discrimination would be a criminal offence, but discrimination itself would not be. Not only would this be bizarre, but it would enormously widen the scope of Part III of the Public Order Act.
Subsections (6) to (10) deal with the publication or possession of material which might have the effect of inciting racial hatred. There are, however, a number of fundamental flaws. First, the amendments would remove the requirement for relevant material to be "threatening, abusive or insulting". This would bring serious or academic works within the scope of the Act. A factual description of the horrors of the slave trade, for example, might well have the effect of stirring up racial hatred. News broadcasts of outrages committed between different communities elsewhere in the world could equally stir up racial hatred between members of the same communities in this country.
I shall not go through each subsection, but under subsections (7) and (10) the noble Lord also proposes removing the defence for an accused who has not been shown to have intended to stir up racial hatred and who is able to prove that he was not aware of the contents of the material. There would be no defence—as there is at the moment—for an innocent distributor such as a bookseller or publisher. And I would remind the Committee that the material would no longer even have to be threatening, abusive or insulting. That would, I think, threaten even the most responsible of booksellers distributing factual material.
Subsection (12) would replace the consent of the Attorney-General for prosecutions under Part III with the consent of the Director of Public Prosecutions. Since the Public Order Act came into force in 1987, consent to prosecute has been granted by the Law Officers on 14 of the 19 applications made by the Crown Prosecution Service. Where consent has been refused, it has been on standard grounds applicable to any prosecution decision such as the age of the defendant or the likelihood of securing a conviction. There is nothing to suggest that the consent provision operated to impede prosecutions which would otherwise have taken place.
The Attorney-General's consent was originally thought necessary in order to ensure that decisions effectively curtailing the freedom of speech should be made by someone who is accountable to Parliament. The proposals put forward in this new clause as a whole would vastly increase the ability of the law to curtail free and fair comment. In this context there is, if

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anything, even greater justification for the Attorney-General's consent. However, the Government will be looking further at this issue in the light of any recommendations made by the Home Affairs Select Committee.
While I understand the concerns which prompted the noble Lord to bring the new clause before your Lordships, I think it would create unacceptable problems. The Government share the noble Lord's concern to deal effectively with repugnant racial material. But we do not think that the new clause is the best way to do it.
Lord Irvine of Lairg: I shall read carefully in Hansard the noble Earl's detailed response, delivered, understandably at this late hour, at somewhat breakneck speed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 159E:
After Clause 137, insert the following new clause:
("Racial harassment

(1) Part 1 of the Public Order Act 1986 shall be amended as follows—

(2) After secti6n 5 there shall be inserted the following new section—

"Racial harassment.
5A.—(1) A person is guilty of an offence if on racial grounds he—

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

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

(2) A constable may arrest a person without warrant whom he reasonably suspects of conduct constituting an offence under this section.
(3) In this section "racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins.
(4) A person guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding 12 months or a fine or both;

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

(5) A person is guilty of an offence under this section if a reasonable person would have expected any such trespass or nuisance to cause harassment, alarm or distress, or any such words or behaviour, or any such writing, sign or other visual representation to be threatening, abusive or insulting within the hearing or sight of any person likely to be caused harassment, alarm or distress.").
The noble Lord said: I can deal with this amendment shortly largely because of the debate we had a little time ago on the noble Earl's Amendment No. 156B. I made particular criticisms of that amendment, albeit that it has now been passed. I pointed out, for example, that it would not cover the intentional playing of loud music outside the home of the victim; nor the deliberate creation of a din in neighbouring premises. I pointed out that it would not cover entry upon the victim's premises which was not threatening but designed to cause annoyance or irritation. I pointed out that it would not cover daubings on the walls of the victim's house unless those daubings were either threatening, abusive or
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insulting; nor would it cover the distribution of pamphlets or other written material to the victim's house which was offensive without being insulting.
This amendment is expressly concerned with harassment on racial grounds. As was pointed out in our earlier discussions on Amendment No. 156B, the noble Earl's amendment covered broadly the same grounds as Section 5 of the Public Order Act. It did not address other forms of harassment which the Government described in the other place as low level harassment. This amendment deals expressly with harassment on racial grounds. It deals not only with threatening, abusive or insulting words, behaviour or displays, but it also covers acts of trespass or nuisance likely to cause harassment, alarm or distress. Trespass would cover unauthorised entry on the victim's property. Nuisance would cover acts which make life unpleasant, irksome or intolerable for the victim. It would clearly cover all the examples that I have given of annoying, offensive conduct or conduct contemptuous of the victim's rights which the Minister's amendment does not reach. It was for those reasons that I suggested that the Minister's amendment did not afford adequate protection to those who suffer racial harassment in all its forms on a daily basis. I beg to move.
11.30 p.m.
Lord Lucas: If this amendment were enacted, it would be an excellent example of Ferrers' law. It would, for instance, have a devastating effect on the gypsy community and almost no effect on New Age travellers.
Earl Ferrers: While I can sympathise with the intention of this clause, I am afraid it also raises a considerable number of difficulties. The offence requires proof of racial motivation, and motivation is, as we know, one of the hardest things to prove in a court of law. But even leaving that aside, the substantive matters of the offence raise too many difficulties.
Section (l)(b) repeats the language of the existing Section 5 offence. There is no problem there. But new Section 5A(l)(a) refers to any trespass or nuisance which is likely to cause harassment, alarm or distress. The trespass or nuisance does not in itself even have to be threatening, abusive or insulting. There may indeed be nuisances or minor acts of trespass between neighbours, such as garden bonfires or music played too loudly, which can cause distress. But I doubt whether the noble Lord really means that that sort of conduct should now come within the scope of the criminal law and that there should be for that relatively harmless behaviour an unqualified power of arrest and a maximum penalty of 12 months' imprisonment.
Subsection (5) makes it clear that the only requirement is for a reasonable person to have expected such behaviour to cause harassment, alarm or distress. At present a person is guilty of an offence under the existing Section 5 of the Public Order Act only if he either intends his conduct to be threatening or is awaire that it may be so. The new clause hugely extends the range of conduct which may be regarded as criminal. It

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lowers the tests which have to be satisfied, but it strengthens the arrest power and increases the sentence. I do not think that this is the best way to proceed.
With regard to the penalty, the Public Order Act provides a range of criminal offences with a graduated series of penalties to reflect their severity. The present Section 5 is the lowest of these and it merits a maximum fine of £1,000. The next up the scale is Section 4, which covers behaviour which is intended to provoke the immediate use of violence or which may lead a person to fear such violence. This attracts a maximum penalty of six months' imprisonment and/or a fine. I do not think that it can be right that conduct which is covered by the new clause, which involves behaviour no more serious than the present Section 5, should attract a sentence which is double that which is available for more serious behaviour involving a threat of actual violence.
The new clause would also make it an offence to trespass or to create a nuisance which causes distress, but only where it is racially motivated; and threatening, abusive or insulting behaviour would attract a substantial prison sentence but only if it were racially motivated. If the victim of the same conduct was a frail old lady, a disabled person or any other vulnerable person, but who happens to be of the same race as the offender, the conduct would merit no more than a £1,000 fine. I do not think that it would be either right or sensible for the same conduct to be liable to such very different sentences depending only on the motivation. That is why the Government's new clause of intentional harassment makes a higher penalty available for all cases of more serious conduct, whatever the motivation.
Lord Irvine of Lairg: At this late hour, I shall not prolong the debate. This is a subject to which we are likely to revert on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Flather Baroness Flather moved Amendment No. 159F:
After Clause 137, insert the following new clause:
("Amendment of Criminal Justice Act 1991
.—(1) In section 29 of the Criminal Justice Act 1991, the following subsections shall be inserted after subsection (2)—
"(2A) In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.
(2B) In this section "racial motivation" means a motivation on grounds of colour, race, nationality or other national origin.").
The noble Baroness said: This is a very modest amendment and despite the length of time that the Committee has already spent discussing this subject, I hope that your Lordships will consider it seriously.
The first new clause requires a court, when sentencing an offender, to regard racial motivation as an aggravating factor. It would apply both to racially motivated violence and also to non-violent offences committed with a racial motivation; for example, criminal damage to a householder's property involving the daubing of racist graffiti. That would make explicit in statute a duty which is already placed on courts implicitly by statute and also by guidance contained in
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Court of Appeal judgments. Section 3(3) of the Criminal Justice Act 1991 requires courts considering the seriousness of an offence to,
"take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it".
The Court of Appeal has also made it clear in appeal cases that racial motivation constitutes an aggravating factor. It could, therefore, be argued that it is unnecessary to make this duty explicit in statute in the way that the new clause does. However, it is submitted that the need to ensure that the courts always take it into account is so important that it is right to reinforce the courts' duty in this way. In the Criminal Justice Act 1993, which is a good precedent, the Government amended Section 29 of the Criminal Justice Act 1991 to stipulate that courts should regard as an aggravating factor the fact that an offence was committed on bail. The 1993 Act inserted into the 1991 Act a new Section 29(2), which states:
"In considering the seriousness of any offence committed while the offender was on bail, the court shall treat the fact that it was committed in those circumstances as an aggravating factor".
It could have been argued that this provision was unnecessary because on a number of occasions the Court of Appeal had held that the courts should regard the offending on bail as an aggravating factor. However, the Government regarded it as so important to ensure that the courts took this into account that they considered it right to single it out for special attention in statute in this way.
It is submitted that the need to see racial motivation as an aggravating factor is just as important. A specific statutory duty of this kind would increase the likelihood that courts would reflect this in their sentencing as well as sending out a clearer signal from Parliament that racial violence and harassment is not to be tolerated. It would seem that this factor is unlikely to appear on the face of the Bill in any other place. That makes it even more important that mis clause should be included.
I wish to speak also to Amendment No. 159G. This second new clause places a duty on the prosecution to place before the court any information or material tending to show that the offence was committed with a racial motivation. If courts are to fulfil their duty (either their existing duty or the strengthened statutory duty contained in the new clause) to regard racial motivation as an aggravating factor they will be better able to do so if the prosecution is under a duty to provide them with any such information. There is good reason for tabling the amendment. On many occasions, it has come to light that the court was not fully informed about the racial aspects of the case. I took part in a recent "Panorama" programme which had investigated a number of cases in which the courts had not been informed of racial aspects. It was felt by those who were interviewed afterwards that had the court been fully informed, it might have taken a different view when sentencing.
I believe that that is an extremely important point. It is obviously understood that that matter should be taken into consideration but it would give a tremendous boost to the sense of security of the victims if those two clauses were placed on the face of the Bill. I beg to move.
Earl Ferrers: I have a lot of sympathy with the intention of the first two of my noble friend's proposed new clauses. Racially motivated crimes are abhorrent. The prosecution should put forward what evidence it has where there may be a racist motive. The sentence, which is passed by the court, should reflect that. No one could disagree with those principles.
Courts are, of course, already required to take into account all the factors which aggravate or which mitigate the seriousness of offending behaviour. This long-standing and well established principle was given statutory force in the Criminal Justice Act 1991. A number of aggravating factors are widely recognised in case law—racial motivation is one of those. Other factors, which the courts will regard as aggravating the seriousness of an offence, include where an offence is carried out by a group or a gang; where an offence is committed against a young, elderly or otherwise vulnerable victim; and where an offence involves abuse of trust or when an offence is planned.
I hope that your Lordships would agree that where one or more of these factors was present it would be highly unusual for any court not to regard the seriousness of the offence as having been aggravated. It would seem curious, though, to single out just one of these factors as being so different that it, and it alone, should require to be separately specified in statute.
With regard to Amendment No. 159G, there is already a duty on all those who prosecute in the name of the Crown, after conviction or a finding of guilt, to inform the court of the circumstances of the offence and the character and antecedents of the offender. At present the prosecutor has a duty to inform the court of any factors which make the offence unusually serious— which includes information that an offence was racially motivated—and also to inform the court of any mitigating circumstances if those are known.
The Government are concerned to ensure that evidence, which goes to show racial motivation, should be clearly indicated at every stage of the process—from the first report of the incident, through its handling by the police and the Crown Prosecution Service, to sentence passed by the court. Achieving that will mean that the prosecution and the courts will have before them the information on which they can act effectively. That requires the co-ordination of the work of different agencies and it may be more a matter for administrative action rather than legislation. The police and the Crown Prosecution Service are already taking steps to identify cases where there is evidence of racial motivation. That is an issue which can be dealt with more effectively through additional guidance and training for all agencies involved in the criminal justice system rather than by legislation.
I turn now to the new offence of racial harassment —Amendment No. 159H. Here the position is rather more difficult. Racial harassment is an appalling feature of the lives of too many of our citizens. It can do enormous damage to individuals and to relations between different communities. The new offence would take the behaviour already covered by Section 5 of the Public Order Act 1986—
Lord Monkswell: I am sorry to intervene but the Minister is speaking to an amendment that has not been moved or spoken to. I wonder whether it is in order for the Committee to hear the Government's response before an amendment has been moved or spoken to in the debate.
Earl Ferrers: I understood that all the amendments were grouped together but if my noble friend wishes to move that amendment separately, I am quite happy for her to do so.
Baroness Flather: I had intended to move the racial harassment amendment separately but I was not going to say anything new. I shall say my piece after the Minister's speech.
Earl Ferrers: The proposed new offence would take the behaviour which is already covered by Section 5 of the Public Order Act 1986 and provide an immediate arrest power and sentence of up to two years' imprisonment, but only where the behaviour is on racial grounds. It is always difficult for prosecutors to prove motivation beyond reasonable doubt. But the proposal raises a more fundamental question. The same behaviour and the same distress may occur to two different people. In the first case, it may be a young child, a woman, an elderly person or someone disabled. That would be an offence under the existing Section 5 which would be punishable with a maximum fine of £1,000. In the second case, which would be distinguished only by race, there would be a maximum penalty of two years in prison. I do not think that that can be right. It would be difficult to distinguish between similar behaviour in such an arbitrary way. To have a vastly different penalty for race cases only would send a wrong signal and would do more damage to race relations than it would improve them.
It is because of those difficulties that the Government introduced their new clause, to which Members of the Committee agreed earlier this evening, concerning causing intentional harassment. That effectively takes the most serious conduct under Section 5—namely, deliberate harassment actually causing distress—and makes it liable to six months' imprisonment. It deals with racial harassment, but it also deals with harassment on any other grounds. I hope that Members of the Committee will agree that that is the most sensible way to proceed.
11.45 p.m.
Lord Monkswell: Perhaps I may intervene in the debate. I support the noble Baroness in Amendments Nos. 159F and 159G to which she has spoken. It seems to me that the noble Baroness made a very good good case; indeed, there is an overwhelming case that racial motivation should be seen as an aggravating factor and that facts relating to racial motivation should be placed before a court.
In his response, the noble Earl identified a number of factors which the courts already take into account in terms of identifying whether there are aggravating factors involved. I believe that the noble Earl mentioned that they are a well-established and accepted part of

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court procedure. I believe that the Minister also said that racial motivation should also be taken into account as an aggravating factor by the courts. However, if the Government are not prepared to accept the amendments, what steps are they taking to ensure that, on the one hand, courts have placed in front of them evidence of such aggravating factors and, on the other hand, they take them into account in determining sentence? It is not clear from what the Minister said that the Government are actually taking action to ensure that both of those characteristics are taken into account.
Earl Ferrers: I shall reply to the noble Lord fairly briefly. The whole way through out debates on such amendments I have explained that our great desire is that racial motivation or racial harassment should be flagged up at every stage whether by the police, the Crown Prosecution Service or the courts. That is what we wish to see happen. Of course, governments cannot impose that: what we have to do is encourage it and give the courts the power to impose higher sentences where there is an aggravating factor. Indeed, I gave examples earlier of how courts have done so.
Lord Monkswell: I am sorry to rise again, but if the Government do not have the power to advise the courts on what they should take into account and what type of information they should have in front of them, perhaps it is up to Parliament to give the courts and the prosecution authorities those powers. That is exactly what the amendments seek to do.
Earl Ferrers: Had the noble Lord been present in the Chamber earlier this evening when we discussed other similar amendments, he would have realised that the courts already have such powers; indeed, they have the powers to give higher sentences for aggravated offences, and they do so. It is for the police to gather the information and then it is for the Crown Prosecution Service to prosecute on the cases. In all those instances and at all those stages aggravated offences are taken into account. Moreover, where it is plain that there is an aggravated factor involved—that is, a matter of racial harassment, racial hatred or any of those things—such offences are aggravated offences which courts do take into account; which they have the power to take into account; for which they have the power to give greater sentences; and, indeed, for which they do give greater sentences.
Baroness Flather: If I had been able to speak to my Amendment No. 159H, I might have saved my noble friend the Minister some time, because it is not my intention to press that amendment in view of the Government's proposal which was accepted earlier. But I believe that that in itself makes it even more essential that my other amendments, Nos. 159F and 159G, should appear on the face of the Bill.
I take note of what my noble friend the Minister has said about administrative changes and administrative pressures and the fact that what we are discussing is probably happening already. But I have to say that that is not going to be enough. It is essential to flag this up using the very same words as my noble friend the
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Minister used when he said, "We have flagged this up". But it is not flagged up in this Bill and it is important that it should be flagged up.
Many people have asked why racial harassment and racial violence are any worse than any other kind of violence. Indeed every kind of violence is dreadful. We were given an emotive example of a woman in a wheelchair who had stones thrown at her. But we have not talked about all the women who have stones thrown at them every morning when they take their children to school in Tower Hamlets. Can we say how many women, or indeed men, in wheelchairs have had stones thrown at them? But we can say how many thousands of people have been victims of racially motivated behaviour.
This is also a question of degree and of quantity. If society is suffering from a spate of a certain type of behaviour which we do not wish to see happening, then we have to do something about it. If there was a spate of women in wheelchairs being stoned, I would be standing here asking the Chamber whether it was not time that we introduced a special penalty for people who threw stones at women in wheelchairs. But that offence does not occur every day and I am not asking for that special penalty. However, I am asking for a remedy for something which has proved to be a blight on society. I am sorry to see that the most reverend Primate is not here. Earlier, he talked about protecting our society from an erosion of values. I think those words are appropriate to racially motivated behaviour. We need to protect our society from an erosion of the values of fairness, and the value of allowing people the liberty to go about their lives in the normal course of events.
I am not much moved by the argument that it is difficult to prove a racial motive or that the courts will be reluctant to find a racial motive, or that juries will be reluctant to find it. We have also been told there is a lower burden of proof in discrimination cases and therefore they are successful. But I remember very clearly when cases of racial discrimination were first taken to industrial tribunals. The noble Lord opposite knows perfectly well how difficult it was to persuade the industrial tribunals to find racial discrimination. They are getting better at finding it. Therefore it is a question of education, of training and of getting society to accept as a norm that racially motivated violence and racially motivated behaviour are not acceptable in our society.
I say a final word to the noble Lord, Lord Annan. It is not a matter of culture. It is a question of how people perceive other races. I am sorry to tell the noble Lord that, as the victim of a serious racial attack, I do not take such an abstract view as he does. It is very easy to sit here in this Chamber and take an abstract view of the lives of people outside. I do not believe that we should do that. We should think about how people's lives are blighted day by day.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 159G and 159H not moved.]
Midnight
Clause 138 [Prohibition on use of cells from embryos or foetuses]:
[Amendment No. 160 had been withdrawn from the Marshalled List.]
Lord Walton of Detchant Lord Walton of Detchant moved Amendment No. 160ZA:
Page 113, line 9, at end insert:
("( ) After the section 3A inserted by subsection (2) above there shall be inserted the following section—
"Modification of effect of Act
3B.—(1) Section 3A above does not apply in such circumstances (if any) as may be specified in or determined in pursuance of regulations.
(2) Regulations made by virtue of this section may provide that other sections of this Act shall have effect with such modifications as may be specified in the regulations."
( ) In section 45(4) (regulations under the Act) after the words "section 3(3) (c)" there shall be inserted "3B".").
The noble Lord said: The Human Fertilisation and Embryology Act established a statutory Human Fertilisation and Embryology Authority, of which the chairman, deputy chairman and the majority of the members must be neither doctors nor scientists involved in any aspect of research covered by the Act. That authority has dealt with many difficult issues since it was established. Last year it consulted the public on sex selection of children and said no to such selection for social reasons, just as it had said no to mechanisms of artificially producing identical twins.
The authority considers the use of donated ovarian tissue to be an important matter upon which the public should be consulted. The consultation document which it has published and circulated has aroused enormous public interest, and some 20,000 copies have been distributed on request. Replies have been received from an enormous range of organisations and individuals. Public meetings have been held to encourage debate, and the media have taken great interest in the issue.
The consultation document identifies many matters relating to the use of ovarian eggs and ovarian tissue derived from adult women, from females who have died, and from aborted foetuses. The Secretary of State for Health asked the authority for its advice following the consultation process, which began on 7th January and is to continue to 15th July, after which a report will be made to the Secretary of State which will include consideration as to whether legislative changes may be needed.
I am satisfied, as is the authority, that it has the necessary powers to regulate and strictly control embryo research and fertility treatment under its present terms of reference. Any research or treatment using foetal ovarian tissue would need a licence from the authority, which has no present intention of giving one. In fact, fertility treatment in adult women using foetal ovarian tissue is not going on, no one is contemplating it, and, even if they were, such a possibility would not be likely to arise for a minimum of 10 to 20 years from the present date.
It is, of course, the case that under the terms of reference and recommendations of the committee chaired by that distinguished cleric and academic, the Rev. Dr. John Polkinghorne, foetal tissue may under
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certain specific circumstances be used in research. As the Committee will be aware, brain tissue derived from aborted foetuses has been used with modest success in the treatment of Parkinson's disease. But all such research and the use of foetal tissue in other research projects is very carefully controlled.
In the Nuffield Department of Obstetrics and Gynaecology in Oxford there is a research team headed by Professor David Barlow. It has an international reputation and is in many respects leading the world. The team is undertaking a research project in which it is examining the development of human foetal ovarian tissue. That research is crucial, as it will provide useful information on the growth of immature human eggs which could well improve success rates in the treatment of adult patients. The use of such tissue in that project has been approved by the Central Oxford Research Ethics Committee and is being conducted according to the full Polkinghorne guidelines. Those include the provisions that the researcher may have no contact with the patient from whom the aborted foetus is obtained, that the decisions for the termination of pregnancy and the use of tissue in research are separated by an intermediary, and that full consent has been given by the patient. While parallel work using adult ovarian tissue supplied by volunteers undergoing sterilisation is also in progress, this is likely to prove much less successful because of the significantly lower numbers of eggs present in such tissue, which makes their isolation and study very much more difficult.
Many doctors and scientists are deeply concerned that Clause 138 as it stands could well discourage, perhaps even outlaw, certain research methodologies using foetal tissue which could now or in the future be invaluable in leading to the prevention of miscarriage, of ovarian cancer and of premature menopause., among many other possibilities.
When the Human Fertilisation and Embryology Bill was debated some years ago in your Lordships' House, I indicated how crucially important to the future of humanity was the research on early human embryos. Many of the prospects which I then discussed relating to the prevention and indirectly to the treatment of devastating human diseases such as cystic fibrosis, muscular dystrophy and others, have subsequently become a reality or are very close to being so. Future developments in this vital field of human embryo research will be determined by the availability of eggs with which embryos may be produced for such research. The richest source is the human foetus, and the unanimous view of the medical and scientific bodies which I have consulted is that, if licences for such work are eventually granted by the HFEA after full consultation, the potential benefits to human; health will be incalculable.
Having made those points, perhaps I may say that I understand the motives which led Dame Jill Knight to introduce into the Bill now being considered in Committee Clause 138 to render the use of foetal eggs in infertility treatment in adult females illegal. Nevertheless, I must say that it seems extraordinary that such a clause should, without any prior consultation with the medical and scientific community about its

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potential implications, have been inserted into a Bill dealing with a very different topic. What is even more remarkable is the fact that it would appear that the insertion of this clause may have received some support from Government at a time when a statutory authority was undertaking an extensive consultation process in order to advise the Secretary of State upon all relevant issues. It is almost certain that that consultation would have ended with advice being given to Government by the Human Fertilisation and Embryology Authority that the use of foetal ovarian tissue for infertility treatment of adults should be banned by law.
I must express the personal view that I, along with others, would for a number of reasons have found such a use both distasteful and objectionable. In that respect, I therefore support the objectives underlying the clause now standing as part of the Bill, while deeply regretting the indecent haste with which it came to be included. For the latter reason, I therefore have considerable sympathy with the noble Baronesses and the noble Lord who have indicated their intention to oppose the continuing inclusion of this clause in the Bill.
However, after consultation with distinguished scientists, including Professor Marcus Pembrey, the Government's own consultant adviser on clinical genetics, and taking account of the views of Dame Anne McLaren, Foreign Secretary and Vice-President of the Royal Society, one of the world's most distinguished embryologists, I have tabled this amendment in order to bring to your Lordships' attention a major problem of which I am sure Dame Jill Knight and her supporters in another place were unaware when Clause 138 was added to the Bill. I was indeed tempted to set down yet another amendment accepting the prohibition at present specified in the clause, subject only to such recommendations and proposals as the Human Fertilisation and Embryology Authority might now or in the future make after wide public consultation. I did not do so as I wholly recognise that this is a matter of such great importance to society that it is proper that major new developments, however vital they may be to the prevention and treatment of disease, should be fully considered in the future in both Houses of Parliament.
Accordingly, the amendment which I have set down maintains the general ban on the use of foetal germ cells and tissues in fertility treatment as provided for in Clause 138. However, it makes possible the introduction of regulations by the Secretary of State, having taken advice from the HFEA, regulations which must then be subject to approval by Parliament by affirmative resolution requiring debate in both Houses. Such regulations, if accepted, would permit the use of foetal eggs in research in exceptional circumstances specific-ally concerned with the prevention or treatment of serious human disease or dysfunction.
May I endeavour to explain one compelling reason why such an amendment is essential? All human cells contain a nucleus in which the majority of the body's DNA, embracing the genome or genetic constitution of the individual, is located. The cell itself is bounded by a membrane, but the nucleus rests within a substance called cytoplasm which in most cells occupies the
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greater part of its volume, being substantially larger than the nucleus. Within that nucleus are tiny structures called mitochondria which are the energy storehouses of the cell and which also contain a small number of genes, though these represent but a tiny fraction of human genes in comparison with those residing in the nucleus.
When the Human Fertilisation and Embryology Act became law in 1990, a clause in the Act indicated that a licence awarded by the HFEA could not authorise replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any other embryo or with the subsequent development of such an embryo. This clause on nuclear exchange was properly included to prevent cloning of human embryos so as to produce several genetically identical individuals. What was not fully appreciated then was that this clause would also outlaw a method of exchange of cytoplasm in an embryo produced by straightforward in vitro fertilisation; that is, the product of an egg fertilised by sperm from the woman's partner.
At that time medical science had not yet discovered the extent to which many serious diseases are caused by defects in the genes carried in the mitochondria in the cytoplasm, and treatment methods to control these conditions were not then under consideration. In the past few years it has become increasingly apparent that many different diseases causing, for example, severe epilepsy, mental handicap or dementia, muscular weakness or paralysis, various forms of deafness and adult-onset diabetes, can all be caused by mutations in mitochondrial genes. Such genes, too, have a most unusual pattern of inheritance, being exclusively passed on through the female line. Thus a healthy or mildly affected woman carrying such a mutation in just a small proportion of her mitochondria carries the considerable risk that any child of hers, of either sex, could develop severe mitochondrial disease. Hence, all children born to such a mother are at risk and methods of prenatal diagnosis, which are allowed under the Human Fertilisation and Embryology Act and which are proving successful in many other conditions, are by the very nature of mitochondrial inheritance, unreliable. Only within the past two years has it become clear that a form of cytoplasmic exchange in conjunction with standard in vitro fertilisation in adult human subjects would be able to free the baby and its descendants from mitochondrial disease. This would be a permanent cure.
Such a possibility could only follow a proposal from the Human Fertilisation and Embryology Authority under Schedule 2(3) of the 1990 Act, clearly stating that a licence under this paragraph cannot authorise altering the genetic structure of any cell while it forms part of an embryo, except in such circumstances (if any) as may be specified in or determined in pursuance of regulations.
The use of cytoplasm from foetal eggs could fulfil this objective, but would still need to be approved on the recommendation of the HFEA by resolution of each House of Parliament. The use of eggs from aborted foetuses may prove in the future, through research, to be useful in many other as yet unpredictable but widely acceptable ways.
For this reason, I and the scientific community believe that the amendment which I have tabled and

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which, as I said at the outset, maintains the ban on the use of foetal eggs for adult fertility treatment, will nevertheless allow such crucial developments in research and in the prevention of human mitochondrial diseases to be carried out, but only after the fullest consultation under regulations approved by both Houses of Parliament. I beg to move.
Lord Kennet: The House will have listened with the greatest care and attention, as it always does, to what the noble Lord, Lord Walton, had to say. It is very late and I shall be extremely brief, but I would like to make four points.
Mrs. Knight's clause in the Bill does not mention research. It can have no effect in banning research, and I am puzzled as to why anybody should think that it could. Since the noble Lord is content with the proposed ban on the use of foetal eggs for the generation of new persons, it seems to me that another approach is needed.
The idea of introducing the new clause which the noble Lord proposes permitting regulations to be made is extremely broad and non-specific. He stated that these regulations would be used only to secure research. He even outlined the kind of research to which the use of the regulations would be confined. But of course that is not what the noble Lord's new clause says. It leaves infinite power to introduce regulations on this subject and on any other subject.
The Committee will have noticed that subsection (2) of the new clause would empower the Government to change by regulation any part of the 1984 Act. That is clearly unacceptable, and the Committee would be wrong to accept it.
Lastly, if there is a piece of research which has been inadvertently prohibited—as the noble Lord said, if I understood him correctly, not by this Bill but by an earlier Act—I submit that this Bill is a very good opportunity for the introduction of the perfectly straightforward amending clause concerning the earlier Act in this one particular.
The Duke of Norfolk: I should like to speak just to Amendment No. 160ZA in the name of the noble Lord, Lord Walton. Surely this is the most obvious example of a Henry VIII provision. The noble Lord is suggesting that if this clause is passed, the Department of Health will be empowered to change, not only the Human Fertilisation and Embryology Act, and add to it and amend it, but also the abortion Acts. It would be most undesirable for the Committee to pass the noble Lord's amendment, which would give a complete blanket authority. It is well described as being a Henry VIII provision. I should like to speak later about Clause 138.
12.15 a.m.
Baroness Jay of Paddington: I should like to speak in support of this amendment. In doing so, I have put my name to the amendment but I should like to make it clear that that is done in a personal capacity, and if the noble Lord, Lord Walton, decides to test the opinion of the Committee there will, of course, be a free vote on these Benches, as I understand there will be on the government side.
I am very grateful to the noble Lord, Lord Walton, for
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the way in which, as always, he gave a most lucid explanation of what is scientifically a very complex area. In supporting the amendment, perhaps I may make a few points which I would describe as "lay" ones.
The noble Lord, Lord Walton, demonstrated in discussing the new work on the mitochondria how fast medical science is advancing in this field. I have to confess that the word "mitochondria" was totally unfamiliar to me until about six weeks ago when I started to listen to some of the arguments about Dame Jill Knight's new clause in this Bill. The Committee heard from the noble Lord, Lord Walton, that when the 1990 Bill was passed the importance of the mitochondria was not understood. Now scientists in this country have discovered that defects in the mitochondria can cause the very serious conditions to which the noble Lord referred.
I say to my noble friend Lord Kennet that my discussions with the scientific community—obviously much more superficial and less wide and deep than those of the noble Lord, Lord Walton—suggest precisely what he was saying did not occur with this Bill; namely, the sense that a research blight will be cast over their entire field if this clause stands part of the Bill. Once again, in the whole area which the noble Lord, Lord Walton, described so clearly, British scientists have been international leaders, as they have been ever since 1978 when the first test-tube baby following in vitro fertilisation was born in Oldham in Lancashire.
Our scientists have pioneered discoveries in this wide-ranging area. They have done it responsibly, sensitively and with great concern for the ethical dilemmas that their work can create. Many couples in this country have been helped towards great happiness as parents by the therapeutic application of some of the new scientific techniques. One is bound to remember that one in 10 couples in this country is officially categorised as medically infertile. But the technique of using donated ovarian tissue or foetal eggs to solve infertility is, as the noble Lord, Lord Walton, said, not possible today and is unlikely to be possible for another 20 years. As I said, the clause will cast a research blight over an area of research which may produce therapies that may help infertile couples but which may also produce important findings, as the noble Lord, Lord Walton, described, about inherited diseases and other serious problems such as ovarian cancer, miscarriage and premature menopause.
At this stage we just do not know where the scientific inquiry will lead. But we should not be frightened by that. Equally, we do not know what public attitudes may be in the future towards knowledge and techniques which we cannot yet foresee. But the clause places a blanket ban on an area of science in which, as I said, we have been world leaders. We should be proud of that. We should be encouraging and supporting these exciting developments and not attempting to suppress them.
We have also been leaders in regulating the experimental work in this very sensitive area. A charitable view of the present situation could be that the Department of Health officials and Ministers in another place did not realise the extent of the potential damage

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to science when they encouraged and helped Dame Jill Knight's amendment through the other place. The charitable view, frankly, is one that I should like to accept, given that the Government have previously had a good record on appropriate legislation in this field; and I should like to accept it in the hope that this amendment will prove to be acceptable.
After all, until now the Government's approach has been to introduce rigorous regulation after extensive consultation. The Committee may remember that the 1990 Bill—I was not here at that time—was introduced six years after the noble Baroness, Lady Warnock, had reported on the subject. Those six years allowed time for wide discussion of all the social issues involved as well as practical debate about the most effective and trusted form of regulation. That was precisely the process that the Human Fertilisation and Embryology Authority was following in its consultation on ovarian tissue donation when the whole operation was hijacked by Dame Jill Knight's Clause 138. It was slipped through the other place at an even more inhuman hour than we are now at tonight.
The amendment we are discussing would allow the HFEA consultation to go on. It is worth reminding the Committee, as did the noble Lord, Lord Walton, that 20,000 consultation papers were sent out, that 8,000 replies have already been received and that the consultation period has been extended until July to allow a special BMA conference on this subject to be held.
In the three years of its existence the HFEA has gained wide respect and should be allowed to fulfil the statutory functions intended by this Government, which, after all, set it up. I disagree entirely with the Early Day Motion which has been circulating in another place, criticising individual members of the authority. I hope that the Government will back its appointees both publicly and privately. I have great confidence in the integrity of the HFEA and would be happy to allow it to make decisions about further work on donated ovarian tissue. However, like the noble Lord, Lord Walton, I realise that many Members of the Committee and Members in another place feel that in this area they want further parliamentary safeguards. Those safeguards are provided for by the amendment. Work will proceed only when and if both Houses of Parliament introduce affirmative regulations to allow it to. That seems to offer a sensible compromise. The amendment protects parliamentary authority without undermining the HFEA, which is the statutory licensing body. It leaves open the possibility of vital research which may lead at some time in the future to new fertility treatments. I hope the amendment will be accepted because, in my view, to reject it really is to vote for a flat earth.
Lord Lester of Herne Hill: I speak in support of the amendment which stands also in my name on the Marshalled List, and I can do so extremely briefly because I made a full speech on the subject in the debate on 1lth May initiated by the noble Lord, Lord Kennet.
First, I pay tribute to the Human Fertilisation and Embryology Authority, appointed as a wide and
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balanced authority with balanced views and expertise. I pay tribute also to the careful process of consultation on the use of donated ovarian tissue which it undertook. But I express regret, as have other Members of the Committee, that the other place was persuaded to accept an amendment which would make the process futile.
I understand the objections raised by some Members of the Committee to the form of the amendment as it stands; that is, as an overbroad delegation of law-making authority beyond Parliament—a Henry VIII clause. I see that objection but I hope that the Minister, whom I previously described as a voice of great moderation and reason in this Chamber, will be able to indicate that the Government can give effect to the aim of the amendment in a more appropriate parliamentary form, the object being to enable the process of consultation to proceed and to back the authority—I very much echo what the noble Baroness, Lady Jay, said in regard to the need to back the authority —in the difficult work that Parliament has given it to perform.
The Earl of Halsbury: I speak tonight as a member of the all-party family and child protection group of both Houses of Parliament. The chairman, Dame Jill Knight, put this clause into the Bill under the 10-minute rule. I have never had the privilege of sitting in the House of Commons, but I understand that it is a device for enabling individual Members to intervene in a debate effectively, albeit at possibly a late hour of the night.
The clause has widespread support throughout the country. It is important to realise exactly what the amendment imports. Dame Jill Knight's Amendment No. 138 cross-references to the Human Fertilisation and Embryology Act 1990. In relation to regulations it says that the Secretary of State—not either House of Parliament—
"may make regulations for any purpose for which regulations may be made under this Act. The power to make regulations shall be exercisable by statutory instrument. Regulations may make different provisions for different cases",
and so forth. We have listened time and time again to positive and negative instruments and the rather dreary debates to which they lead and we have seen our incapacity to do anything about them. We do not appreciate them other than to knock them out of court. There is nothing in Clause 138 that inhibits research. All it inhibits is the final stage of research when one can plant a synthetic egg into a human being. Under the amendment that will not require a regulation but a new Act of Parliament.
As the matter stands, it is a perfect example, as stated by the noble Lord on the Liberal Benches, of a Henry VIII clause; and we should have no truck with clauses of that kind. I add my appeal to my noble friend to withdraw the amendment and reconsider its terms at a further stage of the Bill.
The Marquess of Lothian: I should like to support my noble friend behind me and the noble Lord, Lord Kennet, in what he has stated about the broad effects of regulations. I think that the matter goes too wide on a subject upon which many noble Lords have very sincerely held views and different opinions. We should

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be very careful about extending the regulations procedures in relation to something which is of such importance and sensitivity and - I hesitate to say this -in some respects possibly some danger to people. Therefore, I hope that the noble Lord will consider withdrawing the amendment or the Minister will consider resisting it.
Baroness Ryder of Warsaw: The idea that the eggs of aborted foetuses should be used to conceive children must give cause for concern for many reasons. Firstly, it involves creating a child whose mother was never born. The effect upon a child of discovering that she exists only because her grandmother chose to have her mother aborted are beyond calculation.
Secondly, what does that situation say about a society which disposes of unwanted children and plunders their bodies for spare parts to create other children? Thirdly, we must ask what right anyone has to use the eggs of a child in that way.
The Human Fertilisation and Embryology Act, which we debated very fully in 1989 and 1990, requires that eggs should not be used without the consent of the donor. Can it ever be right to make a person a parent without their consent, and how can it be possible for an unborn child to give consent? That injustice is compounded, not mitigated, by the fact that the person concerned has been deprived of her own life.
It has been suggested that the use of eggs from naturally miscarried babies would be acceptable. I do not accept that point of view. A child would be created whose mother had died before she was born, and a child would be made a mother without her consent.
It has been suggested that a woman should be allowed to use the eggs of her own miscarried baby to conceive again, which I find a little bizarre. Why would a woman who has successfully conceived need to do that? Would any woman want to carry her own grandchild? If the same man fathered the second child, he would be both father and grandfather and the union would be incest.
It causes me great concern to see medicine going in this direction. For the scientists who are making the proposals, eggs and sperm are simply raw material for some in a manufacturing process designed to deliver a baby. Where they come from is of no consequence so long as they are fertile. However, it does matter. The whole point of donating eggs is that they can be fertilised by the sperm of the man in order that the child will be his. Otherwise, couples would be happy to adopt or have donated embryos, of which there are several thousand in cold storage.
If the origin of the sperm matters to the father and to the child, how can the origin of the egg be of less consequence? How does one cell provide a vital link between the generations while the other is merely an anonymous piece of genetic material salvaged from a disposable donor?
Eggs and sperm are the means by which we pass our identity to future generations. This matters very much to both parents and children, as is evidenced by the number of adopted children who seek out their biological
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parents. A child created in this way will be deprived of a biological identity. Medicine today often needs to know the ancestry of a child even to treat the patient
Medicine still continues to try to restore fertility when it has been lost. I do not believe it should try to turn human reproduction into a consumer-driven manufacturing process. That we can even contemplate creating children from the bodies of unborn babies shows that we are heading in this direction. I have seen for myself, albeit 50 years ago, medical experiments made by scientists in the Nazi movement. They, too, believed that for the Aryan race their experiments would prove good. I mention that not in any way to decry what scientists and the medical profession do in this country but to draw the attention of the Committee to what could happen in the worst event. As Dr. James Le Fanu, a GP and newspaper columnist, recently wrote:
"When … research involves … the transplanting of aborted fetal ovaries then the value of human life is degraded and stripped of its mystery".
We live in an age of great moral confusion, in which we are reluctant to express a firm view on a moral issue. That is one of the failings of our age. In this matter, I do not think we should have any fear of sending a clear message that these procedures are not acceptable. In doing so, we will have the support of a very large part of the British public, a great number of whom are absolutely unaware of what Is being said here and the serious consequences.
In the Book of Hebrews is written:
'To be alive is no man's gift: It is God's gift".
We are mere mortals. We take over God's work: at our peril.
12.30 a.m.
Baroness Warnock: I rise to support the amendment for two reasons. First, it would give the opportunity for the HFEA to complete the survey, come to its conclusions and make its recommendations which it could then present to Parliament. That is a very proper outcome, given that it is fulfilling the functions for which it was set up in making this elaborate questionnaire. Secondly, the amendment would leave open the possibility of the kind of research of which we have heard. That is of enormous importance. I do not believe that any moral judgment, however strongly felt, can be based on ignorance if it is to have any validity.
Our ignorance of these scientific matters is fairly profound. When I say "our", I mean lay persons. However, we have had this evening a very clear explanation of the kinds of research beneficial to medicine but nothing particularly to do with the remedies for infertility which may possibly come from the continuation of this kind of research and which would be under threat from this clause. If the: door were shut to some outcomes of the research, the research might also seem to be under threat.
It is true that though the clause itself says nothing about research, Dame Jill Knight very definitely said that her intention in introducing the clause was to say that scientists might just as well give up this kind of research and give it up for good. That was the intention of the clause as it was first introduced. I therefore think

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that an amendment such as we are considering is very well worth supporting simply to leave open the possibilities of highly beneficial research. Therefore, I very much hope that the Government may feel that they can accept an amendment that would have the same effect as this, if not this amendment itself.
Lord Kennet: Perhaps I may ask the noble Baroness a question before she sits down. Is the kind of research which tends towards the generation of new babies by this means the same kind of research as that outlined by the noble Lord, Lord Walton, as being of particular value for the future of genetic therapy?
Baroness Warnock: As far as I understand it, the research using foetal tissue would in every case, for whatever it was going to be used, have to come before the HFEA. I suppose that the research would be judged by the HFEA according to whether it was good scientific research and was likely to have a successful outcome, whatever that outcome. So in one sense, as I understand it, it would be the same kind of research because the same kinds of foetal tissue would be used and the construction of the egg would be under examination in either case. My noble friend will put me right if I am wrong on that.
Baroness Strange: I should like to support my honourable friend Dame Jill Knight. There is an old rhyme which begins:
"Where do you come from baby dear? Out of the everywhere into here".
I cannot remember more, but it seems to me to encapsulate what the most reverend Primate the Archbishop of York said, 'The procreation of children is literally a participation in the creativity of God. Its basis is love".
Although unfair to birds, I have to admit that I do not believe that babies are brought in by flocks of flying storks, but I do not believe either that, like rag dolls, they should be made up of discarded bits and pieces of humanity, some of them dead. A baby is a gift from God.
Lord Ashbourne: I cannot commend the amend-ment to the Committee because it would allow the department to change legislation at will. Not only would that render Clause 138 quite meaningless, but it would also mean that any other parts of the Human Fertilisation and Embryology Act could be altered by the department. As the noble Lord, Lord Kennet, and my noble friend the Duke of Norfolk argued so cogently, that ought to be unacceptable to your Lordships. It certainly fills me with a very deep unease. I therefore urge the Committee not to support Amendment No. 160ZA.
Lord Swinfen: I have one quick question. I understand that, under the Human Fertilisation and Embryology Act 1990, the ultimate donor has to give informed consent for the use of material. Who would be able to give informed consent? I should have thought that the consent would have to come from the foetus.
Lord Robertson of Oakridge: I should like to make one point. Before the Committee decides whether to accept the amendment involving a considerable and wide-ranging delegation of power, may I remind the Committee of what the House of Lords' Select Committee which considered the scrutiny of delegated powers stated in its 1993 report? It stated:
"We were very impressed by the weight of evidence suggesting that parliamentary control over delegated legislation was in many ways so limited as to be ineffective".
Viscount Brentford: I have one question in connection with which I should like to quote from Hansard in another place. On 22nd February this year, Dame Jill Knight said clearly:
"it is not intended to stop research or to stop the use of human eggs donated by women".—[Official Report, Commons, 22/2/94; col. 151.]
The noble Baroness, Lady Warnock, appeared hesitant about the question of whether the provision could stop research. It seems to me that it is not Dame Jill Knight's intention to stop research. Perhaps my noble friend the Minister will be able to tell us whether the provision will stop such research. It seems to me that it is restricted to fertility services. That should be all that we are talking about.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): I wish to add my gratitude to the noble Lord, Lord Walton of Detchant, for introducing the amendment with his characteristic authority and clarity. The Government's position is one of neutrality both on this amendment and on Clause 138. We have some strong reservations about the effect that the amendment has and that has been addressed by Members of the Committee tonight. I shall come to that later. We believe that this is a very sensitive issue. As the noble Baroness, Lady Jay, said, we believe that this is a matter for individual judgment and conscience of Members of the Committee.
For some of us, important matters of conscience are in conflict with the natural desire to see progress in the understanding and treatment of serious disease. I am a supporter of medical research and I have great respect for the clinicians and scientists who work in this important field. I also fully understand the great concern of those who find unacceptable the prospect of using eggs from aborted foetuses in the treatment of infertility.
Clause 138 prohibits the use of female germ cells taken or derived from an embryo or a foetus to achieve a pregnancy. It also precludes the use of an embryo created by using such cells to achieve a pregnancy. It does not ban research using female germ cells. I understand the confusion referred to by the noble Baroness, Lady Warnock, and my noble friend Lord Brentford. I wish to emphasise that only the use of these cells to achieve a pregnancy is banned, not research in this field.
The Government acknowledge the sorrow and sadness that infertility can cause. Medical science has made great progress bringing hope through in vitro fertilisation to many couples. But Parliament has quite rightly decided that developments in this area should be subject to certain controls.

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We are aware that some people, including Members of your Lordships' House, consider Clause 138 to be premature and unnecessary because it pre-empts the Human Fertilisation and Embryology Authority's consultation exercise. But of course the clause addresses only one aspect on which the authority is consulting.
The consultation document addresses wider issues which are not dealt with by the new clause. These include whether ovarian tissue, other than foetal, should be used in infertility research or treatment, as well as the problem of obtaining consent where the eggs are not the woman's but those of her foetus. That matter was referred to by my noble friend Lord Swinfen.
These issues will still need to be considered by the Government, following the advice of the authority after the consultation ends in July 1994. The Government have every confidence in the authority and appreciate the commitment of its members and the work that they undertake. But the Government also respect the will of Parliament and its prerogative to reach decisions on these difficult ethical issues.
I turn to the amendment. We share the views expressed by the noble Earl, Lord Halsbury, the noble Lord, Lord Kennet, and my noble friends the Duke of Norfolk, Lord Ashbourne and Lord Lothian, that the regulation-making power is very broad indeed. The Committee will clearly wish to consider whether such a broad power would be appropriate and whether it is indeed necessary to achieve the purpose of the amendment. Members of the Committee are, of course, cautious about scrutinising proposals for delegated powers contained in Bills. The amendment before the Committee includes a power to modify all other sections of the Human Fertilisation and Embryology Act 1990. In this respect, it goes much further than other relevant powers under the Act. The Committee will also wish to consider the wisdom of taking such a major step without wider consultation than is available during the passage of the Bill.
The noble Lord, Lord Lester of Herne Hill, asked whether the Government will be prepared to give the same assistance to the noble Lord, Lord Walton, as it gave to Dame Jill Knight in providing drafting assistance in order to ensure that her amendment was workable. If it would be for the convenience of this Committee to give effect to its wishes, I will certainly impress on my right honourable friend the Secretary of State for Health that similar facilities should be offered to the noble Lord, Lord Walton.
The noble Lord and the noble Baroness, Lady Jay, in explaining why they consider this amendment to be justified, referred to mitochondrial disorders. As has been explained, it might become possible to help couples at substantial risk of having a child with a mitochondrial disorder to achieve a healthy child. An egg has a nucleus surrounded by cytoplasm which contains mitochondria. The mitochondria consists of DNA which controls aspects of the metabolism of the egg.
It has been suggested that by replacing the cytoplasm of an egg which contains disordered mitochondria with the cytoplasm of an egg derived from a foetus, a healthy egg could be produced. That could be fertilised in vitro
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and the embryo transferred back to the woman, with the aim of achieving a pregnancy. A child conceived in that way could reasonably be regarded as having a genetic constitution derived from its parents, although its mitochondrial DNA would have come from a separate source. Although this intervention is at the moment purely theoretical, the prospect of achieving it raises wider issues.
The correction of a genetic disorder using such a technique would affect future generations who would inherit the altered genetic material. This is really a form of germ line gene therapy which is not at present permitted in the United Kingdom.
In 1989 the ethical issues raised by the prospect of gene therapy were fully considered by the Clothier Committee. The committee's report was presented to Parliament in 1992. It recommended that germ line gene therapy should not yet be attempted, and the Government accepted that recommendation.
The Clothier Committee's successor, the Gene Therapy Advisory Committee, under the chairmanship of Professor Dame June Lloyd, is responsible for reviewing all proposals for human gene therapy research and for advising on its ethical acceptability. The Government look to that committee for advice on developments in this field, including the acceptability of germ line gene therapy. I suggest to your Lordships' House that it would be more appropriate to wait until the Gene Therapy Advisory Committee and Parliament have considered the wider implications of this form of therapy before reaching any firm conclusions tonight.
Consideration of the ethical aspects of research and treatment using human embryos is one of the Human Fertilisation and Embryology Authority's responsibilities. But the issues involved in germ line gene therapy go wider than the authority's remit and expertise. Parliament has a responsibility to protect future generations. We must safeguard their welfare by ensuring that treatment which involves germ line gene therapy is not permitted in any form until full and thorough consideration has been given to its safety.
This is a free vote issue tonight and, therefore, I leave it to the individual judgment of your Lordships as to which way to vote in a Division if the noble Lord, Lord Walton, chooses to divide the Committee.
12.45 a.m.
Lord Walton of Detchant: I am grateful to all noble Lords who have spoken in the debate. I am grateful to those who have supported the amendment either in its entirety or in principle.
One of the problems that we face in considering an issue of this degree of sensitivity, particularly at this hour of the morning, without going into very great detail, is that there are situations in which it is ultimately exceptionally difficult to separate issues relating to treatment from those relating to research, because the two have margins which are at times blurred. Nevertheless, I have made it clear, and I hope that your Lordships will accept, that the principle underlying the amendment introduced into the Bill by Dame Jill Knight relating to the objection to the use of foetal eggs to create new children by fertilisation of adult infertile

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females was something which I found repugnant. And that principle is one which I wholly accept. Nevertheless, in my view it would have been better if the Government and Dame Jill Knight had waited until the Human Fertilisation and Embryology Authority consultation process had been completed. A number of noble Lords have talked about widespread support in the country, but we do not know the extent to which that support exists until the consultation process has been completed.
I make one important point relating to the issues raised by the noble Baroness, Lady Ryder, and the noble Baroness, Lady Strange, in looking at the issue of mitochondrial disease, which I highlighted as being one of the reasons why I wished to see the amendment introduced into the Bill.
The important issue is that, if an adult human female who has a mitochondrial disorder and who therefore is likely to pass on that disorder in severe form to all of her children of either sex wished to undergo in vitro fertilisation, it would be possible to take her cells, with the nucleus of her cells, and to introduce simply the cytoplasm derived from foetal cells carrying normal mitochondria to prevent that disease from developing.
In talking about gene therapy, I must say that the Minister is absolutely right: this is a form of gene therapy, even though some 70,000 genes reside in the nucleus of the cell and fewer than 50 genes reside in the mitochondrial. For that reason, the product of that particular pattern of fertilisation would clearly be the child of the mother from whom the nucleus was derived.
It is a complicated matter into which I do not have time to go in detail at this hour of the morning. On the
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other hand, I wholly accept the strictures of the noble Earl, Lord Halsbury, and of the noble Lords, Lord Kennet, Lord Ashbourne, Lord Robertson and others who said that the proposals in the amendment go far too wide and that they confer delegated powers—indeed, Henry VIII type powers—upon the Secretary of State, much wider than I had contemplated.
When I tabled the amendment, I had, perhaps rather naively, concluded that, as any regulations dealing with the issue would have to be confirmed by both Houses of Parliament, that was a sufficient safeguard. However, I now recognise the validity of the criticisms which have been levelled at that proposal. Hence, while accepting with gratitude, as always, the very courteous reception that my amendment received from the Minister on behalf of the Government, and accepting her offer of help to see whether we can establish an acceptable form of words which would not give a message to the scientific and medical community that the whole purpose underlying the clause is not just to ban treatment but to carry a negative implication in relation to the future of research, if we can devise such a suitable form of words for reconsideration on Report, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 138 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 seven minutes before one o'clock.